Advertising Ban Is Sign of Big Government

John Kramer
John Kramer · June 24, 2004

Seattle, WA—Imagine a world where only politicians and those with political influence may advertise. You don’t need to; you have Lynnwood, Wash.

Under Lynnwood’s scheme, small businesses cannot display portable signs more than eight feet away from their property, but portable signs for the politically powerful residential real estate market and for politicians are permitted pretty much anywhere in the city.

“The only difference between the signs Lynnwood permits and the signs it bans are the words on the signs,” said Bill Maurer, executive director of the Institute for Justice Washington Chapter. The Institute for Justice is defending the Futon Factory, a local business cited for breaking the overly stringent sign law. “In Lynnwood, politicians can advertise themselves, but the City prevents small business owners from advertising their products.”

And apparently, small businesses cannot even tell people about their belief in free speech.

The Futon Factory operates a futon store on 196th Street in Lynnwood. To inform potential customers of the high-quality and attractive furniture at their store, the owners of the Futon Factory—David Bolles, Monica DeRaspe Bolles, and John DeRaspe—hired a sign-holder to stand with a sign on nearby 44th Avenue, which typically has more traffic than 196th Street. The sign holder waved to folks and stood on the street corner on weekends when traffic was heaviest. The sign contained commercial information on both its front and back.

The City of Lynnwood warned the store that its signs did not meet Lynnwood’s complex and exception-laden sign code. The owners of the Futon Factory, however, are not the type of people who let warnings from bureaucrats interfere with their ability to exercise their fundamental constitutional rights. So David, Monica and John sent their sign holder out again—this time with a commercial message on the front and the statement “Futon Factory Believes In Free Speech” on the back.

And that is when the City issued them a citation.

“Small businesses use signs to communicate with their customers and their right to do so is protected by the Washington Constitution,” said Jeanette Petersen, an IJ-WA attorney. “Courts are traditionally wary of regulations that burden inexpensive forms of communication, such as portable signs. Government regulation of speech through the enactment of laws, such as Lynnwood’s sign ordinance, must accordingly comply with constitutional free speech guarantees. Lynnwood’s sign ordinance violates the Washington Constitution because it improperly discriminates against commercial speech based solely on the content of the speech.”

On June 22, 2004, the Institute for Justice Washington Chapter (IJ-WA) filed an appeal of the City’s citation on behalf of the Futon Factory in the Snohomish County Superior Court in Washington. The appeal seeks to prevent the City from enforcing the restrictions on commercial speech and asks the court to declare the City’s ordinance unconstitutional. Earlier this month in federal court, the Institute for Justice Washington Chapter defeated a similar ordinance from Redmond, Wash.

As John DeRaspe said, “We really don’t have the time to challenge this, but if we don’t, who will? We are very tired of our business getting pushed around by the government in various ways. All of us feel strongly that we are over-taxed, over-governed and overwhelmed by the hoops we must jump through to run our business. It is no wonder to us why many businesses are leaving this state.”

The Washington Constitution guarantees, “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” Washington courts, however, have reasoned that the state constitution permits greater regulation of commercial speech than noncommercial speech because of the “State’s interest in protecting the public from those seeking to obtain its money.”

Maurer said, “The goal of this case is to restore the Washington Constitution’s strong and comprehensive free speech guarantee, including full protection for commercial speech. Under our state constitution, commercial speech should receive the same strong protection from the courts as any other form of speech—political, artistic and expressive speech, to name a few.”

Petersen concluded, “The Washington Supreme Court has ignored the plain words of the state provision and the history behind our free speech guarantee. The Court has made commercial speech a second-class form of expression, one that does not receive the intended and full protections of the state constitution. The Institute for Justice Washington Chapter believes it is high time to read the provision in full and give it the meaning the framers intended.”

The Institute for Justice (IJ) has been busy litigating across the nation to protect the rights of small businesses to communicate (or in some cases, not to communicate) with their customers. For example:

Cochran v. Veneman—The Institute for Justice challenged the government-forced funding by dairy farmers of the “Got Milk?” ads. On February 24, 2004, the 3rd U.S. Circuit Court of Appeals struck down the program as unconstitutional. v. California Department of Real Estate—IJ is challenging the State of California’s mandate that companies that advertise or list homes or properties for a flat fee, such as, must become licensed real estate brokers in order to do business in the state.

Salib v. City of Mesa—The Institute for Justice Arizona Chapter is taking on the City of Mesa, Ariz., law that prevents businesses in the downtown redevelopment area from covering more than 30 percent of any windowsill or pane area. The City does not require businesses to have windows, and windows may be covered with blinds and shades or tinted to entirely block views.

At a time when information is more important to the American economy than ever before, laws such as those adopted by Lynnwood and Redmond, Wash.; Mesa, Ariz.; the State of California and even the federal government not only violate free speech rights, but also inflict harm on businesses, consumers and our economy by unnecessarily restricting the free flow of information.