Signs of Freedom

Federal Appeals Court Strikes Down
Censorship of Commercial Speech

By Lisa Knepper

When Chris Pagan posted a placard reading “for sale” in the window of his 1970 Mercury Cougar and parked it on the street in front of his house, he did not intend to spark a First Amendment battle.  He just wanted to sell his car.

But Chris, like IJ clients and entrepreneurs nationwide, soon learned the hard way that everyday speech, such as “For Sale,” “Fresh Bagels – Now Open” or any other language that proposes an economic transaction, is a second-class citizen when it comes to constitutional protections for free speech.

As governments too often do, the city of Glendale, Ohio, took that opening in the law and ran with it, threatening Chris with jail time or a $250 fine unless he took down the sign. 

 
   

Glendale claimed it banned the words “for sale” from parked cars because it thought people would walk into traffic and get run over while looking at them.  Never mind that such insulting paternalism is no justification for censorship, or that when Chris, a lawyer, sued to defend his rights, the city could not present one shred of evidence that the ban actually promoted health and safety.

That did not matter because the city had the “commercial speech” label to hide behind.  Contrary to the actual text of the First Amendment, courts have long considered so-called “commercial speech” a category of speech less worthy of constitutional safeguards than political speech or artistic expression. 

That leads to absurd situations where some speech is free (such as car signs that read “Support Our Troops” or “Go Buckeyes”) but other speech (like “for sale”) is subject to confusing regulation.

Incredibly, a federal district court and a three-judge panel of the 6th U.S. Circuit Court of Appeals sided with the city, essentially ruling that the sign was commercial speech, and that ends the debate—and Chris’ rights.

Enter the Institute for Justice.  IJ has long sought to vindicate the free flow of commercial information, scoring recent victories for Redmond, Wash., entrepreneur Dennis Ballen, whose sidewalk sign advertises bagels, and real estate websites fighting absurd licensing requirements in California.

As soon as IJ Staff Attorney Jeff Rowes saw the 6th Circuit’s original ruling, he knew it was ripe for challenge—and that it must be reversed to stop a dangerous step backward for already limited commercial speech rights.  He quickly teamed up with Chris and within two weeks filed a motion asking all 15 judges of the 6th Circuit to re-hear the case.

An en banc hearing is incredibly rare, but thanks to Jeff’s work, the court granted the request.  And finally, on June 29, the sharply divided 6th Circuit, in an 8-7 vote, vindicated Chris’ rights, four years after he first posted his “for sale” sign.

“The court restored sanity to the First Amendment, ruling that the whim of government bureaucrats is not enough to justify censorship,” said Jeff.  “This decision puts the burden back on government to justify restrictions on free speech—rather than making people like Chris prove they deserve constitutional protection for their rights.”

In Jeff’s first oral argument in court and IJ’s first-ever federal en banc hearing, IJ notched an important victory for the First Amendment.

Still, it is disturbing that Chris’ case got this far and that seven federal appellate judges bought the city’s claims.  Clearly, there remains much work to be done.  Fortunately, IJ will continue to seize every opportunity to stop the petty censors and ensure the rights of entrepreneurs and ordinary citizens to speak freely, no matter the topic.

Lisa Knepper is IJ’s director of communications.

 

 

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