IJ-WA Builds Victory on Victory

October 1, 2007

By Michael Bindas

They say that from little bagels, mighty futons grow.  Okay, maybe they don’t say that, but they should.  In the Evergreen State, where acorns and oaks are scarce, IJ Washington Chapter’s (IJ-WA) year-old Blazing Bagels victory (in which we struck down a city’s ban on portable signs for all but politicians and realtors) has borne a mighty free speech victory for the Futon Factory, a family-owned futon store in Lynnwood, Wash.

IJ-WA client and Futon Factory co-owner John DeRaspe shows his support for free speech with a sign that the Futon Factory is now free to display in Lynnwood, Wash.

On August 14, the Futon Factory won its challenge to a Lynnwood ordinance that banned the use of off-premises, portable signs to advertise small businesses.  In a stipulated judgment holding the ban unconstitutional, the Snohomish County Superior Court relied extensively on precedent established in Ballen v. City of Redmond, the 2006 case in which IJ-WA and Blazing Bagels owner Dennis Ballen defeated a similar ban in Redmond, Wash.

The Futon Factory win is an important victory for Washington’s small business community.  It is also a great example of IJ’s ability to build on its successes to advance the cause of liberty.

Futon Factory’s ordeal began in 2003.  To inform potential customers about the store, owners John DeRaspe, his sister, Monica, and her husband, David Bolles, hired a sign-holder to stand with a portable sign on a nearby street in Lynnwood’s commercial district.

The idea worked and business was great, but that is when trouble began.  The city started threatening Futon Factory with fines for violating regulations that ban off-premises, portable signs for small businesses, but permit them for other purposes, such as the sale of real estate.

Rather than buckled under the city’s pressure, the store added the message “Futon Factory Believes in Free Speech” to its sign.  Shortly thereafter, the city cited the store for violating the sign ban.

Futon Factory would not back down.  John, Monica and David know how important advertising is to the success of small businesses like theirs, and they are committed to the principle that small businesses should have the same free speech rights as anyone else.  So rather than give in, they enlisted the IJ-WA to take up their fight.

In July 2004, IJ-WA and the Futon Factory filed a civil rights action challenging Lynnwood’s sign ban.  The argument was simple:  the First Amendment prohibits government from discriminating based on the content of speech; government doesn’t get to pick who gets to speak and what they get to say.

During the course of the lawsuit, Futon Factory got some welcome news.  In September 2006, the 9th U.S. Circuit Court of Appeals ruled for Blazing Bagels in its challenge to Redmond’s sign ban.  The 9th Circuit held that government cannot ban portable signs for small businesses while allowing them for bigger players, such as the real estate industry.

Faced with the 9th Circuit’s holding, Lynnwood realized its regulations could not stand.  The city therefore agreed to a judgment acknowledging the sign ban’s unconstitutionality.  That judgment, which the Snohomish County Superior Court approved in August, makes clear the role that one IJ-WA victory played in securing another.  It strikes down Lynnwood’s ban specifically because “Ballen holds that such a ‘discriminatory, content-based prohibition’ is ‘more extensive than is necessary to serve’ the City’s interests.”

Just as Futon Factory’s win builds upon precedent established in Ballen, IJ-WA will build upon it until free speech rights are secured for all Washingtonians.  We are confident that from these early successes, even mightier things will grow.

Michael Bindas is an IJ Washington Chapter staff attorney.

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