How Sweet It Is to Defend Free Speech

June 1, 2005

June 2005


How Sweet It Is to Defend Free Speech

By Jennifer Barnett

Who says you can’t go home again?

On the morning of April 7, Institute for Justice Arizona Chapter (IJ-AZ) Executive Director Tim Keller returned to his high school alma mater to protect Winchell’s Doughnut franchise owner Ed Salib’s free speech rights. The Arizona Court of Appeals selected IJ-AZ’s commercial speech case, Salib v. City of Mesa, as a vehicle for its “Connecting with the Community” program and held oral argument in front of approximately 200 high school students at Scottsdale’s Horizon High School.

IJ-AZ filed suit on Ed’s behalf in January 2003 challenging the City of Mesa’s sign ordinance. The ordinance forbids businesses in the City’s Redevelopment Area from hanging window signs that cover more than 30 percent of the windows. Ed receives professionally produced signs each month from Winchell’s advertising the current specials; these signs typically cover more window area than the ordinance permits.

Mesa’s purported justification for the sign code is to improve aesthetics and increase public safety. As Tim pointed out to the Court, the ordinance does neither of these things: window clutter may be as high as ever since businesses are still free to fill their windows with actual products, and they are also free to cover 100 percent of the window area with blinds or paint as long as they are not displaying any commercial messages.

Tim’s argument began humorously by asking the judges to excuse his rumbling stomach as he demonstrated the arbitrariness of Mesa’s sign code using a mock-up window and miniature signs with pictures of the tasty doughnuts he loves. In a lighthearted moment, while stressing the importance of commercial speech to our free market economy, Tim quipped to the Court that the public deserves to know that Ed’s frozen mocha cappuccinos are cheaper than Starbucks’.

In contrast, the City provided the Court with a stereotypical big-government apologist in the attorney it sent to defend the ordinance. The City’s attorney spoke without passion, plaintively asking the Court not to make the City jump through any more hoops in passing ordinances—such hoops might be too “burdensome”—and we wouldn’t want cities to face any extra burdens when passing ordinances that trample their citizens’ constitutional rights. Without much left to say in her favor, the City’s attorney sat down with more than two minutes left of argument time.

Tim used every last second of his allotted time to press his case, growing more passionate toward the end of the argument.

“Days like these are why I became an IJ attorney,” Tim declared after the argument. “I love standing up for the cause of liberty in the face of governmental tyranny and, of course, the opportunity for a free doughnut or two.”

Jennifer Barnett is an IJ-AZ staff attorney.

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