Is one of my city's ordinances unconstitutional?

[Simran]

Alright, guys. My friend Litepresense told me to post here the debate I've been having recently as I went over my city's book of ordinances.

This ordinance pertains to the first amendment, and how they limit "advertising on vehicles" to be unlawful within city limits. I find this to be unconstitutional and wish to have it repealed or amended. I put together a small writing regarding the issue, and I'd like you guys to go over it and tell me what you think. I don't mind bringing this up to my city's police chief and/or city commissioners.

https://docs.google.com/document/d/1neMQzxk_hdlDrs674r5gfBKKiKnMCp8lPlswy2ChQ3k/edit?usp=sharing

If you feel anything should be changed within the paper or added, please comment below. :)

--Simran

[angelatc]

Welcome to the forums!

I am not a lawyer - I've never worked for a lawyer, dated a lawyer, or been related to a lawyer. I Googled "Supreme Court advertising on cars" and only got one hit, but it's pretty pertinent to your case: http://supreme.justia.com/cases/federal/us/336/106/case.html

In that case, SCOTUS ruled that the city had the right to prohibit advertising on vehicles if the vehicle was not advertising the business related to that vehicle. Meaning that a guy couldn't rent out advertising space on the side of vehicles. http://supreme.justia.com/cases/federal/us/336/106/case.html

Looks like they didn't approach it from a 1st Amendment standpoint though.

Is this a petty little law designed to try to keep people from skirting the sign laws by getting their vehicles wrapped and parking them by the road?

[Simran]

Welcome to the forums!

I am not a lawyer - I've never worked for a lawyer, dated a lawyer, or been related to a lawyer. I Googled "Supreme Court advertising on cars" and only got one hit, but it's pretty pertinent to your case: http://supreme.justia.com/cases/federal/us/336/106/case.html

In that case, SCOTUS ruled that the city had the right to prohibit advertising on vehicles if the vehicle was not advertising the business related to that vehicle. Meaning that a guy couldn't rent out advertising space on the side of vehicles. http://supreme.justia.com/cases/federal/us/336/106/case.html

Looks like they didn't approach it from a 1st Amendment standpoint though.

Is this a petty little law designed to try to keep people from skirting the sign laws by getting their vehicles wrapped and parking them by the road?

Alright, well that isn't what I meant, however that is interesting, I didn't see it from that standpoint. My point of view was prohibiting all vehicles from using their vehicle for their business to be wrapped and drive around whether it be for going around say to store for personal business, or even for the purpose for advertising.

I'd actually like to edit my paper to add this new piece of information, although your comment wasn't quite exactly the point I was trying to show, but it is important in-case this was brought up.

What is your take on my point now that I've been more specific?

[angelatc]

Alright, well that isn't what I meant, however that is interesting, I didn't see it from that standpoint. My point of view was prohibiting all vehicles from using their vehicle for their business to be wrapped and drive around whether it be for going around say to store for personal business, or even for the purpose for advertising.

I'd actually like to edit my paper to add this new piece of information, although your comment wasn't quite exactly the point I was trying to show, but it is important in-case this was brought up.

What is your take on my point now that I've been more specific?

That's what I was asking - is this law written to keep people from wrapping their cars? Are they actually telling YOU that you can't wrap your car, or are you just in this on principle?

If you're in it on principle, the my opinion is that power-crats are power-crats. They don't actually care if the car wrapping doesn't hurt anybody, and they don't care if the law is unconstitutional. Once they've written a law, it is practically impossible for them to admit it was a bad idea and repeal it.

If you're in it for yourself, then I think you'll have to be prepared to fight them in the court system. Personally, I think that this law would be considered too much of a burden to be enforceable. Are they really seriously going to pull over everybody who drives into their town and give them a ticket for having a wrap on their car? What is stopping them from banning blue cars? Or U-Haul trucks?

If I were you....I'd talk to someone who owns a shop that does car wraps for a living. I'll bet he could steer you toward some laws that make this legal.

[Simran]

That's what I was asking - is this law written to keep people from wrapping their cars? Are they actually telling YOU that you can't wrap your car, or are you just in this on principle?

If you're in it on principle, the my opinion is that power-crats are power-crats. They don't actually care if the car wrapping doesn't hurt anybody, and they don't care if the law is unconstitutional. Once they've written a law, it is practically impossible for them to admit it was a bad idea and repeal it.

If you're in it for yourself, then I think you'll have to be prepared to fight them in the court system. Personally, I think that this law would be considered too much of a burden to be enforceable. Are they really seriously going to pull over everybody who drives into their town and give them a ticket for having a wrap on their car? What is stopping them from banning blue cars? Or U-Haul trucks?

If I were you....I'd talk to someone who owns a shop that does car wraps for a living. I'll bet he could steer you toward some laws that make this legal.

It keeps anyone from wrapping their cars for the purpose of advertisements, regardless if you are business owner or just another civilian promoting the business. I reason why I'd like this law to be more specific or repealed is simply the fact that police officers have the unconstitutional permission of the this ordinance to pull someone over. The officer may note cite for having a wrapped car, but may use it as probable to stop you and attempt to articulate another charge to give the person, such as drugs.

Does this mean if advertising is banned from vehicles, should police vehicles be cited for advertising their policing service within city limits?

[kcchiefs6465]

Alright, guys. My friend Litepresense told me to post here the debate I've been having recently as I went over my city's book of ordinances.

This ordinance pertains to the first amendment, and how they limit "advertising on vehicles" to be unlawful within city limits. I find this to be unconstitutional and wish to have it repealed or amended. I put together a small writing regarding the issue, and I'd like you guys to go over it and tell me what you think. I don't mind bringing this up to my city's police chief and/or city commissioners.

https://docs.google.com/document/d/1neMQzxk_hdlDrs674r5gfBKKiKnMCp8lPlswy2ChQ3k/edit?usp=sharing

If you feel anything should be changed within the paper or added, please comment below. :)

--Simran
There are two different schools of thought on this issue.

One is a legal positivist one, which exclaims that the law is the law so long as it was enacted as per the various means a given country or legislature may have regarding enacting legislation and that the Constitution is a living document which continues to evolve with passing generations and their often momentary concerns. Many of this school will say to you, "Just move."

There is another school of thought that understands the basis upon which the Constitution was founded upon. That is, natural law. That is to say that people are endowed inalienable rights from God or from their nature and they are there absent government declaration or equivocation. They argue the way of the Original Intent of the Constitution and shy away from usurping natural rights... no matter how many face the minority.

May God bless you for standing up for such a common sensical issue. It is your vehicle; your property. Put on it what you wish. (and one would like to think that'd be the end of the conversation)

Unfortunately the legal positivists and collectivists have bastardized law to such an extent that some feel it justifiable to dictate their beliefs and authoritarian customs over you. They think because a majority of a given district, or city, or state, or federal government elicits a plurality of votes, well then all is well in the world. They ignore freedom.

The SCOTUS included, with regards to any right spoken of within the Constitution. It is a sad state of affairs.

In any case, good luck. A broken clock is right a couple times a day so perhaps the "law" will work in your favor. If the people understood the law, though, they wouldn't need arbitrary courts exacting rulings from other arbitrary bad rulings.

As for whether it is or is not Constitutional, I'll argue for the not.

[Christopher A. Brown]

Hah, Sec. 126-146. yes, a violation of the first. However it is also inconsistent with the tax code that requires you put your business name on the side of a vehicle in order to use it as a write off.

A confusing situation at least and violation of the 1st at worst.

[Barrex]

PRIMARY PURPOSE OF DISPLAYING ADVERTISING.

Ask for clarification. Do they mean just cars that go around town advertising things or any cars with advertizing (ice-cream truck with ice-cream picture on it). In second case people could argue that it is not primary purpose of displaying advertising. You use it for business purposes and advertizing is not its primary purpose.

Do you have Taxis in your town? In some places they are legally obliged to provide their info (contact number, company name)= advertising.

It is stupid ordinance. I dont live in US.

[angelatc]

Hah, Sec. 126-146. yes, a violation of the first. However it is also inconsistent with the tax code that requires you put your business name on the side of a vehicle in order to use it as a write off.

That's not part of the tax code.

As to the OP, you're right about this being an excuse for the police to pull you over.

I do not think this law would stand up in challenged in court. But I also do not think the people in charge will turn it over unless the courts make them turn it over. Good for you for standing up to them.

[John Taylor]

Alright, well that isn't what I meant, however that is interesting, I didn't see it from that standpoint. My point of view was prohibiting all vehicles from using their vehicle for their business to be wrapped and drive around whether it be for going around say to store for personal business, or even for the purpose for advertising.

I'd actually like to edit my paper to add this new piece of information, although your comment wasn't quite exactly the point I was trying to show, but it is important in-case this was brought up.

What is your take on my point now that I've been more specific?

Well, I am an attorney, and I have litigated over a hundred trials thus far in my career, representing hundreds of clients in criminal, civil, family, and matters involving constitutional issues and claims.

The effort necessary to overturn such an ordinance is likely beyond your pro-per ability (no offense intended). I suggest you contact your State's equivalent of the Goldwater Institute here in Arizona, and request they assist you in litigating this issue.

Good luck.

[Christian Liberty]

There are two different schools of thought on this issue.

One is a legal positivist one, which exclaims that the law is the law so long as it was enacted as per the various means a given country or legislature may have regarding enacting legislation and that the Constitution is a living document which continues to evolve with passing generations and their often momentary concerns. Many of this school will say to you, "Just move."

There is another school of thought that understands the basis upon which the Constitution was founded upon. That is, natural law. That is to say that people are endowed inalienable rights from God or from their nature and they are there absent government declaration or equivocation. They argue the way of the Original Intent of the Constitution and shy away from usurping natural rights... no matter how many face the minority.

May God bless you for standing up for such a common sensical issue. It is your vehicle; your property. Put on it what you wish. (and one would like to think that'd be the end of the conversation)

Unfortunately the legal positivists and collectivists have bastardized law to such an extent that some feel it justifiable to dictate their beliefs and authoritarian customs over you. They think because a majority of a given district, or city, or state, or federal government elicits a plurality of votes, well then all is well in the world. They ignore freedom.

The SCOTUS included, with regards to any right spoken of within the Constitution. It is a sad state of affairs.

In any case, good luck. A broken clock is right a couple times a day so perhaps the "law" will work in your favor. If the people understood the law, though, they wouldn't need arbitrary courts exacting rulings from other arbitrary bad rulings.

As for whether it is or is not Constitutional, I'll argue for the not.

Some of us don't agree with the natural law OR legal positivst approaches. In fact, natural law leads to legal positivism IMHO.

[Weston White]

That ordinance you are referencing seems only to apply to vehicles that are being driven about the public for the primary purpose of advertising. For example, within your city are there UPS, FedEx, Walmart, Geek Squad, and various grocery, catering, lawn service, plumbing, locksmith, glass repair, and tow trucks, etc. driving around without any such incident?

Here is a 1911 SCOTUS case concerning New York that seems to be based upon that very notion, although with regard to XIV Amendment equal protections:


The advertising signs on plaintiff's coaches have no relation to their operation or to the physical comfort, convenience, or health of the passengers or the public, and are merely an incident to the use of the stages in the operation of the franchise belonging to it for the transportation of passengers.

It was concluded from the facts found that the advertisements were not a nuisance, could not be judicially condemned on esthetic grounds, that the health, safety, or comfort of passengers and the public are not injured by them, that plaintiff failed to prove that their display was a necessary incident to the operation of the stages, that, by its franchise, it did not acquire the right to display advertisements for hire, and that such display was ultra vires, being neither incidental to nor implied by the powers conferred by plaintiff's charter or bylaw. It was further concluded that the streets of New York could only be used for street purposes, and that the display of advertising signs by plaintiff was not a street use.
. . .
"It appears that the right to display garish advertisements in conspicuous places has become a source of large revenue. If the plaintiff can cover the whole or a large part of the exterior of its stages with advertisements for hire, delivery wagons engaged by the owners in their usual business or regular work can rightfully be covered with similar advertisements. Cars and vehicles of many descriptions, although not engaged exclusively in advertising, and thus not incumbering the street exclusively for advertising purposes, may be used for a similar purpose. The extent and detail of such advertisements, when left wholly within the control of those contracting therefor, would make such stages, wagons, or cars a parade or show for the display of advertisements which would clearly tend to produce congestion upon the streets upon which they were driven or propelled. The exaggerated and gaudy display of advertisements by the plaintiff is for the express purpose of attracting and claiming the attention of the people upon the streets through which the stages are propelled."

The court cited Commonwealth v. McCafferty, 145 Mass. 384, in which an ordinance was sustained which prohibited the placing or carrying on sidewalks, show boards, placards, or signs for the purpose of there displaying the same. It was said in this case that the tendency and effect of such signs might be to collect crowds, and thus interfere with the use of the sidewalks by the public, and lead to disorder, and that such a provision applicable to the crowded streets of a populous city was not unreasonable.
. . .
The distinction between business wagons and those used for advertising purposes has a proper relation to the purpose of the ordinance, and is not an illegal discrimination. The same comment may be made as to the charge that the ordinance discriminates between two classes of passenger carriers having charter rights to use the streets.


See: http://supreme.justia.com/cases/federal/us/221/467/case.html

Further, ‘color of law’ violations are only applicable when a qualified act is provably targetable at a specific individual or group. These types of cases are virtually impossible to prove without an insider/whistleblower coming forward.

Finally, I would tend to think that the First Amendment aspect would run into a wall through the TPM rules, for example:


The U.S. Supreme Court in Central Hudson firmly held that commercial speech was entitled to less protection than noncommercial speech. Concomitantly, municipal regulatory authority over commercial signs is greater than it is for noncommercial signs. [28] While this does not mean that municipalities have unlimited power to restrict the content of commercial speech on signs, courts will apply the less demanding Central Hudson [See below.] test to local laws and ordinances that affect commercial speech. [Dunn & Bradstreet Inc. v. Greenmoss Builders Inc., supra]

Commercial speech is subject to modes of regulation that might be impermissible in the realm of noncommercial expression. [Board of Trustees of the State Univ. of New York v. Fox, 492 U.S. 469, 477 (1989) quoting Ohralik v. Ohio State Bar Ass'n, 436 U.S. 447, 456 (1978)] For example, communities have, through their sign laws, prohibited the erection of billboards in areas where they would interfere with esthetics or traffic safety, [Suffolk Outdoor Advertising Co., Inc. v. Hulse, 43 N.Y.2d 483, 489 (1977)] the operation of vehicles solely for the purpose of displaying commercial advertisements, [People v. Target Advertising Inc., 184 Misc.2d 903 (N.Y.City Crim.Ct. 2000)] and the placement of building facade signs. [Syracuse Sav. Bank v. Town of DeWitt, 56 N.Y.2d 671 (1982)] Because commercial speech is entitled to less protection than noncommercial speech, where commercial signs are permitted, the local government must make sure noncommercial messages are allowed on the sign.

[28] United States v. Edge Broadcasting Co., 509 U.S. 418, 430 (1993). In that case, the U.S. Supreme Court made clear that commercial speech is to be afforded less constitutional protection than noncommercial speech (referring to the "subordinate position of commercial speech in the scale of First Amendment values"). See also Dunn & Bradstreet Inc. v. Greenmoss Builders Inc., 472 U.S. 749 (1985) and Central Hudson Gas & Electric Co. supra. Note however that in City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410 (1993), the US Supreme Court seemed to depart from this rule when it held that the City of Cincinnati could not prohibit the placement of commercial advertising in newsracks, solely on the ground that held commercial speech deserves less protection than noncommercial speech. The City’s prohibition of commercial materials on newsracks was a content-based distinction that was impermissible under the First Amendment.


In a case arising out of New York, Central Hudson Gas & Electric Corp. v. Public Service Commission, [Central Hudson Gas & Electric Co. v. Public Service Commission, 447 U.S. 557 (1980)] the U.S. Supreme Court developed a four-part test for determining whether a given restriction on commercial speech is constitutional:

Is the expression protected by the First Amendment? For commercial speech to be protected by the First Amendment, it must concern lawful activity and not be misleading.

[I]Is the asserted governmental interest substantial? To restrict commercial speech, the governmental interest need only be “substantial,” whereas for noncommercial speech that interest must be “compelling.” [Playboy Entertainment, supra]

Does the regulation directly advance the governmental interest asserted? The regulation of commercial speech will not be “sustained if it provides only ineffective or remote support for the government’s purpose.” [447 U.S. at 564]

Is the regulation no more extensive than is necessary to serve that interest? The sign law must be narrowly tailored to achieve the government’s interest. This means that if the Court finds the law is too broad or that there are other less restrictive alternatives
then the law will not be upheld. [447 U.S. at 565]

See: http://www.dos.ny.gov/lg/publications/Municipal_Control_of_Signs.pdf

[erowe1]

Alright, guys. My friend Litepresense told me to post here the debate I've been having recently as I went over my city's book of ordinances.

This ordinance pertains to the first amendment, and how they limit "advertising on vehicles" to be unlawful within city limits. I find this to be unconstitutional and wish to have it repealed or amended. I put together a small writing regarding the issue, and I'd like you guys to go over it and tell me what you think. I don't mind bringing this up to my city's police chief and/or city commissioners.

https://docs.google.com/document/d/1neMQzxk_hdlDrs674r5gfBKKiKnMCp8lPlswy2ChQ3k/edit?usp=sharing

If you feel anything should be changed within the paper or added, please comment below. :)

--Simran

I don't think the suggested amendment makes sense. It really has nothing to do with anti-discrimination law. No need to open up that Pandora's box.

A big problem I see is that the ordinance deals with intent. So they don't ban having pictures or words on cars. They just ban the intent behind those. I think that's where you'll be able to get them.

[angelatc]

I'm really confused about what they're trying to accomplish with this. It seems to me that as long as you're driving the car back and forth to work every day then you're exempt.

Is there someone in town who bought a car, wrapped it in an ad, and then parked it without moving it? Most places I live could get that towed after a day or two anyway.

[Simran]

I'm really confused about what they're trying to accomplish with this. It seems to me that as long as you're driving the car back and forth to work every day then you're exempt.

Is there someone in town who bought a car, wrapped it in an ad, and then parked it without moving it? Most places I live could get that towed after a day or two anyway.

Well, in front of their own businesses/property, but I see some that drive around that just drive to advertise. The problem is the officer being allowed to stop you regardless whether it was your intent or not. The officer doesn't know.

[mrsat_98]

Key word "primary" , even the beer can/ red bull can driving down the raod from the free gas sites (http://www.freegashelp.com/) is legal because of that word.

[Simran]

Key word "primary" , even the beer can/ red bull can driving down the raod from the free gas sites (http://www.freegashelp.com/) is legal because of that word.

But how does an officer know whether advertising was your "primary" intent before stopping you?

[kcchiefs6465]

Some of us don't agree with the natural law OR legal positivst approaches. In fact, natural law leads to legal positivism IMHO.
Care to expound on that?

[Simran]

I like the info I'm getting here! :D