IJ’s Blazing First Amendment Victory

August 1, 2004

August 2004

IJ’s Blazing First Amendment Victory

By William Maurer

All Dennis Ballen wanted to do was let people know that his bagel shop, Blazing Bagels, was open and that fresh bagels were available. But it took an order from a federal judge to allow him to do that.

On June 15, 2004, Dennis and the Institute for Justice Washington Chapter (IJ-WA) won a significant First Amendment victory when Judge Marsha Pechman of the U.S. District Court for the Western District of Washington held that the City of Redmond’s portable sign ordinance was unconstitutional. Under the Redmond ordinance, portable signs advertising small businesses were completely banned, but portable signs advertising real estate and political candidates were permitted. Judge Pechman ruled that Redmond’s ban “creates content-based exceptions for certain commercial speech.” The judge explained, “The different treatment under the ordinance is entirely based on a sign’s content. There is no rational reason for such a distinction; there is no relationship between the content-based distinction and the safety and aesthetic goals.” As a consequence of this finding, the judge held that the “ordinance at issue is unconstitutional.”

For six months, Ballen had an employee stand on the corner of a busy road in Redmond wearing a sign that read “Fresh Bagels – Now Open.” Because of its difficult-to-find location, Blazing Bagels relied heavily on signage to attract customers. But on June 18, 2003, a Code Compliance Officer from Redmond hand-delivered a letter telling 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 and containing certain kinds of commercial information—are prohibited.

Redmond maintained in court that the ban was necessary to promote traffic safety and aesthetics in Redmond. However, Redmond was unable to provide any proof to the court that the signs it banned actually caused any greater problems for traffic safety or aesthetics than the signs it permitted, or that the banned signs were the “greater culprit” in Redmond’s alleged sign problem. Judge Pechman therefore ruled that “contrary to [Redmond’s] assertion that the sign ordinance bans a significant percentage of the total number of signs that would be displayed if not for the ordinance, Defendants have not presented sufficient evidence to support that conclusion.” Consequently, the judge concluded, “Defendants have not met their burden.”

The judge’s ruling makes clear that commercial speech—even speech about such innocuous subjects as bagels—is protected by the First Amendment and that government regulations in this area must actually alleviate the problem the government seeks to address. The victory was therefore an important one not only for Dennis and Blazing Bagels, but also for the many small businesses IJ-WA looks to serve that are harassed by bureaucrats.

And that is why IJ-WA quickly turned to apply this decision in another case. On June 22, 2004—a week after the decision in Dennis’ case—IJ-WA filed an action in Washington’s Snohomish County Superior Court challenging a City of Lynnwood citation issued against the Futon Factory, a family-owned futon business. Lynnwood cited the Futon Factory for displaying portable signs because the City prohibits such signs except within eight feet of the business’s property. However, as in Redmond, real estate and political portable signs are permitted pretty much anywhere in the city. IJ-WA’s challenge on behalf of the Futon Factory asks the court to declare the City’s ordinance unconstitutional.

The Redmond decision marks an important vindication of the rights of small businesses to communicate truthful information to potential customers. Cities nationwide continually restrict constitutionally protected commercial speech, frustrating entrepreneurs starting and promoting businesses.

If municipal governments truly cared for the small businesses that create jobs and pay taxes, it would not be necessary for entrepreneurs like Dennis Ballen or the owners of the Futon Factory to file lawsuits just so they could tell people about bagels and futons. Until municipalities decide to start respecting the free speech rights of small businesses, IJ-WA will be there to fight overreaching bureaucrats every step of the way.William Maurer is executive director of the Institute for Justice Washington Chapter.

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