May 29, 2018

Supreme Court declines to review an important First Amendment case

By Wen Fa Attorney

The First Amendment prohibits the government from silencing messages it doesn’t like. Yet San Francisco is doing exactly that with its sign ordinance. Under the ordinance, businesses can put up signs that advertise a location’s “primary business,” but not if it advertised an off-site business. Thus, a Barnes & Noble could put up a sign that says “buy the latest bestseller at Barnes & Noble,” but it couldn’t put up a sign that says “buy out-of-print books from our friends at RareBooks.com” — even if those signs were the exact same size, shape, and design. And what of the online retailers like Amazon and Etsy? Why should businesses without a physical location in San Francisco lose their First Amendment rights?

Unfortunately, the Supreme Court declined to answer those important questions today in Contest Promotions v. City and County of San Francisco. PLF, joined by our friends at the Cato Institute, filed a brief in support of First Amendment in the case. In Reed v. Town of Gilbert, the Supreme Court held that laws that restrict speech based on its message are subject to searching scrutiny. In Contest Promotions, however, the lower court applied a more deferential form of review, solely because the speech at issue happened to be commercial.

We hope that the Supreme Court will soon instruct courts to carefully scrutinize laws that restrict speech based on its message — regardless of whether that message is commercial or not. For now, the Court’s refusal to hear the case gives San Francisco the leeway it needs to discriminate against messages (and speakers) it doesn’t like. For the future, PLF will continue to litigate cases that aim to restore the First Amendment rights of all speakers.

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