September 13, 2016

First Amendment lawsuit challenges ban on advertising

By Larry G. Salzman Senior Attorney

When Michael Cefali wanted to sell his Volkswagen, he did what all of us have done at one time or another: parked it on the street near his home with a for-sale sign in the window. Instead of drawing the attention of a buyer, however, he was fined by the sheriff in his home town of San Juan Capistrano, Calif., for “displaying a for sale sign” on his car. He was shocked to learn that a city ordinance censors those signs. Cefali, who graduated law school this year, thought that such ordinances were unconstitutional. And when he investigated by doing a public records act request, he learned that the city regularly enforces the ordinance and generates significant revenue every year by handing out tickets. He decided something should be done, and today joined with PLF to file a federal free speech lawsuit aimed at striking down the law.  

Under the First Amendment, laws that restrict speech based on its content are almost always unconstitutional. Yet that is exactly what San Juan Capistrano’s ordinance does: communicating the truthful message that one’s car is for sale by displaying a sign is illegal, but nearly any other message displayed on an identical sign on one’s car escapes punishment. The U.S. Supreme Court has repeatedly said that laws restricting speech may be justified only when the government proves that the law is the least restrictive way to achieve a truly compelling purpose.

Cefali had previously participated in PLF’s Liberty Clinic project, which sponsors a constitutional litigation program at the Dale E. Fowler School of Law at Chapman University (in partnership with the school’s Constitutional Jurisprudence Clinic and The Claremont Institute). Cefali turned to the clinic for help in challenging the law. Law students enrolled in the clinic this semester will do hands-on work in the case, under the supervision of PLF attorney Larry Salzman.

PLF successfully challenged a similar law last year in Alexandria, Virginia. Although advertising is sometimes denigrated, the Supreme Court has noted that consumers have “an interest in the free flow of information” which “may be as keen, if not keener by far, than [their] interest in the day’s most urgent political debate.” Simply put, free markets require freedom of speech.

What to read next