“For Sale” is Free Speech: Federal Appeals Court Victory for Commercial Speech

John Kramer
John Kramer · June 29, 2007

Arlington, Va.—The full 6th U.S. Circuit Court of Appeals today rejected a Glendale, Ohio, ordinance that threatened citizen Chris Pagan with jail time or a $250 fine for a routine act of free speech: putting a “for sale” sign in the window of his car while it was parked on the street in front of his home. The court declared the city’s sign ban a violation of Chris’s First Amendment rights, overturning an earlier decision of a three-judge panel of the court upholding the ordinance.

“The court today restored sanity to the First Amendment, ruling that the whim of government bureaucrats is not enough to justify censorship,” said Jeff Rowes, an attorney with the Institute for Justice, which represents Pagan. “This decision puts the burden back on government to justify restrictions on free speech—rather than making people like Chris prove they deserve constitutional protection for their rights.”

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.

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.

“Had the city prevailed, commercial speech would have been subject to the unfettered discretion of government bureaucrats,” said Chip Mellor, IJ’s president and general counsel. “The city of Glendale tried to use the ‘commercial speech’ label as an excuse to ban speech that it did not like. Today’s decision reverses what would have been a dangerous step toward stripping commercial speech of constitutional protection.”

The legal confusion about which speech gets full First Amendment protection has real-world implications for citizens nationwide. In Redmond, Wash., for example, the city clamped down on bagel shop owner Dennis Ballen because he hired someone to carry a sign pointing customers to his out-of-the way location. In Mesa, Ariz., donut entrepreneur Edward Salib was forced to take down posters in his shop advertising breakfast treats because of the city’s irrational sign ordinance. Both entrepreneurs had no choice but to take their battle to the courts; Edward lost, but Dennis won a victory before the 9th U.S. Circuit Court of Appeals last year.

Today’s ruling is available online at here (in pdf) at the U.S. Court of Appeals for the Sixth Circuit. For additional background on the case, visit the Glendale, Ohio, case page.