Seattle, WA—All entrepreneur Dennis Ballen wants to do is earn an honest living by selling a legal product—bagels. But the City of Redmond, Wash., where he works, punched a hole in his dreams by enforcing its sign code, which prohibits portable signs except those that advertise real estate, politics or a celebration and which effectively left Ballen unable to advertise his store. The only difference between the signs the City permits and those it prohibits is the content of the message.
That’s why on July 22, 2003, the Institute for Justice Washington Chapter (IJ-WA) filed a lawsuit in King County Superior Court in Seattle against the City of Redmond seeking to vindicate this entrepreneur’s First Amendment rights. In the process, IJ-WA hopes to break down the artificial distinction between commercial speech and other forms of speech that generally get greater legal protection.
“Commercial speech is often much more important to Americans in their everyday lives than political speech,” said William R. Maurer, executive director of the IJ-WA. “Commercial speech informs the public about the homes they live in, their businesses, the cars they drive, the clothes they wear and the food they eat. The government shouldn’t be allowed to censor the free flow of information in the marketplace or in the marketplace of ideas.”
For the past six months, Ballen had an employee stand on the corner of Northeast 70th Street and Redmond Way Northeast in Redmond wearing a sign that read “Fresh Bagels – Now Open.” Ballen’s employee promoted Blazing Bagels, Ballen’s bagel store that is tucked away off of Redmond Way and relied heavily on signage to attract customers. Ballen’s sign holder did not harass anyone or interfere with traffic, did not interfere with pedestrians, kept to the side of the road and did not block the line of sight for traffic.
But on June 18, 2003, a Code Compliance Officer from the City of Redmond hand-delivered a letter telling Ballen that such advertising for Blazing Bagels “needs to cease and desist immediately.” The letter told Ballen that, in Redmond, portable signs—including those held or worn by individuals, containing certain kinds of commercial information—are prohibited.
Ballen’s business developed a good customer base, most of whom were drawn to Blazing Bagels by the sign. But since the City has banned such signs, Blazing Bagels’ business has dropped significantly and the sign holder has been forced to find another job.
IJ-WA Staff Attorney Jeanette Petersen, said, “With Washington in a severe recession, and with unemployment rising, one would think the City of Redmond would applaud entrepreneurs who try to bring customers to Redmond and contribute to the economy. Instead, the City of Redmond is stifling free enterprise by telling Ballen that what he is doing—merely exercising his free speech rights and trying to earn an honest living—is illegal.”
The lawsuit seeks to have the court declare unconstitutional and unlawful the City ordinance. The lawsuit marks the second lawsuit filed by the new Seattle-based Institute for Justice Washington Chapter. The first, which is still in litigation, involves the IJ-WA’s challenge to the City of Seattle’s construction waste hauling monopoly, which the City granted to two out-of-state companies and barred all others from providing that service. Each of these lawsuits represents the Institute for Justice’s vision of allowing individuals—rather than the government—to make decisions that they are best able to make for themselves. These include vindicating individuals’ right to free speech, private property, economic liberty and to direct their children’s education.
The U.S. Supreme Court is wary of regulations that burden inexpensive forms of communication, finding that they are ?essential to the poorly financed causes of little people,? and government regulation of speech through the enactment of laws, such as Redmond’s sign ordinance, must comply with constitutional free speech guarantees. Redmond’s sign ordinance violates the Washington and U.S. constitutions in two ways; it is an invalid ban on commercial speech and it improperly discriminates against certain forms of speech based solely on the content of the speech.
The Washington State Constitution guarantees, “Every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.” The First Amendment to the U.S. Constitution provides in part, “Congress shall make no law . . . abridging the freedom of speech . . . .” Despite the strong language of the state constitution and its departure from the text of the First Amendment, the Washington Supreme Court has suggested that commercial speech enjoys no greater protection under the Washington Constitution than the federal Constitution. Washington courts 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.”
One goal of the Institute for Justice Washington Chapter in this case will be to remove this patronizing and textually unsupported distinction from Washington law.
Although protected, commercial speech does not enjoy the full protection of the First Amendment and is subject to greater restrictions than other forms of speech, such as political and ideological speech. In general, commercial speech is defined as communication that proposes a commercial transaction or that is related to the economic interests of the speaker and his audience.
Unfortunately, laws that unconstitutionally restrict the flow of such information are flourishing, not only in Washington, but also across the nation. In Mesa, Ariz., the Institute for Justice Arizona Chapter is litigating on behalf of a Winchell’s doughnut franchise against the City of Mesa, which ordered the doughnut shop to remove its signs because they violated a City code. A City official justified the restriction by telling the shop owners that their signs were “tacky.” In California, the Institute for Justice is defending ForSaleByOwner.com against the California Department of Real Estate. The State seeks to require the website to secure a real estate brokers license despite the fact that ForSaleByOwner.com is not a real estate broker but rather merely provides an advertising platform to homeowners for a flat fee, empowering individuals to sell and purchase homes on their own.
Blazing Bagels wants nothing more than to communicate truthful information to potential customers regarding the fact that the shop is open and bagels are for sale. The Institute for Justice Washington Chapter seeks to reinvigorate the Washington State Constitution’s protection of the free flow of information that is essential to our free enterprise system. This case presents an opportunity to clearly establish the most robust protection for commercial speech under the Washington Constitution, while reinvigorating First Amendment commercial speech jurisprudence as well.