Does protecting the right to put a “For Sale” sign in your own car “cheapen the grandeur of the First Amendment?” Seven dissenting federal judges think so.
The 6th Circuit Court of Appeals split 8 to 7 in a case about a city ordinance that makes it unlawful to place a “For Sale” sign in a car if the car is parked on a city street. The ordinance itself is silly, and this case, Pagan v. Fruchey and the Village of Glendale, Ohio, demonstrates how First Amendment jurisprudence has strayed from first principles.
This case is an example of how, even among very bright and conscientious jurists who frequently deal with complex facts and law, First Amendment “standards of review” have sown confusion, resulting in erosion of the Amendment’s protections.
Mr. Pagan wanted to sell his car, but classified ads weren’t working. He could park his car on the street, and he could place a “For Sale” sign in his car, but Glendale law prohibits both acts from occurring simultaneously. Pagan sued arguing that he has the First Amendment right to place the sign in his car, even if parked on a city street.
Pagan lost, but with representation by the Institute for Justice, appealed.
Both the majority and dissenting opinions on appeal address “commercial speech” cases under the First Amendment. Neither opinion quotes the text of the First Amendment itself, but both agree that an “intermediate scrutiny” standard of review governs commercial speech protections under the First Amendment.
That court-created standard isn’t the toughest for the government to overcome, but not the weakest either. It applies to commercial speech that is not misleading about lawful activities, which the courts acknowledge is subject to First Amendment protection.
Under the intermediate scrutiny standard of review, the government has some burden of proof to show that it has a “substantial interest” to regulate speech, that the regulation “directly and materially advances” that interest, and that the law is “narrowly” drawn. That is certainly less than a perfectly objective standard.
The dissenting opinion may startle those who believe that freedom in America still exists.
“The justification for forbidding the placement of for-sale automobiles on the public street,” begins that opinion, “is simply obvious: people may be drawn to stand in the street for nontraffic purposes.”
You may ask, “Why doesn’t the Village of Glendale simply ban ‘standing in the street for nontraffic purposes’ rather than violating the First Amendment?” The dissenting opinion anticipates your query: “Of course, [such a ban] does nothing to eliminate the very enticement that may lead prospective buyers into the roadway in the first place and does nothing to prevent driver distraction.”
That conclusion seems to assume that people in Glendale are so impulsive and careless that a “For Sale” sign in a car will cause dangerous car-ogling and mad dashes into oncoming traffic. The dissent cites some 225 cities in the 6th Circuit alone with similar silly ordinances to support its conclusion that the law is supported by common sense and therefore must be constitutional.
Repeal of such laws would lead to blood and guts all over the 6th Circuit. Oh, the horror!
The majority opinion, though, says that the government, even though it has a relatively weak burden of proof, offered no proof whatsoever that the law actually serves a “substantial” government interest. In other words, the government must prove its law is targeted at some harm, and not just speech itself.
Even Mr. Pagan did not dispute that the government has an interest in protecting public safety and city aesthetics. But because the government offered no proof that its law related to potential harms such as “standing in the street for nontraffic purposes,” the majority opinion said the purported government interests were speculative.
It is certainly less speculative that banning private “For Sale” signs in cars on streets, where such signs may be more visible, helps local car dealerships and newspaper classified sales. As with much regulation of speech, there is usually a political or financial motive that certainly is just as, if not more, credible than the justifications offered by the government.
The opinion sent the case back to the federal trial judge so that the government could try to meet its meager evidentiary standard.
The Pagan case does not stray from precedent. It is, however, noteworthy because it tells the government that it must do more than merely claim it has a substantial interest in regulating conduct when the regulation abridges a First Amendment right. Unfortunately, that has not always been the case in First Amendment decisions.
Judicial activism is a problem because judges act assuming they have more power than legislatures, which supposedly reflect the popular will. The sound doctrine of stare decisis, which is standing by precedent, can also be a problem if judges find the judiciary more authoritative than the Constitution itself. Perhaps some judges protect the “grandeur” of the judiciary more than the First Amendment.