Arlington, Va.—Blazing Bagels owner Dennis Ballen and the Institute for Justice Washington Chapter (IJ-WA) won an important First Amendment victory today when the 9th U.S. Circuit Court of Appeals affirmed that the City of Redmond’s ban on portable signs containing certain commercial messages—in this case those about bagels—is unconstitutional. The Honorable Richard C. Tallman, writing for a three-judge panel, held that Redmond’s ban “impermissibly discriminates against the commercial speech rights of businesses within the City in a content-based manner more extensive than necessary to serve the Redmond’s legitimate governmental interests.”
“This is a great day for free speech,” said Steve Simpson, a senior attorney at the Institute for Justice who argued the case before the 9th Circuit. “The court recognized not only the importance of free speech to small businesses, but also that cities may not favor the speech of well-connected interests over entrepreneurs like Dennis Ballen.”
Although the City’s sign ban prevented small businesses like Blazing Bagels from advertising, it allowed real estate brokers to advertise homes for sale. To that, the 9th Circuit stated, “The City has protected outdoor signage displayed by the powerful real estate industry from an Ordinance that unfairly restricts the First Amendment rights of, among others, a lone bagel shop owner.” This one-sided ban was utterly unjustified, according to the Court, because “ubiquitous real estate signs, which can turn an inviting sidewalk into an obstacle course challenging even the most dextrous hurdler, are an even greater threat to vehicular and pedestrian safety and community aesthetics than the presence of a single employee holding an innocuous sign that reads: ‘Fresh Bagels – Now Open.’”
William Maurer, executive director of the Institute for Justice Washington Chapter, which represented Ballen, added, “The Court saw through the City’s absurd claim that real estate signs are somehow more important than signs advertising bagels. This decision will remind cities nationwide to spend more time following the Constitution, and less time harassing entrepreneurs.”
Bagel entrepreneur Dennis Ballen applauded the ruling as a victory for small businesses in Redmond. Ballen said, “I’m elated not only for me, but for all small businesses in Redmond. Let’s hope the City comes to its senses and respects the rights of small businesses to speak to their consumers. The ability to advertise is critical to the success of my business and its future growth. With this ruling my business now enjoys equal rights to free speech—without fear of government fines or punishment—just like apartment complexes and homes that are advertised for sale in Redmond.”
Institute for Justice President Chip Mellor added, “Consumers and entrepreneurs are the big winners with this decision, regardless of the kind of business involved. Now even if you are a small business without political influence, the Court has said you still have the right to speak to your consumers.”
The case arose in June 2003, after the City of Redmond told Ballen he was violating the sign ban by hiring an employee to stand on a busy street corner holding a sign that read, “Fresh Bagels – Now Open.” The Institute for Justice filed suit on Ballen’s behalf on July 22, 2003, arguing that the City’s sign ban violated his free speech under the U.S. and Washington Constitutions. On June 15, 2004, the Honorable Marsha J. Pechman, of the U.S. District Court for the Western District of Washington, ruled that the City of Redmond’s ban “creates content-based exceptions for certain commercial speech that has no material relationship to the safety and aesthetic goals.” The judge explained, “The different treatment under the ordinance is entirely based on a sign’s content. There is no rational reason for such a distinction; there is no relationship between the content-based distinction and the safety and aesthetic goals. Rather than a reasonable fit, here there is an irrational fit.”
As a consequence of this finding, the judge held that the “ordinance at issue is unconstitutional.”
The City of Redmond appealed Judge Pechman’s decision to the 9th Circuit, resulting in today’s decision affirming her ruling.
Founded in 1991, the Washington, D.C.-based Institute for Justice has a long record of success in representing entrepreneurial Davids against government Goliaths.