Posted by: bridget | 16 March 2007

Because Poway Doesn’t Believe in the First Amendment

Poway is at it again.  One would think that, after getting slapped down by the Supreme Court in a free speech case (and, of course, by a fantastic Ninth Circuit dissent), the town would be a little hesitant to make too many speech regulations.  No such luck!  Poway has now decreed that human advertising is not allowed: people cannot stand on street corners and spin signs; the Statue of Liberty cannot advertise Liberty taxes, and, possibly, high schoolers cannot advertise car washes.

Generally, commercial speech is given much less protection that political speech.  The Central Hudson test allows governments nearly unfettered reign in restricting speech that is deceptive or advertises an illegal product; other restrictions on commercial speech must meet intermediate scrutiny (substantially related to an important government interest).   Poway’s desire for a picturesque town is not an important government interest and its means of doing so (banning any human advertising) are overly restrictive.  Some residents (including the Statue of Liberty) intend to fight the ban; the city will likely lose and, in the process, do nothing for Poway except to employ a few constitutional law attorneys.


  1. Hasn’t the ninth court been overturned something like twice as much as any other court?

  2. Considering that most courts are overturned roughly 60-65% of the time, my guess is no, the Ninth Circuit, egregious as it may be, isn’t overturned 130% of the time. ;)

    Averaging in the Ninth Circuit, 2/3 of appellate decisions are overturned. This makes some sense, as the Supreme Court may not want to take up cases that were decided correctly. The Ninth, as you point out, is the most overturned circuit in the country. Hence the reason for citing its dissents as likely law. ;) (Besides, the dissent is fantastic.)

    With the Harper case, the Ninth Circuit ruled for the defendant school district, stating that they can, in fact, prohibit a student from wearing a shirt with an anti-homosexual religious message on the Day of Silence. The Supreme Court vacated the decision (it was mooted, I believe, by his graduation?) and stated that the Ninth’s decision will not be controlling precedent.

    So it’s pretty shocking that Poway would again try a really severe speech restriction – this time, one that may also raise the ire of more liberal judges.

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