Blowing a Hole in the First Amendment

October 2003

Blowing a Hole in the First Amendment

By William R. Maurer

The City of Redmond, Wash., does not like portable signs. Branding them “aesthetically unappealing,” the City has banned certain types of signs even though they truthfully promote legal products. Signs advertising real estate or politicians are not, apparently, “aesthetically unappealing” from the City’s point of view and are allowed, however. This unequal treatment has prompted many Redmond businesses to ask whether the government may ban truthful, non-misleading advertisements about legal goods and services available to the public. IJ has joined with one such business in a lawsuit to declare unequivocally, “No, it may not.”

Blazing Bagels is a Redmond-based small business owned by entrepreneur Dennis Ballen. As with many small businesses, Dennis needed to get the word out about his products, but he did not have the money to advertise on TV or radio. So, on most weekday mornings until this past June, commuters driving past the corner of Northeast 70th Street and Redmond Way Northeast could see a Blazing Bagels employee wearing a sign that said “Fresh Bagels—Now Open” and directing customers to the Blazing Bagels store, which is located off Redmond Way. Based on this advertising, Blazing Bagels developed a good customer base. Once inside the store, new customers became repeat customers after tasting the fresh bagels and other baked goods sold there.

Rather than encourage this small business, however, on June 18, 2003, the City of Redmond served Dennis with a cease and desist letter telling him he could not have an employee on public streets wearing a sign advertising the store. The letter said that Redmond’s City Attorney had determined that the City’s “Prohibited Signs” code applies to portable signs worn or held by individuals, as well as signs that have been placed in or on the ground. Failure to cease and desist could bring up to a year in jail and a $5,000 fine.

Since the City shut down Dennis’ advertising for Blazing Bagels, his business has dropped off considerably. The City’s message to small businesses that wish to use this inexpensive and effective form of advertising seems to be that the City does not care if they are driven out of business.

The City justifies the restriction on such signs as necessary to preserve the aesthetics of Redmond. But the City’s attempt to improve Redmond’s aesthetics is inconsistent and irrational. The ordinance cited by the City allows certain kinds of portable signs—such as real estate signs, political signs and celebration signs—but prohibits all others. The only difference between the signs the City permits and those it does not is the content of the message. Moreover, the ban does not just prohibit commercial speech. In Redmond, if you held up a sign that says “Jesus Saves” or replicated the first page of “Moby Dick,” you’d be a lawbreaker.

Luckily, Dennis is not the type to just be quiet when he is told. Represented by the Institute for Justice Washington Chapter (IJ-WA), Dennis has taken his fight to court to protect his—and our—right to free speech.

On July 22, 2003, IJ-WA filed a lawsuit on Dennis’ behalf challenging the City’s illegal ban on portable signs arguing the City’s actions violate the free speech guarantees of the Washington state and U.S. Constitutions. The Washington state Constitution, in particular, protects all forms of speech by guaranteeing to Washington residents the right to “freely speak, write and publish on all subjects.” It does not say “all subjects, except bagels.”

Efforts like those by the City of Redmond to suppress the free flow of information about commerce interfere with our ability to make informed, reasoned judgments about what we eat, what we wear, where we live or the range of price alternatives. Such efforts demonstrate a disdain for economic activity inconsistent with the interests of free citizens in a global marketplace. Dennis’ challenge to the City’s ban is a fight for all Washingtonians to speak, listen and read freely, as the Framers of the Washington state Constitution intended.

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