Businesses need to advertise to survive. For small businesses, signs are their most effective and least expensive option. But the City of Sacramento banned businesses from using sandwich boards, banners, and other portable signs and enforced its ban against the owners of a small independent gym, Carl and Elizabeth Fears. Without their sandwich board, the Fears lost countless customers. So the Fears fought back to protect their gym and the First Amendment right of every business to communicate with the public—and won.
For years, husband and wife Carl and Elizabeth relied on a sandwich board outside their gym, Got Muscle Health Club, to bring in clients. The gym is located at a “blink-and-you’ll-miss-it” building on a busy street; many would not even know the gym is there without the sign. The city threatened to prosecute the Fears’ sign with fines so severe, they would destroy their business. Although Got Muscle cannot survive without advertising, it had no choice but to remove the sign.
The city’s arbitrary restriction did not even apply to all messages. For instance, the Fears could legally display the same sign, in the same location, if it advertised real estate or a non-profit group’s event.
Sign codes like Sacramento’s threaten small businesses across the country. Local officials severely restrict signs, often in the name of “traffic safety” or “aesthetics,” with no proof that signs negatively affect either. Like in Sacramento, the side codes are often riddled with exemptions, undercutting officials’ claims that these restrictions are necessary.
This is not just bad public policy, it is unconstitutional. Under the First Amendment, the government cannot arbitrarily restrict speech, nor can it pick and choose what messages it likes best.
That’s why Carl and Elizabeth joined the Institute for Justice in filing a free-speech lawsuit against the city in federal court on Tuesday, August 13, 2013. Sacramento immediately backed down. Two weeks after the lawsuit was filed, the City agreed not to enforce the challenged provisions of the sign code against the Fears or anyone else in the City. In November 2013, the City amended its sign code to allow businesses to have sandwich board signs, banners, flags, and other temporary signs for the first time in decades. The Fears are thrilled to once again have their sign and also to have helped other businesses throughout the City.
Memo in support of preliminary injunction
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Introduction: Free Speech and Internet Freedom
Carl and Elizabeth Fears opened Got Muscle Health Club in Sacramento, Calif., four years ago and have dedicated their lives to making the gym succeed. They open the gym at 5:30 a.m. and often work 16-hour days. The gym is their passion.
Advertising is vital for Got Muscle. The gym is essentially invisible. Its windows are tinted and the actual entrance to the gym is in the back of the building facing the parking lot. From the road, the gym just looks like a generic office building. So the Fears used a sandwich board sign (also known as an A-frame) and window signs to bring in clients. The Fears’ A-frame sign is particularly effective; when they put it out, people often walked into Got Muscle and commented that they had not known the gym was there.
But in recent months, the city decided that this had to stop. It contacted both the Fears and their landlord and threatened to fine them up to $900 a day unless the Fears stop displaying their A-frame. The Fears are in a Catch-22: the fines are so severe, they would destroy Got Muscle—yet the Fears do not believe if they can survive without their sign.
Ultimately, the Fears felt they had no choice but to stop using the sign. Now, their walk-in traffic has dropped significantly. Most of Got Muscle’s window signs are also illegal under the sign code, but the city has not yet targeted them. So Got Muscle has left them up, risking prosecution. The sign code may force Got Muscle to move to a different location, or shut down altogether.
The sign code does not even apply to everyone. Real estate signs, signs advertising events for nonprofit groups, political campaign signs, displays of government flags, religious symbols, and the emblems of historical organizations are either entirely exempted from the sign code’s severe provisions or have only minimal regulations. Got Muscle could put out an A-frame sign that says “Building for Rent” but not one that says “Got Muscle: Join Now.” Similarly, Got Muscle could display multiple window signs if they carried a different message. Adding to this inequity, the city has admitted to ignoring countless illegal signs near Got Muscle.
Not only may Sacramento’s arbitrary rules put Got Muscle out of business, they are also unconstitutional. The Government cannot haphazardly restrict businesses’ free-speech right to advertise, nor can it regulate speech according to its content. So on August 13, 2013, Carl and Elizabeth teamed up with the Institute for Justice to challenge Sacramento’s sign ban in federal court. The Fears are not asking for money; they just wants to exercise their rights to earn an honest living and advertise their business.
The right to advertise effectively, along with the right not to be punished for speech based on content, are so well established that the Fears are seeking a preliminary injunction to protect their signs while this case is pending. Courts only issue preliminary injunctions when they believe plaintiffs are “likely” to win. The Court is expected to issue a decision on the injunction request soon.
The City’s Sign Code Bans Got Muscle’s Most Effective Signs
The majority of Got Muscle’s signs are illegal under the city’s sign code.
The sign code bans A-frame signs, banners, portable signs “of any nature” and a variety of other signage,1 as well as places severe restrictions on the signs businesses can have. Got Muscle is limited to only two signs displayed on its building—and only then with permits from the city.2 Got Muscle has seven window signs, so this means that five of them are illegal. If Got Muscle used one of these signs to identify the gym, then that leaves Got Muscle with only one sign to advertise its services and time-limited discounts.
The city does not apply its restrictions to all messages, however. For instance, the sign code exempts from its restrictions real estate signs, political campaign signs, religious symbols, government flags, emblems of historical groups, and temporary signs of civic, philanthropic, educational and religious organizations.3 Any of these signs could be displayed on an A-frame or banner, and these signs do not even require a permit. The city also exempts many of these signs from its two-sign limit.
The code’s arbitrary nature is exacerbated by its arbitrary enforcement. The city ignores hundreds of illegal signs within just a few blocks of Got Muscle and businesses can never know if they will be targeted. In May, City Code Enforcement Manager Ron O’Connor told the media that, “If we stopped at every A-frame sign, we wouldn’t get 10 blocks from our office ever. We have other issues. We prioritize everything by health and safety issues, and A-frame signs are pretty low on the list.”4 The city apparently only enforced the sign code against Got Muscle because someone complained to the city about the signs for an unknown reason.
While signs are a “low priority” for the city, they are the lifeblood of small businesses, including Got Muscle. By banning the Fears’ signs, the city is jeopardizing their business, and violating their right to free speech.
The City’s Sign Code Violates the First Amendment
Under the First Amendment, the burden is on the government to show that a speech regulation is constitutional. Sacramento will never be able to meet that burden with its sign code. In 2006, the 9th Circuit struck down a nearly identical sign law in Ballen v. City of Redmond. Additionally, because of a recent Supreme Court decision, the applicable constitutional standard is even stricter now than it was in 2006.
In Ballen v. City of Redmond,5 the Institute for Justice won a challenge against Redmond, Wash.’s ban on portable signs. There, a bagel store wanted to advertise with an employee wearing a sandwich board sign on the sidewalk. The United States District Court for the Western District of Washington found the code unconstitutional, and the 9th Circuit agreed.
The 9th Circuit said that Redmond’s ban was unconstitutional because it was arbitrary and not carefully thought out. Specifically, the city’s multiple exemptions to the sign code, including an exemption for real estate signs, undermined the city’s claims that the bagel sign and other portable signs would cause sidewalk congestion or distract traffic. Here, Sacramento’s sign ban and sign exemptions are almost identical to those found unconstitutional in Redmond.
In fact, the city bears an even more difficult burden now than Redmond had in 2006. In 2011, the Supreme Court held in Sorrell v. IMS Health that regulations cannot disfavor commercial speech, or a specific type of commercial speech, based on its content.6 When laws make distinctions among types of commercial speech—such as allowing real estate signs but not signs with other words—then strict scrutiny applies, which virtually guarantees that the government will lose.
Here, Sacramento’s sign restrictions burdensome messages more than others. For example, it allows real estate signs, signs advertising nonprofit groups’ events, political campaign signs, government emblems and other content to be displayed on A-frames. Most of this content, plus religious symbols and emblems of historical groups, are also exempt from the city’s two-sign limit for businesses to display on their building. And all of this content is exempt from having to secure a sign permit. Under Sorrell, Sacramento cannot justify these arbitrary exemptions.
Even if Sacramento’s sign ban did not have multiple exemptions, the city cannot prove that its restrictions are necessary. In fact, scientific studies show that restricting business signs does nothing to improve traffic or pedestrian safety. To the contrary, studies show that business signs aid traffic safety by helping drivers find their destinations.7
This case is an important step in freeing entrepreneurs from artificial restrictions on their ability to tell the public about their products and services. The end goal is a rule of law that permits Got Muscle and businesses across the country to freely communicate with their community.
Sacramento cannot justify its sign code. The right to advertise effectively, along with the right not to be punished for speech based on its content, are so well established that the Fears are seeking a preliminary injunction to protect their signs while this case is pending. Courts only issue preliminary injunctions when they believe plaintiffs are “likely” to win. The Court is expected to issue a decision on the injunction request soon.
The Plaintiffs are Carl and Elizabeth Fears and their business, Fears Fitness, Inc., doing business under the name “Got Muscle Health Club.”
The Defendant is the City of Sacramento, California.
Carl and Elizabeth are bringing two types of First Amendment claims: (1) that the city unconstitutionally bans speech based on its content and that (2) the city’s sign code unconstitutionally restricts commercial speech more broadly than is necessary to satisfy any legitimate governmental purpose.
The Fears are not asking for money. Instead, they just want a declaration stating that the city’s sign code is unconstitutional and a permanent injunction stopping the city from enforcing it. The Fears are also asking for a preliminary injunction that would allow their signs to remain in place until the court makes a final decision.
The Litigation Team
The litigation team consists of Institute for Justice Attorney Erica Smith8 and Institute for Justice Washington Chapter Executive Director Bill Maurer.9
About the Institute for Justice
The Institute for Justice is the national law firm for liberty and the nation’s leading advocate for First Amendment rights and economic liberty. The Institute has challenged government restrictions on small businesses’ signs across the country, including a ban on a mural for a dog daycare center in Arlington, Virginia10; a ban on a bagel store’s sandwich board sign in Redmond, Washington11; a restriction on window signs in Dallas, Texas12; a ban on for-sale signs on cars in Glendale, Ohio;13 and a ban on portable signs in Lynnwood, Washington.14
 Sacramento Sign Code § 15.148.670.
 Sacramento Sign Code § 15.148.160 (A)(2).
 Sacramento Sign Code § 15.148.600.
 Ballen v. City of Redmond, 466 F.3d 736 (9th Cir. 2006).
 Sorrell v. IMS Health, 131 S.Ct. 2653 (2011).
 See, e.g., Philip M. Garvey et al., Real World On-Premise Sign Visibility: The Impact of the Driving Task on Sign Detection and Legibility, U.S. Sign Council (2002), available at http://www.westford-ma.gov/Pages/Government/TownDepartments/BoardsandCommittees/WestfordMA_Planning/S0453A916.18/USSCReal%20World%20On-Premise%20Sign%20Visibility.pdf; U.S. Small Business Administration, The Signage Sourcebook: A Signage Handbook 11–35, 420–421 (2003); Charles R. Taylor et al., On-Premise Signs as Storefront Marketing Devices and Systems §§ 6.6-6.8 (2005).
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