Sign case gets rare hearingIn 2003, Pagan parked a 1970 Mercury Cougar with a “for sale” sign in front of his Sharon Road home. But Glendale police threatened to cite him under an ordinance forbidding such signs on vehicles in public areas.
The village has argued in court that commercial signs are regulated for safety reasons, on the chance that “careless, irresponsible people might get run over while looking at them..."
(http://news.enquirer.com/apps/pbcs.dll/article?AID=/20061204/NEWS01/312040001)
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Sign case gets rare hearing
BY JANICE MORSE | ENQUIRER STAFF WRITER
The car Chris Pagan wanted to sell is long gone. But he kept the “for sale” sign, in case he might need it as evidence in a three-year federal court battle over his right to use the sign.
In 2003, Pagan parked a 1970 Mercury Cougar with a “for sale” sign in front of his Sharon Road home.
But Glendale police threatened to cite him under an ordinance forbidding such signs on vehicles in public areas.
Pagan, who practices law in Butler County, tried to negotiate, but village officials wouldn’t budge.
So Pagan removed the sign.
Inquiries about the car dried up because nobody knew it was for sale, Pagan said. “I sold it under market value, because it was the best deal I could get.”
Pagan filed a federal lawsuit, launching a freedom-of-speech crusade against the village’s half-century-old sign regulation.
“This is not a trivial thing. Glendale was seeking to throw me into the criminal justice system and subject me to jail time – and they can’t do that when they’re violating the First Amendment,” said Pagan, who could have been fined up to $250 and spent 30 days in jail.
On Wednesday, Pagan’s case will be debated in an unusual hearing before all 14 judges of the U.S. 6th Circuit Court of Appeals. Such hearings are held only a few times a year and are reserved for cases that present a question of “exceptional public importance,” the Institute for Justice says.
That Arlington, Va.-based national group helped Norwood residents in their fight against eminent domain.
Now, the group is helping Pagan. Lawyers for the institute predict the case’s outcome will exert national influence over freedom-of-speech issues and could redefine “commercial speech” rights for 32 million Americans who live in the court’s four-state territory.
“If Glendale wins, then – at least in the 6th Circuit (Michigan, Ohio, Kentucky and Tennessee) – governments will be able to ban even the most harmless speech just because they feel like it,” said Jeff Rowes, an institute lawyer. “If they can ban totally harmless speech on a whim, what happens when more controversial speech comes along? If we decide that putting someone in jail is the right way to deal with ordinary speech like a ‘for sale’ sign, the First Amendment is in grave jeopardy.”
Glendale’s attorney, Larry Barbiere, did not return telephone requests seeking comment.
The village has argued in court that commercial signs are regulated for safety reasons, on the chance that “careless, irresponsible people might get run over while looking at them...(yet) Glendale did not even offer any evidence that ‘for sale’ signs actually cause people to get run over,” the institute says.
Nevertheless, a three-judge panel of the 6th Circuit previously ruled in Glendale’s favor.
Rowes said the case is being reconsidered by the full 14-judge court because “a majority of the judges think there’s a good chance that the original decision put a major dent in the First Amendment that the full court needs to fix.”
The case comes at a time when First Amendment issues are coming to the fore regularly, particularly those involving “commercial speech,” such as advertisements. Previous U.S. Supreme Court decisions have classified commercial speech as less-protected than other types of speech.
The institute argues that all speech is vital to a free society and that “the core principle of the First Amendment is that government cannot suppress a message just because the government does not like it.”
Signs that say “for sale” deserve the same constitutional protections as signs that say “Go Buckeyes,” “Support our Troops,” or “Vote Smith,” the institute says.
The institute wants Glendale’s ordinance declared unconstitutional, arguing that the village failed to prove its speech regulation reduces a concrete danger to the public.
Previous 6th Circuit and U.S. Supreme Court decisions have said that “the government only gets to regulate speech when it has real evidence that the speech is a real danger,” the institute says.
The institute also argues: “The First Amendment does not tolerate censorship of truthful commercial speech about lawful conduct just to protect listeners from the temptation of bad choices.”
E-mail jmorse@enquirer.com
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