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 ruled that the City of Redmond’s ban on portable signs containing certain commercial messages, such as those about bagels, is unconstitutional. The Redmond ban permitted portable signs containing information about real estate, celebrations and political issues but banned signs that contained information about small businesses. The judge permanently cleared 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 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.”
Last January, a different federal judge had enjoined the enforcement of the Redmond ban by ruling that Redmond’s ordinance was likely unconstitutional. Today’s ruling by Judge Pechman ends the case with a solid legal victory for Ballen, the Institute for Justice Washington Chapter, which represented Ballen for free, and the First Amendment.
Bagel entrepreneur Dennis Ballen applauded the ruling as a victory for small businesses in Redmond. “The ability to advertise is critical to the success of my business and its future growth,” he said. “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.”
“This was an important victory not only for Mr. Ballen but also for the many, many small business people the Institute for Justice Washington Chapter looks to serve in the future who are harassed by bureaucrats,” said William Maurer, executive director of the IJ-WA. “Cities nationwide constantly try to stop people from starting or promoting entrepreneurial businesses with similar restrictions on commercial speech. This decision is a reminder that small business owners have free speech rights, too. And that right is entwined with their property rights and right to economic liberty as well.”
IJ-WA Staff Attorney Jeanette Petersen said, “Our state constitution says that ‘every person may freely speak, write and publish on all subjects, being responsible for the abuse of that right.’ And ‘all subjects’ means ‘all subjects’—not ‘all subjects except bagels.’ This ruling is a total vindication of this fundamental principle.”
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 Redmond’s preference for certain kinds of commercial speech over others “cannot be said to materially and directly advance the City’s interests.” The judge also ruled “contrary to [Redmond’s] assertion that the sign ordinance bans a significant percentage of the total number of signs that would be displayed if not for the ordinance, Defendants have not presented sufficient evidence to support that conclusion.” Consequently, “Defendants have not met their burden,” the judge concluded.
Dennis Ballen filed his lawsuit on July 22, 2003, with the help of the IJ-WA, charging that Redmond’s ban on portable signs violates his right to free speech and his right to earn an honest living in his chosen profession. By vindicating Ballen’s right to communicate truthful information to potential customers, IJ-WA is one step closer toward breaking 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.