CINCINNATI — A federal appeals court will decide if an Ohio village violated
a man's freedom of speech when it forced him to remove a "for sale" sign on a
car parked in front of his home.
Chris Pagan said Glendale police threatened to cite him in 2003 under an
ordinance forbidding such signs on vehicles in public areas.
Pagan, an attorney, removed the sign from his 1970 Mercury Cougar and said it
hurt his ability to sell the car, which he had received as partial payment for
his work on a case.
When attempts to sell the car through a newspaper ad and a classic-car Web
site failed, he resorted to the "for sale" sign.
"I sold it under market value, because it was the best deal I could get,"
said Pagan, who later filed a federal lawsuit to challenge 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 sentenced to 30 days in jail.
Pagan lost an earlier appeal in the case when a district court ruled in favor
of the village and its police chief, the defendants in the case. All 14 judges
of the 6th U.S. Circuit Court of Appeals were scheduled to hear arguments
today.
Such hearings are held only a few times a year when a majority of active
judges agree that a case presents a question of exceptional public importance.
When a majority agreed in September to hold a full-court hearing, it withdrew
its 2-1 panel ruling in May in favor of the city.
Village Police Chief Matt Fruchey said in an affidavit that the ordinance
aimed "to prohibit attractions or activities which would induce people to come
into the roadway," putting them in danger. He also said the ordinance makes the
village environment more pleasant.
The case is Pagan v. Fruchey.
Lawyers for the Institute for Justice in Arlington, Va., hope the case helps
redefine commercial-speech rights, which are less protected than expressions of
opinion.
The institute wants Glendale's ordinance declared unconstitutional, arguing
that the Cincinnati suburb failed to prove that its regulation reduces a danger
to the public.
"If they can ban totally harmless speech on a whim, what happens when more
controversial speech comes along?" said Jeff Rowes, a lawyer for the institute
who is helping Pagan with the case. "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."
The institute has won and lost similar cases. It also was behind the
successful attempt to block the nearby city of Norwood from seizing private land
for a complex of offices, shops and restaurants.
It helped defeat a city ordinance in Redmond, Wash., where the city tried to
prevent a bagel shop owner from hiring someone to carry a sign that officials
called distracting. The 9th U.S. Circuit Court of Appeals struck down the
ordinance in September.
But in Mesa, Ariz., the city prevailed when it ordered a doughnut shop owner
to remove posters from his front window, alleging that the posters interfered
with the ability of police to see into the shop.