One would hardly relish the position of Jim Andrews, owner of Felony Franks on the Near West Side of Chicago. Andrews is suing after city officials refused to allow him to hang his sign as offensive. He has named not just the city by 2nd Ward Alderman Bob Fioretti (2nd) for what he claims is a denial of his free speech. He may have a point.
Fioretti admits that he finds the sign offensive. The restaurant hired ex-cons to give them a second chance.
He is asking for not just the right to hang the sign but $293,000 in damages. While there an ordinance pending in city council to nix all signs hanging over the street on Western, it would appear that the denial here may be content-based. This would certainly lead to a legitimate question of a denial of free speech.
We have seen prior free speech claims raised over signs and even the words of the first amendment.
Andrews cuts through the historical and legal pretenses and sums it up as “I think I’m being screwed.” He may be right.
Historically, aesthetic nuisances are weak claims that are rejected by the courts. If the city were to ban signs on the street, it could make for some interesting questions in court. It could explore whether the ordinance is targeting Felony Franks. More importantly, it will have to answer why these businesses are denied the right to hang signs as opposed to other businesses. There is also the takings aspect of failing to compensate owners for a limitation on their property.
When I grew up in Chicago, the city was divided not only between the Cubs and the White Sox, but between those who went to Fluky’s and Wolfy’s for their dogs. There was also Gold Coast Dog which was pretty good for folks near the loop. Northsiders (like me) are Cubs fans and eat at Wolfy’s. I used to go there with my late father who loved a good Chicago dawg.
Before you say the Constitution is going to the dogs in such cases, Felony Franks could make for an important ruling on the scope of free speech protections in such things as signage. While commercial speech has been given less protection than noncommercial speech, it is still protected. The Supreme Court noted in Edenfield v. Fane:
“The commercial market place, like other spheres of our social and cultural life, provides a forum where ideas and information flourish. Some of the ideas and information are vital, some of slight worth. But the general rule is that the speaker and the audience, not the government, assess the value of the information presented. Thus, even a communication that does no more than propose a commercial transaction is entitled to the coverage of the First Amendment.”
The proper use of time, place, and manner limitations is a constant concern of the courts. In 1981, the U.S. Supreme Court struck down a ban on outdoor advertising in Metromedia, Inc. v. City of San Diego. The ordinance allowed for 12 specified categories, but the Court found that the ordinance allowed officials to limit non-commerical speech. The plurality stated, however, the government could ban non-commercial speech in some circumstances. The problem was the sweep of the ordinance since “[b]illboards are a well-established medium of communication, used to convey a broad range of different kinds of messages.” It has to be done carefully, however: “With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse,. Because the San Diego ordinance reaches too far into the realm of protected speech, we conclude that it is unconstitutional.”
Under Central Hudson Gas & Electric Corp. v. Public Service Commission Of New York, the government must justify restrictions on truthful, nonmisleading commercial speech by showing the limitations or prohibitions “directly advance” a substantial state interest and are no more extensive than necessary to serve that interest. Felony Frank could argue that the denial does not satisfy the so-called Central Hudson Test even if the ban is passed.
This is clearly commercial speech, though with the hiring of ex-cons it has some non-commerical value. Such plurality decisions as Metromedia do not answer the question fully and this Supreme Court is now more agreeable to business claims, including some justices like Sotomayor and Breyer on the left of the Court.
We will closely follow the progress of the Felony Frank case.
Source: Chicago Journal
Jonathan Turley
The man’s concept and slogan are fabulous and there is nothing offensive about it. It being Chicago though I wonder if this is being backed by some other hot dog place owners. In any event Nathan’s has always made the best franks, all others are but poor imitations, save for Hebrew National who answers to a higher authority.
mahtso,
An end run around the prohibition against direct contributions that allows unlimited expenditures to promote or oppose electoral candidates via election advertisements and other ‘electioneering communications'” within 30 days of a primary election and 60 says of a general election by allowing corporations to spend on advertising directly has two effects:
1) It eliminates the possibility the pol will exercise editorial control of the message and
2) creates plausible deniablity if graft is ever mentioned (“Well I didn’t bribe Mr. Boner, but you’d be a fool if you thought that our company spending $10 million on advertising against his opponent was a consideration in his help obtaining government contracts.”).
3) Messaging is time sensitive. This was part of the reason of the prohibition found in McCain-Feingold; not allowing undue influence of corporations shortly before ballot time.
Corporations are effectively allowed to give unlimited amounts to campaigns for advertising as long as they pay the bill themselves and put in a lil’ ol’ disclaimer like the type most people never pay attention to in political ads.
It’s a distinction without a difference.
rafflaw,
If you are saying Buddha is Laughing was correcting me, please let me know where in its decision the Court held that corporations could give money to campaigns.
I was so surprised to read Buddha is Laughing’s comment that the decision authorized such expenditures that I went to the supremecourt blog and found the information I put in my first post. Rather than rely on only that source (which, for those who don’t know is run by a lawfirm, not the Court) I found this one:
From http://www.foleyhoag.com/NewsCenter/Publications/Alerts/Business/Business_Alert-021910.aspx (2/19/10)
The Citizens United decision:
“Authorized Use of General Treasury Funds. The immediate effect of this ruling is to allow corporations and labor unions to begin using general treasury funds to promote or oppose electoral candidates via election advertisements and other “electioneering communications.” Notably, however, Citizens United did not change the prohibition on direct corporate or union donations to candidates or campaigns, which remains in effect.”
“The restaurant hired ex-cons to give them a second chance.”
Why all the Fuss about a sign, would someone care to enlighten me.
Thanks for the correction Buddha. You beat me to it!
Gyges: Watch out for the Counterfeit Cassoulet. It’s not real duck.
At http://www.scotusblog.com/2010/01/citizens-united-v-fec-in-plain-english/ (Jan. 22, 2010) the following by Lisa McElroy appears:
“By now, you have likely heard the news: The Supreme Court ruled yesterday that the government may not keep corporations (and probably, as Lyle reasons in his post yesterday, labor unions) from spending money to support or denounce individual candidates in elections. While the business entities may not give money directly to campaigns, they may seek to persuade the voting public through other means, including ads, especially where these ads were not broadcast. Why? Because the First Amendment guarantees the right to free speech, and political spending is one form of that protected speech.”
I’ll admit that I am not going to read the 183 page opinion, but I’d be glad to get a reference to the portion showing that Ms. McElroy is wrong (i.e., showing that corporations may donate to candidates.)
mahtso,
Yep. You got that backwards. CU says corporations can give unlimited amounts of money to political campaigns. It’s an abomination and an affront to the Constitution.
This post is for the dawgs.
I thought Citizens United reaffirmed that corporations cannot donate to campaigns. Did I miss something?
Criminal Croquettes?
Counterfeit Cassoulet?
Forger’s Fish and chips?
Arsonist Apples?
Bank-Robber Breakfast burritos?
Mafia Muffalettas?
I’m still trying to figure out what’s so offensive about alliteration.
Former Fed,
I like that! “frankly”!
rafflaw,
Well said, counselor!
Frankly, Mr. Andrews, I do give a darn.
You are being skewered now, although you will likely get your free speech rights recognized through the courts.
It is possible that the real source of Mr. Fioretti’s ire is the sign’s phallic connotations.
Bob Fioretti? My sister dated him thirty years ago.
Another “ditto”…
Ditto rafflaw…
If Citizens United allows corporations to have the same or greater free speech rights when it comes to elections and donations, I can’t see how the City of Chicago can prevent Felony Franks from being displayed in a reasonable manner. I think it is a great name and it is producing more jobs than the Republican House. As a North Suburb Sox Fan, I was more of a hamburger guy, but the hot dogs at Superdawgs were awesome.