Sign Ban Violates Free Speech

U. S. Court of Appeals, Ninth Circuit Ballen v. City of Redmond, 2006

February 1, 2007

A federal appeals court has determined that a widespread ban on off-site advertising signage based on sign content was too broad to be constitutional. The City of Redmond, Wash., had passed a law generally prohibiting portable and off-site signage for aesthetic and traffic-safety reasons. Several types of signs, including those for real estate, were exempted.

The ordinance was challenged by the owner of a bagel shop, who had hired a person to wear a sign advertising the new shop. The trial court had ruled for the owner, finding that the ordinance violated the rights of free speech guaranteed under the First Amendment. The appeals court affirmed the decision.

The court decided that the law failed to pass one of the four tests that must be met to regulate commercial speech, such as advertisements, and not violate First Amendment protection. This test, that regulations aren’t more extensive than necessary to serve the government’s stated interest, wasn’t met, because the rules regulating signs were based purely on content, said the court. This limitation didn’t serve either to promote traffic safety or aesthetics, but instead favored certain industries over others.

The court also rejected the idea of eliminating the exemptions to the regulations, which would have then banned real estate signs, because the groups that would have been affected by the change weren’t part of the lawsuit.

NAR supported the state REALTOR® associations in the Ninth Circuit by contributing financially toward the filing of an amicus curiae brief in support of preserving the exemption for real estate signage.