Felony Franks Sues City Over Misdemeanor Message

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

84 thoughts on “Felony Franks Sues City Over Misdemeanor Message”

  1. AY, There is only one Blouise. Wish she would come back.

  2. Blouise fan 1, May 7, 2011 at 8:01 pm

    Miss you, Blouise.

    ———-

    That makes two of us…

  3. AY,

    To me Hassidism is a cult within Judaism. I was a NYC liaison to the most liberal(and largest)Hassidic community in early 70’s and they still seemed like a cult to me. All cults are bad, some are really bad, but
    being less bad doesn’t help the members much.

  4. Gyges,

    Congrats on the little one – glad to hear all is well with the wife and baby!

  5. Anonymously Yours
    1, May 7, 2011 at 11:25 am
    How about…turning it into a gay bar and calling it Erogenous Franks…. or Spank the Frank…..

    🙂 chuckle

  6. But Mike…Don’t you just hate it when the Hasidic’s make Whine….

  7. Gyges,

    Did some research and found the following:

    All wines must have Kosher inspection of the manufacturing process and have a Kosher Label, same for Brandy which is wine-based.

    All silver tequila’s are Kosher, with or without labels. Gold tequila must have been inspected and labelled.

    All Scotch that has no flavoring or additives are Kosher, this is the same for Rye, Vodka, Rum (silver as with tequila)etc.

    All liqueurs must have Kosher inspection of the manufacturing process and a label.

    The distinction is one of the process used and the casks used.
    Certain impurities may be present in the manufacturing process and in the casks used for aging. As far as additives go some may not meet the Kosher standard. There is also the question that many liquors (as with food) may be normally Kosher, but may not be Kosher for Passover. That distinction comes from whether a product in manufacturing comes in contact with materials that have not been cleansed of what is call “Humeitz,” usually materials used in the baking of bread.

    My wife and I are no longer Kosher, but we were when my oldest daughter (who is religious)lived at home and for a few years after she married. While I grew up in a Kosher home, it has never been something I personally believed in. My daughter married a man who had completed Rabbinical training but chose to get an MSW and Law Degree. He endeared himself to me when I first met him when he told me he was a radical feminist,which he is. As a family they are highly observant and the only difference
    between them and the average Orthodox Jews are that they worship in Synagogues that are completely egalitarian in nature.

    I admire them greatly as people, but also for the lifestyle they’ve chosen. There is a joy in it, that creates a family harmony and it is really a discipline for living that can be quite rewarding. It’s not for me or my wife, but yet we do observe many Jewish rituals and are quite proud of our heritage.
    Although as a Deist I’m certainly not pious, there has never been a day in my life that I haven’t been proud of being Jewish and glad that I was born so. There is as one may suspect a definite tribal aspect to it, however, tribalism is not of itself antithetic to believing in the commonality and relationship of all of humanity.

    As you continue with the growth of your family, having gotten to know something of you from this blog, I know that in your way, your family will also find the peace and personal structure to help you all through life bound by the commonality of your love and in the personal family rituals you develop, which will become cherished memories for your children as they grow and mature.

  8. How about…turning it into a gay bar and calling it Erogenous Franks…. or Spank the Frank…..

  9. Simple solution: Change the sign from Felony Franks to Felonious Franks. One should use an adjective to modify a noun. That would make the sign much less offensive to those of us who care about the way language is used/abused.

    😉

  10. Gyges,

    Although private congratulations have been made, I’d like to publicly congratulate you and the Mrs. on the newest addition to your family. May she grow up to stay away from drummers and lawyers. 😉 Salut!

  11. Raff and FFLEO,

    Everybody’s doing great. So far sleep isn’t really that big of an issue. Of course I rarely get a full 8 hours anyway, so going from 5 1/2 to 5 hours isn’t that huge of a change.

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