October 23, 2014

PLF challenges Alexandria’s “For Sale” sign ban

By Christina M. Martin Attorney

Scott McLean, a resident of Alexandria, Virginia, would like to sell his truck, but is afraid of getting a parking ticket, like he did two years ago, when he placed a “For Sale” sign on his car. Why would he get a ticket? Because the City of Alexandria bans “For Sale” signs on cars parked on city streets. McLean can advertise nearly anything else in his truck window without facing a fine, but he cannot advertise his truck. Today, PLF filed a lawsuit in federal court on behalf of McLean, challenging Alexandria’s ban on “For Sale” signs.

This may seem like a relatively small problem, but it highlights a much bigger one: government often treats “commercial speech” (speech that proposes a commercial transaction) as though the First Amendment does not protect it. The Supreme Court has repeatedly confirmed that the First Amendment does protect commercial speech. But the standard the Court applies to determine whether the government has violated the First Amendment is less protective than that applied to other kinds of speech: the government may impose limits on a person’s right to advertise if it has a “substantial” reason for doing so, and if its regulations are reasonable, and don’t restrict more speech than necessary.

As this blog has noted many times before, there are numerous problems with giving commercial speech less protection than other speech. First, there is no discernible line between purely commercial and non-commercial speech. Both benefit people, and both often contain elements of the other: advertisements may communicate ideas about politics, art, or culture and “non-commercial” speech may contain information or endorsements of goods and services. Businesses often use advertisements to state opinions about government policies, art, philosophy, or other protected forms of speech. Even the basic communication of the price and quality of a product has social value, because such advertisements can help people get the best deals while simultaneously helping them form intelligent opinions about the quality, safety, or social consequences of certain products.

Barriers to freedom of commercial speech do not just hurt some faceless corporation. When the government erects barriers to commercial speech, it makes that information more difficult to get, which can raise prices, hurting both the advertiser and the consumer. These barriers often benefit entrenched interest groups and hit the poor the hardest. The poor are often the ones most in need of cheap goods and inexpensive and easy ways to advertise goods or services. The rich can afford to pay for lawyers to navigate the laws and for many alternative ways of communicating messages. Alexandria’s law won’t hurt car dealers or Chevrolet. But when Scott McLean tried to put a “For Sale” sign in his parked Chevrolet, Alexandria hurt him where it counts: the wallet.

Bans on commercial speech are also the wrong vehicle for addressing legitimate problems like parking for too long in the same spot. Other laws can more directly address those problems. That’s why a few courts in other jurisdictions have already overturned nearly identical bans on “For Sale” signs. We are asking the Eastern District Court of Virginia to do the same.

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