Free Speech Prevails in Lynnwood

J. Justin Wilson
J. Justin Wilson · August 17, 2007

Seattle, WA—After a three-year fight to vindicate its right to free speech, the Futon Factory has finally won the right to advertise in Lynnwood, Wash, without fear of government fines. The family-owned business officially ended its lawsuit challenging the city’s ban on certain portable signs after Lynnwood acknowledged that the ban violated the First Amendment rights of small businesses like the Futon Factory.

The Snohomish County Superior Court formally ended the threat to Futon Factory’s First Amendment rights by accepting the city’s agreement to halt its sign ban in an order filed Tuesday, August 14, and made public today.John de Raspe, who co-owns Futon Factory with his sister Monica and her husband David Bolles, hailed the outcome: “Futon Factory is a small family-owned business and affordable advertising is important to us. This victory affirms our right to tell the public about our products and makes clear that small businesses have the same free speech rights as anyone else.”

Futon Factory’s ordeal began in 2003. To inform potential customers about their Lynnwood store, John, Monica and David hired a sign-holder to stand with a sign on a nearby street in Lynnwood’s commercial district.

The idea worked and business was great, but then trouble began. The city threatened Futon Factory with fines for violating regulations that ban off-premises, portable signs for small businesses but permit them for other purposes, such as the sale of real estate or household goods. Rather than buckle to the city’s pressure, Futon Factory added the message “Futon Factory Believes in Free Speech” to its sign. Shortly thereafter, the city cited the store for violating the sign ban.

Following an administrative appeal of the citation, Futon Factory, represented by the Institute for Justice Washington Chapter (IJ-WA), filed a federal civil rights action against the city. It argued, among other things, that the city’s sign ban impermissibly discriminates based on the content of speech and therefore violates the First Amendment.

“Government doesn’t get to choose who gets to speak and what they get to say,” said Michael Bindas, an IJ-WA staff attorney. “Futon Factory has a right to convey truthful information about its store—and now that right has been vindicated.”

Futon Factory’s challenge was helped by another IJ-WA case, Ballen v. City of Redmond. In September 2006, the 9th U.S. Circuit Court of Appeals struck down a similar portable sign ban in Redmond, Wash., that threatened bagel shop owner Dennis Ballen.

In light of the 9th Circuit’s ruling, Lynnwood’s sign ban simply could not stand. Accordingly, the city entered a “stipulated consent judgment” acknowledging the unconstitutionality of its ban on off-premises, portable signs for businesses such as Futon Factory.

That judgment, which the Snohomish County Superior Court entered Tuesday, explains: “Lynnwood allows portable, off-premises signs that advertise the sale of real estate and household goods, while prohibiting those that advertise other goods and services. Ballen holds that such a ‘discriminatory, content-based prohibition’ is ‘more extensive than is necessary to serve’ the City’s interests.”

In this light, the judgment concludes that Lynnwood’s ban “impermissibly infringes [Futon Factory’s] commercial speech rights in violation of the First Amendment.” The judgment also stops the city from enforcing the ban, thereby freeing Futon Factory and other small business to advertise as they see fit.

“The city of Lynwood did the right thing by vindicating the commercial free speech rights of small businesses,” concluded Bindas. “Now, thanks to Dennis Ballen and the Futon Factory, small businesses across Washington have the same right to advertise that bigger players have.”