Local governments have no right to ban “sign walkers” who stand on street corners with banners directing passers-by to nearby businesses, the Arizona Court of Appeals ruled Tuesday.
The judges upheld a year-old state law which allows cities to adopt “reasonable” restrictions on such activity but prohibits an outright ban. They rejected arguments by the city of Scottsdale that the question of things like access to sidewalks is a strictly local issue and should be subject to local control.
Tuesday’s ruling, however, may not be the last word. City spokesman Mike Phillips said Scottsdale may seek Supreme Court review.
“One of the aspects of this case is who has the right to control the sidewalks and other public spaces in a community,” he said. “Our attorneys would argue that it’s really that community that should have the authority to control what takes place on those public areas.”
Clint Bolick of the Goldwater Institute said the city is right – but only up to a point.
He said the law allows cities to adopt “reasonable time, place and manner regulations.” Bolick, who represents a company that hires people to hold banners and signs for businesses, said what a city cannot do is ban the practice outright.
State lawmakers first approved a law preempting local regulation of sign walkers in 2008.
When the city continued to enforce its ban, legislators voted last year to tighten the language to force Scottsdale to back off. Instead, the city filed suit seeking to have the state statute declared void.
One point cited by city attorneys is that Scottsdale is one of 18 “charter cities,” specifically empowered under the Arizona Constitution.
“Under this authority, charter cities may regulate matters of strictly local concern without state interference or oversight,” acknowledged appellate Judge Kent Cattani writing for the unanimous court.
But he said lawmakers are entitled to preempt that authority “on issues of statewide scope or relevance.” And Cattani said the Scottsdale ordinance clearly steps into that area.
“Criminalizing conduct (with its attendant consequences) based on public activity on publicly owned walkways affects everyone who uses the walkway, regardless whether they are residents of the municipality,” he wrote.
The appellate judges were no more impressed by the city’s argument that its ban on such signs advertising commercial businesses did not violate constitutional protections of free speech.
“The First Amendment does not bar legislative action providing greater protections of speech than required under either the federal or state constitutions,” Cattani said.
Bolick, in a prepared statement, called Tuesday’s ruling “a victory for the little guy against the government Goliath.”
“Scottsdale tried to extinguish an entire industry and the people who earn their living in an innocent way,” he said.
“The court decided that Scottsdale can reasonably regulate sign walkers, but cannot ban them,” Goldwater continued. “That’s the right balance.”
Phillips said it is possible the city will not appeal but instead amend its ordinance to remove the outright ban in favor of some regulation. That, however, could lead to another lawsuit over whether the new rules are “reasonable.”