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. KF Nurse,

    Glue….I thought maybe Goolash….would be the more appropriate term…..

    But then again….did someone say BUD……Glad you’re back…….

  2. Blouise,

    As I once said, you’re the glue that holds this blog together. And I mean that in the best way.

  3. Congrads Gyges. Reminds me of the time when I had my second child which was a girl. She was the first granddaughter on both sides of the family. I presented her to my father expecting joy and jubilation from him what I got was a mediocre response. I asked him what’s a matter, I thought you would be happy. He said he was but I should of had another boy. He said, you see son, you got one boy already. Had you had another one, thats two boys to worry about. Now that you got that girl, you got to worry about all of them 🙂

    Best of health to the new addition !!!!!!!!!

  4. I’m . . . green.

    But then again, I’m always green.

    Glad to see you back, Blouise.

  5. AY,

    Stop it … you are not crushed … you are intrigued … and you are my best bud

  6. I am Crushed..but glad you’re almost back…….

  7. I appreciate every one of you … it is very late and I have to get to bed but I wanted to acknowledge your words.

    Suffice it to say that no one attacked me or insulted me … my sense of fair play was offended … I threw my mouse across the room and had to go buy a new one which serves me right

    OS … we will talk and come to an accommodation.

    Bob Esq … you are my rock!

  8. I think any regular should take a *brief* break from posting here the minute they are not thoroughly enjoying themselves. However, I think that unless you are on an island without Internet connections, you will find it very difficult to stay away from Turley’s Blawg for a full week. Even when I took my last respite from posting, I still tried to check in and read the comments whenever I could. Sometimes people simply get too busy with their real lives apart from their cyberspace lives.

    Of course, the foregoing does not apply to Guest Bloggers—“ Tote dat barge! Lif’ dat bale!!

  9. Mike,

    I am not like them so I’d never fit in….But from what I have read and understand….the Christians that claim the faith based in a Jesus….his mother…was given to the syn-agog …to be reared as children were at that time….probably not much difference between then and the Hasidics of present day religions…. .

  10. Gyges,

    Congratulations…The Journey has just begun….Never slack being the best role model that your gift can compare….never let her be ashamed to say….Hey that’s MY DAD…..

  11. I’m really sorry to hear your cat is sick too, Blouise.

    Double 🙁

  12. Blouise, sorry I upset you. You are valued here. We are a family of sorts, and like any family, will have disagreements. Do not stay gone, please. We have a lot of work to do between now and November 2012 and do not need to let distractions keep us from the end game. 😳

  13. I am at my grandmother’s home babysitting her aged and very sick cat. She and my Grandfather are off at a big meeting with union people planning the next political move against the republican administration. I will see her tomorrow at brunch and tell her to check the blog.

  14. Congratulations, Gyges. Those days seem like yesterday.

  15. Everyone,

    Thanks for all the well wishes. We’re all enjoying the newcomer, including my son, who if anything is a little too helpful.

    Mike,

    Communal identity is a big part of how we relate to food. One of the hardest parts of adjusting to marriage was trying to figure out whose family we’d eat like (the answer ended up being “Our own”). I hope no negative connotations came across when I was talking about food taboos.

    I’d be a little curious as to why the different grades of rum (gold and darker) are given a pass that gold tequila isn’t. I also want to thank you for researching the question, I think this may be the most interesting conversation I’ve had all week. I really do find stuff like this very interesting.

  16. Correction:

    Swarthmore mom 1, May 7, 2011 at 8:20 pm

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

    ——–

    So do I. (Buddha slipped in there… 🙂 )

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