Arizona Free Speech - Background

Litigation Backgrounder

Vindicating Free Speech:
Doughnut Entrepreneur Punches Holes In City of Mesa Sign Ordinance That Chills Speech

The City of Mesa, Ariz., has it in for the small businesses located at the corner of Country Club Drive and Main Street.  First, the City went after Bailey’s Brake Service so it could give the land to a politically connected developer to build a privately owned Ace hardware store.  Now, the City is targeting the brake shop’s neighbor, a Winchell’s doughnut shop, which sits on land designated by Mesa as part of its desired “gateway” into its downtown.  The City has amassed an 80-page file that includes 24 digital pictures of the doughnut shop.  The City has also repeatedly sent one of its 27 “code enforcers” to visit the store—all just to ensure that the shop doesn’t hang professionally produced signs advertising doughnuts and coffee in its windows. [1]

            Entrepreneurs Edward and Nouha Salib operate the Winchell’s franchise, and they believe the City has other plans for their corner.  Late in the summer of 2002, Mesa city officials demanded that the Winchell’s franchise remove from its windows every sign advertising the goods for sale inside.  Mesa’s justification is a sign ordinance applicable only to businesses located in the City’s redevelopment area.  The strict application of that ordinance to the Winchell’s leaves every one of its windows bare, preventing the owners from effectively communicating to potential customers driving or walking by the shop.

            The trouble began in 1999 when Mesa expanded the one-mile “town square” redevelopment area to include a much broader area than just downtown.  The redevelopment designation subjects all businesses in the area to special regulations such as the City’s sign code forbidding businesses from hanging window signs that cover more than 30 percent of any windowsill or casement area.  The Salibs enjoyed a grandfathered variance from this requirement for all signs posted in the shop’s windows prior to the effective date of the ordinance.

Of course, for a business such as Winchell’s, a grandfather clause that applies only to the signs up at the time of passage means very little.  This is because Winchell’s corporate office sends the Salibs a new sign each month advertising the latest specials.  From the time the ordinance was enacted to July 2002 the doughnut shop has, each month, taken down the old signs and replaced them with the new signs.  For example, a sign advertising two doughnuts and a cup of coffee for $2.49 might be replaced with a sign advertising three doughnuts and a cup of coffee for $2.99.  The signs are always similar in size and professionally produced, generally with full-color pictures.

On Tuesday, July 30, 2002, a Mesa code compliance officer visited the Winchell’s and issued the Salibs a “notice of sign violation.”  The Salibs were in violation of the ordinance because they had taken down previously grandfathered signs and replaced them with the new signs, even though they were of the same type and size.  The July 30 notice stated:  “You can only have 30% window coverage.”  Nouha Salib tried to comply by taking down several of the signs leaving what she believed to be only 30 percent of the total window space covered.

The code compliance officer returned on Wednesday, July 31, and issued another “notice of sign violation,” which stated:  “only allowed 30% per casement or sill area.”  Nouha was told to take down every single sign.  Nouha balked because the signs are the business’s primary way of advertising the month’s specials.  Nouha was given through the weekend to comply.   On Monday, August 5, the officer returned and ordered the Salibs to remove all of the signs in the Winchell’s.  The Mesa employee, rather than issue a citation, refused to leave until the signs were taken down.  Mrs. Salib relented and took down the signs.

Soon thereafter, Edward and Nouha Salib visited the Mesa zoning office seeking an explanation of why they had to take down their signs.  Patrick Murphy, an employee in the City’s redevelopment office, told them that the signs were “tacky” and asked them to leave without further explanation.  Completely unsatisfied with the City’s response, and suffering a significant loss of business, the Salibs have recently hung several of their signs.

An Egyptian immigrant-entrepreneur who loves his adopted country, Ed Salib declares, “Many Americans do not understand the great freedoms they enjoy.”  Salib has worked hard to build his business, working long hours and often sleeping on the shop’s floor or missing a night’s sleep altogether.  “The people who work for the City do not understand how much work it takes to run a small business,” says Salib, who is recovering from recent heart surgery.

“The City has taken away our freedom of expression,” declares Nouha Salib.  “We just want to be able to advertise to our customers and run our business without government interference.”

The Salibs’ Signs Are Free Speech Protected by the Arizona and Federal Constitutions

Any local government’s sign code in Arizona must comply with the free speech guarantees of the Arizona and federal Constitutions. [2]   A business’s signs, including the type of signs Ed Salib wants to hang in his windows, are a protected form of expression under both federal and state law.

Unfortunately, federal free speech jurisprudence and Arizona courts approach the question differently.  Perversely, federal jurisprudence distinguishes between political speech and commercial speech, resulting in a complex web of court decisions employing various tests to determine when the government’s regulation of speech violates the Constitution.  The Institute for Justice believes that the Salibs’ signs are protected speech under both federal and state law, but one goal of this litigation is to firmly establish that the Arizona Constitution’s free speech clause makes no such distinction between political and commercial speech.

The Arizona Constitution guarantees that “[e]very person may freely speak, write, and publish on all subjects, being responsible for the abuse of that right.” [3]   Not only have Arizona courts declared that Arizona’s free speech clause affords “broader” free speech rights than does the First Amendment, in circumstances in which both Arizona and federal law apply, Arizona courts will consult first the state constitution. [4]   Arizona courts have yet to determine whether the Arizona free speech provision distinguishes between commercial and non-commercial speech.  However, the California Supreme Court, interpreting the California Constitution’s nearly identical free speech clause, recently ruled that commercial speech enjoys greater protections under the California Constitution than the federal Constitution. [5]  

Under the federal jurisprudence, commercial speech receives less than the full measure of First Amendment protection. [6]   If Arizona courts choose to follow current federal free speech cases, they would likely adopt the Central Hudson test, named for the U.S. Supreme Court case that designated a four-part test to determine when a challenged commercial speech regulation violates the First Amendment: 1) whether the speech in question is First Amendment protected (which requires only that it be truthful and not misleading and advertising a lawful activity); 2) whether the government has a substantial interest in regulating the speech; 3) whether the regulation directly advances the government’s interest; and 4) whether the regulation is more extensive than necessary to advance the government’s interest.

The Salibs’ signs qualify as protected speech because they are not misleading and concern legal activity—selling doughnuts and coffee.  Although cities have a recognized interest in regulating signs to promote aesthetics and public safety, [7] a city’s mere reference to that interest without justification is not enough to sustain speech restrictions.  In other words, cities must do more than include language in the ordinance stating that it was enacted to further a certain interest.  The city must demonstrate that “the ordinance further[s] those interests.” [8]   As the U.S. Supreme Court put it, “This burden is not satisfied by mere speculation or conjecture; rather, a governmental body seeking to sustain a restriction on commercial speech must demonstrate that the harms it recites are real and that its restriction will in fact alleviate them to a material degree.” [9]

The City’s ordinance says that the rationale behind the 30 percent restriction is to allow people, specifically the police, to see inside the business. [10]   Mesa’s arbitrary sign ordinance clearly fails to provide a reasonable fit between the government’s ends and the means chosen to accomplish those ends, as required under Central Hudson.  About the only purpose the ordinance might serve is allowing the police to look into the businesses to ensure that all within is well, but police officers only require a finite amount of window space to observe conduct inside.  Yet the 30 percent rule does not set a specific size.  Seventy percent of a small window left clear might not be enough space.  Seventy percent of a large window may provide more than enough space.  Thus, the 30 percent rule—which the City recently admitted publicly was chosen randomly—has not been tailored to and does not effectively promote the City’s asserted interest in the public safety.

Additionally, recent Supreme Court cases construing Central Hudson have, arguably, raised the bar that a government seeking to restrict commercial speech must jump over. [11]   In 44 Liquormart, the U.S. Supreme Court invalidated a Rhode Island law forbidding truthful alcoholic beverage price advertising that the state hoped would promote temperance.  The Court ruled that Rhode Island supplied insufficient evidence concerning the efficacy of the ban in promoting consumption reduction to merit constitutionality. [12]   In the Lorillard case, the Court ruled that a Massachusetts ban on all outdoor smokeless tobacco or cigar advertising within 1,000 feet of any school or playground or at a point of sale in a manner less than five feet from the floor failed Central Hudson’s requirements, despite finding that Massachusetts “provided ample documentation of the problem with underage use of smokeless tobacco and cigars.” [13]

Conclusion

            The Institute for Justice Arizona Chapter seeks to protect the free flow of information indispensable to our free enterprise economy.  The Salibs simply want to communicate with their customers.  This case presents an opportunity to clearly establish the most robust protection possible for free speech under the Arizona Constitution—and possibly to reinvigorate First Amendment jurisprudence, as well.

Litigation Team

            The lead attorney in the case will be Court Rich, an attorney with the Nearhood Law Offices who is offering his legal talent and time pro bono to the Institute for Justice Arizona Chapter.  Tim Keller rounds out the litigation team.

Through strategic litigation, communications, training and outreach, the Institute for Justice advances a rule of law under which individuals can control their own destinies as free and responsible members of society.  The Institute for Justice litigates to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government.  Through these activities the Institute challenges the ideology of the welfare state and illustrates and extends the benefits of freedom to those whose full enjoyment of liberty is denied by government.  The Institute was founded in 1991 by William H. Mellor and Clint Bolick.

            For more information, or to arrange an interview with the Institute for Justice and its clients, please contact:

            Lisa Knepper, Director of Communications

            John E. Kramer, Vice President for Communications  

            Institute for Justice

            901 N. Glebe Road, Suite 900

            Arlington, VA  22203

            Phone:  (703) 682-9320    

            Fax:  (703) 682-9321

            E-mail:  lknepper@ij.org

                         jkramer@ij.org

 



[1] The East Valley Tribune reports that the City has been keeping a digital photographic record of downtown store signage for enforcement purposes since at least 2001.  Jason Emerson, “Sign police strike in Mesa,” East Valley Tribune, A1 (August 8, 2002).  The City says its records indicate a sign change at Winchell’s after passage of the new ordinances in 1999.  Id.

[2] Virginia State Bd. of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 7612-773 (1976).

[3] Arizona Constitution, Article 2, section 6.

[4] Mountain States Tel. & Tel. Co. v. Arizona Corp. Comm'n, 160 Ariz. 350, 354-56, 361 (1989).

[5] Gerawan Farming, Inc. v. Lyons, 12 P.3d 720, 735 (Cal. 2000).

[6] Central Hudson Gas & Electric Corp. v. Public Service Commission of New York, 447 U.S. 557, 565 (1980).

[7] One World One Family Now v. City and County of Honolulu, 76 F.3d 1009, 1013 (9th Cir. 1996) (Cities “have a substantial interest in protecting the aesthetic appearance of their communities by avoiding visual clutter . . . [and] in assuring safe and convenient circulation on their streets”) (internal quotation and citations omitted).

[8] Desert Outdoor Advertising, Inc. v. City of Moreno Valley, 103 F.3d 814, 819 (1996).

[9] Edenfield v. Fane, 507 U.S. 761, 770-771 (1993).

[10] Mesa City Code § 11-19-6(E)(3).

[11] See 44 Liquormart Inc. v. Rhode Island, 517 U.S. 484 (1996); Lorillard Tobacco Co. v. Attorney General of Massachusetts, 533 U.S. 525 (2001).

[12] 44 Liquormart, at 505-507.

[13] Lorillard, at 561.


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