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Bagel Entrepreneur & IJ Win Injunction Against the City of Redmond In First Amendment Case

Seattle, WA—Blazing Bagels owner Dennis Ballen and the Institute for Justice Washington Chapter (IJ-WA) won an important First Amendment victory today when a federal court enjoined as likely unconstitutional the City of Redmond’s ban on portable signs containing certain commercial messages, such as those about bagels, pending a trial on the merits.  The judge issued a preliminary injunction clearing the way for Blazing Bagels to communicate truthful information to potential customers regarding the fact that the shop is open and bagels are for sale.  The Honorable Thomas S. Zilly, serving on the U.S. District Court for the Western District of Washington, ruled that the City’s ban ?is more extensive than necessary and not narrowly tailored to the City’s interests because the City could have possibly implemented reasonable content-neutral time, place and manner regulations, such as those the City has implemented for real estate signs, for all portable signs.?  As a consequence of this finding, the judge held that a ?preliminary injunction would serve the public interest by protecting free speech rights.?

“Redmond’s policy of banning portable signs containing commercial speech is unconstitutional and we’re glad the court found the challenge to Redmond’s ordinance is likely to succeed on the merits,” said William Maurer, executive director of the Institute for Justice Washington Chapter, which defended Ballen free of charge.  “Cities nationwide constantly try to stop people from starting or promoting entrepreneurial businesses.  This decision should remind them that their regulations must follow the Constitution.”

For 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.  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.

The judge found that the City’s ordinance “distinguishes between different types of commercial portable signs (e.g., allowing real estate signs while banning other commercial signs including the disputed bagel signs) and between commercial and non-commercial portable signs (e.g., allowing political signs while banning bagel signs).  There is no evidence in the record that the banned signs are less aesthetically appealing or more harmful to traffic and pedestrian safety than the permitted signs.”  Because the City “must do more than argue the importance of deferring to the legislative judgment of the City Council to succeed,” the judge found that Ballen and Blazing Bagels “have shown that they are irreparably harmed by the restriction on their speech, and the balance of hardships tips sharply in Plaintiffs’ favor.”

Dennis Ballen filed his lawsuit on July 22, 2003, with the help of the IJ-WA, charging that the City’s ban on portable signs violates his right to free speech and his right to earn an honest living in his chosen profession.  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.

Founded in 1991, the Washington, D.C.-based Institute for Justice has a long record of success in representing entrepreneurial Davids against government Goliaths.

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