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