In a decision out of Ohio, the US Court of Appeals for the Sixth Circuit, held in Pagan v. Fruchey, No. 04-4414 (6th Cir. June 29, 2007) that the First Amendment prohibits the government from outlawing a “for sale” sign on cars parked on a public street.
After he was threatened with a ticket for leaving his car on a Glenwood, Ohio street with such a sign, the car’s owner brought suit in federal court for violation of his First Amendment commercial speech rights. The question before the court was not whether the sale sign was commercial speech or whether it was constitutionally protected — the parties agreed that it was. The issue was whether Glenwood had justified its restrictions as advancing an important regulatory objective. Glenwood claimed that the ordinance advanced its interests in traffic safety and “aesthetics,” but the court held these were mere conclusions, and there was no data to support these goals. The city claimed it would be too expensive and time consuming to commission studies on whether the restriction would advance the goals, and that its conclusions were ones of “common sense” and “obviousness.”
The court rejected that contention, holding it is the government’s burden to establish that speech restrictions are necessary, and that there must be some evidence to support the government’s reasoning. More on the decision from the Cincinnati Enquirer here.
This case may be of some interest to Honolulu residents who don’t use craigslist to buy and sell their vehicles. In a recent “Bureaucracy Buster” column in the Advertiser, “No car-sale signs on city land,” Honolulu’s similar sign prohibition was discussed:
Q. How come a private citizen gets a citation for displaying a for-sale sign in his vehicle while vehicles with business logos don’t? This law is a double standard and must be abolished. Isn’t it a violation of my constitutional rights?
A. Honolulu police said a city ordinance specifically bans parking a car for sale in a public area in this county.
“If the car is parked on public property, it would basically be allowing commercial use of a public property,” said Lt. Mark Boyce. “You should not be using public property to sell anything.”
But someone can place a sign advertising a business on a vehicle, Boyce said, because “that’s not trying to sell the car.”
Honolulu’s vehicle code is not as broad as Glenwood’s, and only prohibits “for sale” displays on cars on “roadways” (meaning city land), not private property:
No person shall park a vehicle upon any roadway for the principal purpose of:
(a) Displaying such vehicle for sale; or
(b) Washing, greasing or repairing such vehicle, except repairs necessitated by an emergency.
Hon. Rev. Ord. § 15-14.7. The ordinance only prohibits a narrow class of commercial messages (“please buy this car”), and not other commercial messages, even those related to automobiles (“please visit my car dealership”). Also, the ordinance does not prohibit political speech; for example, if a car’s owner put a “Vote for Candidate X” in the window and parked on a public street.
I wonder whether Honolulu has undertaken the studies and has the empirical proof required to support a distinction between classes of commercial speech, and justifying its apparent goal to prohibit people from speaking based on the message they are attempting to convey?