Bagel Entrepreneur Blazes to Victory

December 1, 2006

December 2006

Bagel Entrepreneur Blazes to Victory

Washington Chapter Earns Unanimous Victory in 9th Circuit

By  William R. Maurer

The Institute for Justice scored an important free speech victory on September 15 when the 9th U.S. Circuit Court of Appeals struck down a ban by the City of Redmond, Wash., on certain portable signs.  The case represents one of the first times a court has held that the government cannot discriminate against one sort of commercial message while freely permitting another sort of commercial message.

The case began when Dennis Ballen had an employee stand on the corner of a busy road wearing a sign that read “Fresh Bagels – Now Open” and directing them to his nearby bagel store, Blazing Bagels.  Because of its difficult-to-find location, Blazing Bagels relied heavily on signage to attract customers.

In 2003, Redmond told Ballen that such advertising “needs to cease and desist immediately.”  The letter told Ballen that in Redmond portable signs—including those held or worn by individuals, containing certain kinds of commercial information—are prohibited.

Redmond maintained in court that the ban was necessary to promote traffic safety and aesthetics.  However, under the ordinance, although portable signs advertising small businesses were completely banned, portable signs advertising real estate were permitted.  That exception fatally undermined the City’s supposed justifications for restricting Ballen’s speech.  The 9th Circuit stated, “The City has protected outdoor signage displayed by the powerful real estate industry from an Ordinance that unfairly restricts the First Amendment rights of, among others, a lone bagel shop owner.”  This one-sided ban was utterly unjustified, according to the court, because “ubiquitous real estate signs, which can turn an inviting sidewalk into an obstacle course challenging even the most dexterous hurdler, are an even greater threat to vehicular and pedestrian safety and community aesthetics than the presence of a single employee holding an innocuous sign that reads: ‘Fresh Bagels – Now Open.’”

The decision should halt attempts by state and local governments located in the 9th Circuit, which includes a large portion of the western United States, to force small entrepreneurs to bear the entire burden of government regulation of speech.  It represents an important victory in IJ’s long-term battle to have the courts recognize that speech about commercial activities is as constitutionally protected as speech on other topics.  And it demonstrates that small entrepreneurs without the political influence of larger industries have a right to communicate with their customers.

The case also reflects IJ’s growth into a national law firm.  Because I was scheduled to argue a separate free speech case in the Washington Supreme Court the same week as oral argument in this case, IJ Senior Attorney Steve Simpson came from headquarters and did a terrific job arguing before the 9th Circuit.  IJ’s ability to draw on resources from across the nation allowed us to cover both arguments in both courts without any delays that would have perpetuated the harm to our clients’ free speech rights.

So, if you are ever in Redmond, celebrate our free speech victory by stopping by to try one of Dennis’ bagels.  You should have no trouble finding the store—just follow the sign.

William R. Maurer is executive director of the Institute for Justice Washington Chapter.

Also in this issue

Ending 2006 Strong

IJ Takes on Another Speech-Squelching Campaign Finance Law

Designing Cartels

Recognizing Excellence

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