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6th Circuit looking at battle over 'for sale' sign

By The Associated Press
12.06.06

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.


Update
At issue in for-sale sign case: safety or free speech?
One man's commercial speech weighed against Ohio town's claim of traffic hazard as 6th Circuit hears arguments in dispute over sign on car in front of his house. 12.07.06

Related

Phoenix sign-clutter law upheld

State appeals court rejects free-speech challenge by doughnut-shop owner. 05.08.06

9th Circuit backs bagel baker in legal brouhaha over signs

By Melanie Bengtson Unanimous three-judge panel finds Washington city's ordinance violates Dennis Ballen's commercial-speech rights. 09.21.06

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