Sacramento Sign Police vs. the First Amendment

J. Justin Wilson
J. Justin Wilson · August 12, 2013

Arlington, Va.—The city of Sacramento, Calif. is threatening the owners of a small, independent gym with fines of up to $1,000 a day simply for using a sandwich board to advertise their business. But today, Carl and Elizabeth Fears are fighting back by filing a major federal lawsuit to protect their free-speech right to advertise.

Sacramento bans businesses from using sandwich boards, banners and other portable signs to communicate with their customers. Advertising is essential to the success of a small business and no one knows this better than Carl and Elizabeth Fears, owners of Got Muscle Health Club.

For the last four years, the Fears have relied on a sandwich board (also known as an A-frame) and other signs outside their gym to bring in clients. From the road, the gym just looks like a generic office building, so the signs are necessary to tell people about Got Muscle’s existence. The Fears’ A-frame sign is particularly effective; when they put it out, people often walked into Got Muscle and commented that they had not known the gym was there. But under Sacramento’s sign code, their sandwich board is illegal.

The city is threatening the Fears with fines so severe, it would destroy their business. Although Got Muscle cannot survive without advertising, it had no choice but to remove its A-frame. The city’s arbitrary restriction does not even apply to all messages. For instance, the Fears could legally display the same sign, in the same location, if it instead advertised real estate, a nonprofit group’s event, or a political candidate.

Sacramento’s sign code severely restricts signs in the name of “traffic safety” or “aesthetics,” without any proof that the signs negatively affect either.

“Businesses need to effectively advertise to survive,” said Erica Smith, an attorney with the Institute for Justice, which is representing the Fears. “The First Amendment protects the right of entrepreneurs like the Fears to use signs to communicate with the public.”

The code’s arbitrary terms are worsened by its arbitrary enforcement. The city ignores hundreds of illegal signs within just a few blocks of Got Muscle and businesses can never know if they will be targeted. In May, City Code Enforcement Manager Ron O’Connor told the media that, “If we stopped at every A-frame sign, we wouldn’t get 10 blocks from our office ever. We have other issues. We prioritize everything by health and safety issues, and A-frame signs are pretty low on the list.” The city apparently only enforced the sign code against Got Muscle because someone complained to the city about the gym’s sign for an unknown reason. Although signs are a “low priority” for the city, they are the lifeblood of small businesses, including Got Muscle. By banning the Fears’ signs, the city is jeopardizing their business. “We don’t want the city to start enforcing this terrible sign ban on all businesses, but rather allow every business—large or small—to advertise using sandwich boards, banners and other portable signs,” said Elizabeth. “We are going to fight this for our rights, for our business and for businesses throughout the nation,” said Carl. “We know how to best run our business, not the government.” “Under the First Amendment, the government cannot pick and choose what messages it likes best,” said William Maurer, senior attorney with the Institute. “But because the city has decided that some messages are more equal than others, the Fears must turn to the judiciary to protect their free-speech rights and force the city to treat all speech the same.”

That’s why Carl and Elizabeth have joined the Institute for Justice in filing a free-speech lawsuit against the city in federal court on Tuesday, August 13, 2013. The Institute for Justice is also asking for a preliminary injunction to protect the Fears’ sign while the case is pending.

For more on today’s lawsuit, visit Founded in 1991, the Virginia-based Institute for Justice is the national law firm for liberty.