“For Sale” Is Free Speech

By Jeff Rowes

In 2003, Chris Pagan, who lives in Glendale, Ohio, took out a classified ad to sell his car.  He only got a few calls, so he did what people have done since the advent of the automobile:  he put a small “for sale” sign in his car window.  This was a great idea because his phone rang off the hook.

This was also a terrible idea because it made Chris a criminal.  Believe it or not, it is illegal in Glendale to put a “for sale” sign in a car parked anywhere but your driveway.  Chris was facing a $250 fine and even 30 days in jail.

Chris took down his sign after being threatened by the police, but he also filed suit in federal court because he understands what Glendale does not:  he has a First Amendment right to tell people that his car is for sale.

Amazingly, Glendale defended its ban in court by arguing that people who read the words “for sale” will foolishly rush into the street to inspect the car and get run over.  Glendale, in other words, does not trust its citizens to make good choices in response to the speech of others.

Most Americans would be outraged to discover that their government thinks they need to be kept ignorant for their own good, especially when the banned speech is something as harmless as a “for sale” sign.  So it will come as a surprise to most Americans that Chris lost not only in the district court, but also in front of a three-judge panel of the 6th U.S. Circuit Court of Appeals, which covers the 32 million Americans who live in Michigan, Ohio, Kentucky and Tennessee.

Chris lost in part because the U.S. Supreme Court only affords limited First Amendment protection to “commercial” speech, meaning speech related to an economic transaction.  The Supreme Court has never explained, however, why government censors become especially enlightened, and citizens especially gullible, just because a sign reads “for sale” instead of “Go Red Sox” or “Vote Smith.”

The Supreme Court has also never explained why commercial speech is relegated to a second-class status.  Why not censor political speech instead?  After all, as Justice Blackmun observed, our concern with “the free flow of commercial speech may often be far keener than [our] concern for urgent political dialogue.”  If this seems counterintuitive, just compare how often you buy something with how often you vote.

On June 2, 2006, the Institute for Justice took up Chris Pagan’s cause and asked all 14 judges of the 6th Circuit to rehear his case.  The court granted our petition in September and will hear the case in December.

In our brief, we urged the full Court of Appeals to recognize that the burden of making good choices in response to the speech of others is simply not a “problem” the First Amendment allows the government to “solve” with censorship.  For it to mean anything, the First Amendment must mean government can never censor truthful speech about lawful conduct just to prevent people from being able to make choices the government does not like.

So, while the facts of Chris’ case may seem unremarkable, the underlying principle could not be more important.  In defending his right to put a “for sale” sign in his car window, Chris is defending everyone’s right to express and hear important ideas without fear of censorship and criminal prosecution.  His way is the American way, and we hope the full Court of Appeals agrees.

Jeff Rowes is an IJ staff attorney.