Small Business Fights for Right to Free Speech

John Kramer
John Kramer · January 8, 2003

Phoenix, AZ—Winchell’s Donut House franchisee Edward Salib today filed a lawsuit seeking to vindicate his free speech rights, asking the court to declare as unconstitutional the City of Mesa sign ordinance that prevents Salib from advertising doughnuts and coffee in his shop windows. The case was filed in Maricopa County Superior Court by Court Rich, acting as pro bono counsel with the Institute for Justice Arizona Chapter as part of its continuing litigation strategy to protect Arizonans’ free speech rights.

In August 2002, a Mesa “code enforcement officer” forced Salib to remove every one of the signs advertising the monthly specials, such as frozen mocha cappuccinos and a three-for-one doughnut special, from his shop’s windows because the ordinance prevents businesses in the downtown redevelopment area from covering more than 30 percent of any windowsill or pane area.

The City of Mesa is so serious about enforcing this ordinance that, according to press reports, the City keeps an 80-page file on Salib’s doughnut shop that includes 24 digital pictures to monitor any changes in the window signs.

“It is unbelievable that the government would spend so much time spying on my business,” declared Ed Salib. “The bureaucrats working for Mesa have no idea what it takes to run a business.”

“Ed Salib wants nothing more than to communicate a truthful message to his customers concerning the pricing and availability of the products for sale in his shop,” declared Court Rich, who is also an attorney with the Nearhood Law Offices. “The prohibited signs are a valuable form of speech, and the Arizona Constitution protects Mr. Salib’s right to communicate with his customers through those signs.”

Under Salib’s franchise agreement, Winchell’s provides his store with high-quality window signs, nearly identical in shape and size, to promote the monthly specials and baked goods sold inside. The signs hanging in Salib’s window advertising the monthly specials when the sign ordinance was enacted were grandfathered, but once he replaced those signs with the next month’s specials, he lost his grandfathered status.

The type of business signs Salib wishes to display is constitutionally protected speech. To regulate such speech, governments must demonstrate to the courts that the regulation advances an important purpose and is carefully written to be only as restrictive as absolutely necessary. But the City of Mesa recently admitted at a public hearing that the 30 percent rule was essentially chosen at random.

Perhaps recognizing that it could not meet that burden, the City recently announced it will revisit the sign ordinance and has held at least one public hearing to consider possible amendments.

“One of the Arizona Chapter’s primary goals is to reinvigorate the Arizona Constitution’s protection of the free flow of commercial information that is essential to our free enterprise system,” explained Tim Keller, a staff attorney at the Institute for Justice Arizona Chapter. “In this litigation we seek to firmly establish the broadest possible protection for speech of all kinds for all Arizonans.”

Salib fears that the City’s actions are about more than just signs, and that the City may actually have other plans for his land. His doughnut shop is located on the southwest corner of Country Club Drive and Main Street, a corner that Mesa has declared a “gateway” into the downtown. Salib’s neighbor across the street, Bailey’s Brake Service, is currently in the Arizona Court of Appeals fighting Mesa’s attempt to take his land by eminent domain so that the city can give the land to a privately owned Ace Hardware store. The Institute for Justice Arizona Chapter also represents Randy Bailey, owner of the brake shop, in his attempt to halt Mesa’s abuse of eminent domain.