IJ and Bagel Entrepreneur Blaze Trail to 9th Circuit To Defend Commercial Speech

John Kramer
John Kramer · June 1, 2006

Seattle, WA—Do governments get to pick and choose among speakers and speech, allowing only certain businesses the right to communicate with their customers, or does the First Amendment equally protect all speech?

That’s what the 9th U.S. Circuit Court of Appeals will decide when it hears arguments next Tuesday, June 6, in a case with nationwide implications for the protection of commercial speech and the rights of entrepreneurs. The City of Redmond, Wash., had banned certain portable signs, including those of local entrepreneur and Blazing Bagels owner Dennis Ballen. A federal district judge, Marsha Pechman, sided with Ballen in June 2004 and struck down Redmond’s sign ban as a violation of the U.S. and Washington constitutions, but the City appealed.

Arguments in Ballen v. City of Redmond begin at 9 a.m. before the 9th Circuit on the 4th Floor of the Park Place Building in Seattle. Ballen will be the fourth case heard.

The case began in 2003 when a Redmond Code Compliance Officer ordered Ballen to stop advertising his bagel shop using a portable sign reading “Fresh Bagels – Now Open” and carried by an employee on the sidewalk of a busy street, Redmond Way. Blazing Bagels is tucked away from Redmond Way and relies heavily on this low-cost advertising to let consumers know where the shop is.

Under Redmond’s ordinance, signs identical to Ballen’s but with different messages—such as real estate advertising or political messages—were legal, but not signs advertising bagels or other commercial messages.

“Neither the First Amendment nor the Washington Constitution contain an ‘except for bagels’ or ‘except for speech bureaucrats dislike’ clause,” said Steve Simpson, a senior attorney at the Institute for Justice, which represents Ballen. “Governments may not favor the speech of some, like realtors, over the speech of others, such as small businesses like Ballen’s. That’s exactly what the trial court ruled in declaring Redmond’s portable sign ban unconstitutional, and we expect the 9th Circuit will also vindicate the equal right to free commercial speech.”

“I agree with each and every customer that walks through the door that this case is an absolute waste of the City’s time and money,” said Ballen. “We pose no more danger to drivers than a real-estate sign, or a bus that’s decorated in advertising. We deserve an equal right to simply advertise our business.”

“Commercial speech is a vital part of the everyday lives of Americans and deserves the full and equal protection of the First Amendment,” said Bill Maurer, executive director of the Institute for Justice Washington Chapter in Seattle. “Small businesses in particular rely on low-cost methods of advertising to reach consumers. But instead of encouraging local entrepreneurs, cities across Washington and across the nation stifle them by passing silly regulations that prohibit them from sharing truthful information with customers.”

In December, Redmond passed a new sign ordinance that permits portable commercial signs, including Ballen’s, demonstrating that the City can adopt regulations that more even-handedly address its purported concern about the number of signs in the city—undercutting Redmond’s legal claims. Nonetheless, the City appealed the case hoping to re-enact its original, irrational ordinance if it wins.