Federal Appeals Court to Decide: Is “For Sale” Free Speech?
Arlington, Va.—Jail time or a $250 fine for a routine act of free speech? That is what the City of Glendale, Ohio, threatened citizen Chris Pagan with for the simple act of putting a “for sale” sign in the window of his car while it was parked on the street in front of his home.
Tomorrow, Wednesday, December 6, the full 6th U.S. Circuit Court of Appeals will hear arguments to decide whether cities like Glendale can ban ordinary speech for the flimsiest of reasons—or whether the First Amendment protects speech like Chris Pagan’s. The case is the latest in a nationwide legal battle over what constitutes so-called “commercial” speech and whether such speech deserves the full and equal protection of the First Amendment.
The hearing will take place at the Potter Stewart U.S. Courthouse, 100 East Fifth Street, Cincinnati, Ohio. The court will convene at 2 p.m. and Pagan v. Fruchey is the third case on the docket. Chris Pagan and IJ attorney Jeff Rowes will be available before and after the argument for interviews.
Under current law, not all speech is equally protected by the First Amendment. Instead, certain categories, like political speech and artistic expression, receive greater protection than speech that proposes an economic transaction. That leads to absurd situations where, as in Glendale, some speech is free (a “Support Our Troops” or “Go Buckeyes” car sign would be perfectly legal) but other speech (a “for sale” sign) is not—and the government decides which is permitted.
“Giving government bureaucrats the power to decide what speech is acceptable turns the First Amendment on its head,” said Jeff Rowes, an attorney with the Institute for Justice, which represents Pagan. “The City of Glendale is hiding behind the ‘commercial speech’ label to ban speech that it happens to dislike.”
Glendale thinks, like Jack Nicholson in A Few Good Men, that its citizens “can’t handle the truth”: The City believes, without any evidence, that people looking at a “for sale” sign on a parked car will walk into traffic and get run over. Ordinarily, paternalism is not a justification for banning speech, but a federal District Court and a three-judge panel of the 6th Circuit upheld Glendale’s ban because they consider it to be commercial speech. Those courts considered it “self-evident” that Glendale has the authority to censor certain words because Glendale voiced vague concerns about “traffic safety.”
The legal confusion about which speech gets full First Amendment protection has real-world implications for citizens nationwide, as nosy bureaucrats across the country have a license to censor ordinary speech for all sorts of reasons, and often for reasons that have nothing to do with commerce or consumer protection.
In Redmond, Wash., for example, the City clamped down on bagel shop owner Dennis Ballen because he hired someone to carry a “distracting” sign pointing customers to his out-of-the way location. The sign ban, unsurprisingly, made special exceptions for politicians and influential industries like real estate. Like Chris is doing now, Dennis fought for years in the federal courts before the 9th U.S. Circuit Court of Appeals struck down Redmond’s ordinance as unconstitutional in September.
But Mesa, Ariz., donut entrepreneur Edward Salib was not so lucky. He took his fight to the state courts and lost when the City told him to take down posters in his shop window advertising breakfast treats. The City said the signs obscured the ability of the police to look in, but this was senseless because Edward could legally have replaced his window with a wall. Nevertheless, the courts sided with the City.
The Institute for Justice argues that all speech—including so-called commercial speech—is essential to a free society. The U.S. Supreme Court itself has recognized that “the free flow of commercial information is indispensable.” But the Court’s rulings have carved out one exception after another under the “commercial speech doctrine,” thus undermining a vital right.
“Governments now have the power to do just what the First Amendment was meant to forbid: regulate speech on the basis of its content,” said Chip Mellor, president and general counsel of the Institute for Justice. “It should be no surprise that this power leads to rampant abuse and petty censorship.”
On June 2, the Institute for Justice took up Chris Pagan’s cause and asked all 14 judges of the 6th U.S. Circuit Court of Appeals to reconsider the decision of the three-judge panel. On September 6, the entire 6th Circuit agreed to rehear the case and withdrew the earlier appellate decision.