Daily Decisions: First Amendment Protects Pornography; It Does Not Protect This Octopus

The right to think is the beginning of freedom, and speech must be protected from the government because speech is the beginning of thought.

– Justice Anthony Kennedy

It is the function of speech to free men from the bondage of irrational fears.

– Justice Louis Brandeis

Congress shall make no law . . . abridging the freedom of speech.

– U.S. Const. amend. I

In Catsiff v. McCarty (Division 3, April 12, 2012), the Court of Appeals held that the constitutional freedom of speech does not protect this octopus sign:

Octopus Hiding Behind Rainbow

Or this octopus sign:

Octopus Hiding Behind Buildings

Apparently, the First Amendment protects pornography and unlimited cash contributions to Super PACs, but not a huge painting of a purple octopus. Constitutional law is confusing.

Walla Walla implemented a “sign code” to regulate signage in downtown Walla Walla. The sign code regulates the size, height, and total area of business signs, and before hanging a sign a business must obtain a permit.

Robert Catsiff did not obtain a permit before unveiling the two signs shown above. The signs are for Catsiff’s store — the Inland Octopus toy store and gift shop, which has a nice website featuring pictures of the signs and a discussion of related litigation. The city determined that Catsiff’s signs violated the Walla Walla code. Catsiff appealed, claiming that the sign restrictions are unconstitutional.

First, the Court of Appeals held that the signs are commercial speech, which entitles them to a lesser degree of constitutional protection. The Court employed two independent tests to come to this conclusion: (1) that the signs were related solely to the economic interests of the speaker and the audience (i.e., the store and its customers) and (2) that the signs proposed a commercial transaction (i.e., come into my store and buy stuff).

But commercial speech is still entitled to some level of protection. The city was therefore required to justify its regulations. Because the Court determined that the relevant code provisions regulated only the non-communicative aspects of signs (height, size, area, etc.) the regulations would be upheld if they were (a) content neutral, (b) reasonable, and (c) supported by a legitimate (as opposed to compelling or substantial) government interest.

Under this analysis, the Court of Appeals concluded that the regulations are constitutional. The regulations are content neutral; they just concern measurements. The regulations are reasonable because the city was looking to limit over-sized signage, and the regs did just that. The regulations are supported by the legitimate interests of (i) traffic safety and (ii) aesthetics. While those are not huge interests, they are sufficient to regulate the non-communicative aspects of commercial speech.

Catsiff had a few additional arguments. He claimed that the regulations were vague because it is unclear what a “sign” is. But the Court had no trouble understanding the scope of the regs. He also argued that the regulations were overbroad because non-commercial speech would also be limited by the restrictions and permit requirements. The Court dismissed this argument by stating that the regs are really just about advertising, but I’m not convinced that’s right. In any event, questions of First Amendment overbreadth and the difference between facial and as-applied challenges to speech restrictions are way beyond my comfort zone (without a lot more research) or the scope of this blog post. Lastly, Catsiff argued that the regulations were a prior restraint, but the Court of Appeals concluded they were not. Rather, they are just regular old regulations and permit requirements for commercial signs.

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One thought on “Daily Decisions: First Amendment Protects Pornography; It Does Not Protect This Octopus

  1. Pingback: Monday Morning-ish Mash-up: April 16, 2012 | Ziff Blog

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