Judge Refuses to Dismiss Lawsuit In Free Speech Case

John Kramer
John Kramer · January 24, 2004

Seattle, WA—The Institute for Justice Washington Chapter (IJ-WA) scored an important victory in its fight for free speech on Friday, January 21, 2005, when a Snohomish County Superior Court judge refused to dismiss a lawsuit aimed at protecting the free speech rights of small businesses in Lynnwood, Wash. The ruling came in a case involving the Futon Factory, which has a store in Lynnwood. Last year, the City of Lynnwood began threatening the Futon Factory with fines after the store began using employees to hold advertising signs on a busy street in Lynnwood’s commercial district. Rather than buckle to the City’s pressure, the Futon Factory added the message “The Futon Factory Believes in Free Speech” to its signs. The City then cited the store for violating an ordinance that restricts portable signs for small businesses but permits them for realtors and politicians. The Futon Factory, represented by the Seattle-based Institute for Justice Washington Chapter, then sued the City, claiming such content-based restrictions on commercial speech violate the United States and Washington constitutions.

On Friday, the City of Lynnwood argued to the court that the Futon Factory’s lawsuit should be dismissed because, among other things, the City had recently decided to stop enforcing the ordinances in question. However, Judge Linda Krese of the Snohomish County Superior Court ruled that the City’s cessation of its enforcement was a one-sided promise that did not bind the City to change its behavior.

“The City of Lynnwood claimed that it does not intend to enforce these ordinances, but it did not amend or repeal this content-based ban on portable signs despite the fact that the City Council has met numerous times since the City moved to dismiss our lawsuit,” said William Maurer, the executive director of IJ-WA. “It was clear that the City wanted to preserve as much flexibility as possible to keep its unconstitutional law on the books while trying to deny the Futon Factory its day in court. The Court correctly saw that—absent a repeal of the ordinances or some other binding action—the City’s actions did little to give the Futon Factory any assurance that the store could exercise its free speech rights free from City censorship.”

By refusing to dismiss the case, the judge permits the Futon Factory to continue fighting to protect its free speech rights—and the rights of other small businesses in Lynnwood. The parties are currently engaged in discovery in the case.