Monday, September 16, 2006
Content-Based Exceptions Render Sign Ordinance Unconstitutional—C.A.
By a MetNews Staff Writer
A city ordinance prohibiting portable signs violated First Amendment rights where it contained content-based exceptions and the city could have accomplished its goals by less restrictive means, the Ninth U.S. Circuit Court of Appeals ruled Friday.
Saying it wanted to promote its traffic safety and community aesthetics, the City of Redmond, Wash. banned portable signs, including portable readerboards, signs on trailers and sandwich boards. The ordinance contained 10 exceptions, including celebration displays, political signs, real estate signs, temporary window signs and signs on kiosks.
Dennis Ballen, who owned the Blazing Bagels shop, hired an employee to stand on the sidewalk wearing a sign that read: “Fresh Bagels - Now Open.” The employee directed the attention of passing motorists to the shop and informed them of Ballen’s available retail products.
The city notified Ballen that he was in violation of the law and warned him that continued noncompliance would result in the initiation of code enforcement proceedings. It ordered him to cease and desist using a portable sign to advertise his business.
Ballen filed suit claiming that the ordinance did not directly advance the government’s interest and, in the alternative, reached further than necessary to accomplish that interest. U.S. District Judge Marsha J. Pechman of the Western District of Washington granted summary judgment to Ballen, and the city appealed.
While the appeal was pending, the city passed a new sign ordinance that rescinded the ban that was the basis of Ballen’s complaint, but said it would re-enact the old ordinance if it received a favorable outcome on appeal.
But the Ninth Circuit found the “inconsistent content-based nature” of the ordinance and the availability of less restrictive alternatives to achieve the city’s goals “fatal” to the ordinances validity.
Judge Richard C. Tallman, writing for the Ninth Circuit, said:
“The City has failed to show how the exempted signs reduce vehicular and pedestrian safety or besmirch community aesthetics any less than the prohibited signs.”
The judge continued:
“More specifically, ubiquitous real estate signs, which can turn an inviting sidewalk into an obstacle course challenging even the most dextrous hurdler, are an even greater threat to vehicular and pedestrian safety and community aesthetics than the presence of a single employee holding an innocuous sign that reads: “Fresh Bagels - Now Open. . . . [T]he City has protected outdoor signage displayed by the powerful real estate industry from an Ordinance that unfairly restricts the First Amendment rights of, among others, a lone bagel shop owner.”
Tallman also found that “temporary window signs and signs on kiosks are no less a threat to vehicular and pedestrian safety and community aesthetics than the ambulant bagel advertisement.”
The court found that “less restrictive alternatives . . . could have been used to advance the City’s interests.”
“The City could impose time, place, and manner restrictions on all commercial signs. Likewise, if the City found that signs with live people holding them are more distracting and therefore more hazardous than a silent sandwich board, it could ban such signs altogether.”
Judge Jay S. Bybee and Marilyn L. Huff, district judge for the Southern District of California sitting by designation, concurred in the opinion.
The case is Ballen v. City of Redmond, 04-35758
Copyright 2006, Metropolitan News Company