Jim Torgeson is just a guy with a sign. Well, a guy with a sign and a crew of 150 other guys with signs who contract to stand in front of car dealerships around the Valley, pimping the wares.
Unfortunately for Torgeson, holding a sign on a street corner in Scottsdale where there are a lot of dealerships is a crime. So the small-business owner has taken his cause to the Arizona Legislature and, if he can, he'll take it all the way to the U.S. Supreme Court, he says.
Since Torgeson's run-in with the law in January, state lawmakers have been pushing through a bill to mitigate the penalties for sign-twirling. At the same time, Scottsdale's leaders have pushed forward with their sign-ophobia, banning political signage.
Scottsdale isn't the only city in metropolitan Phoenix with sign ordinances that regulate advertising on street corners, but its rules are the strictest. In Scottsdale, holding a sign on a street corner is a criminal misdemeanor that can lead to six months in jail, a $5,000 fine and three years probation.
To put that in perspective, a first-time DUI offense is a Class 1 misdemeanor and comes with a smaller fine.
The city says the code is simply a matter of safety and avoiding a roadside nuisance. But Scottsdale is notorious for trying to ban something that mars the city's aesthetics. Either way, Torgeson and others say this is an issue that cuts to the heart of the fundamental right to freedom of speech guaranteed by the First Amendment of the Constitution. And they're not happy about the latest revision to Scottsdale's code that bars political signs, either.
On March 20, the Scottsdale City Council approved a ban on all temporary signs in the public right of way prohibiting even political campaign signs, says Scottsdale public affairs officer Pat Dodds. That means that signs on street corners are forbidden, but people can still post on their property.
Bob Grossfeld, a political consultant with offices in Scottsdale, says the effect of the sign ordinance will probably be negligible when it comes to campaigning, though it could result in a spike of pre-recorded phone calls and junk mail solicitations. He adds that if anyone challenges the ordinance, it likely won't stand up in court.
"Have they tried in the past? Yeah. Has it been enforceable? No," he says of the Scottsdale City Council. "This is a gang that can't even stop topless dancing and they want to try and stop political signs?"
The sign codes are not popular with the state Legislature. A bill sponsored by Bob Robson, a Chandler Republican, would prohibit the Scottsdale sign ordinance that nabbed Torgeson and force all Arizona cities to allow sign-walkers, regardless of current city code. The measure passed the House this month and passed the Senate Government Committee last week. The current bill deals only with commercial speech, but Robson says he's also concerned about the recent ban on political signs.
Robson says he sponsored the bill after Torgeson contacted him. Both men argue that commercial free speech, though more restricted than regular free speech, is still protected under the law. Obviously, Torgeson is concerned about his business prospects, but both he and Robson say they worry about the implications of the possible ban on political signage.
"It's alarming Scottsdale is also trying to ban political speech," says Robson. "Holding up a car wash sign could conceivably be a violation. Is that really where we want to go? I think we're headed down a dangerous path."
Torgeson, whose company, Jet Media, employs most of the sign-twirlers in the Valley, says his crews have felt the brunt of Scottsdale's ordinance. Torgeson got his ticket January 20.
According to the police report, a Scottsdale police officer saw two men holding signs and walking down the sidewalk. He contacted their supervisor, who called Torgeson.
"Torgeson said he wanted to resolve the issue once and for all," the reporting officer wrote. "Instead of his employees being cited, he said he would drive to my location to hold the sign so he would be the one to deal with the issue in court."
The city offered Torgeson a plea bargain a $278 fine and probation but he rejected it.
"I'm not interested," he says. "I'm not pleading off to a misdemeanor when you are infringing upon my First and 14th Amendment rights. Period. End of story."
Torgeson is awaiting a trial date and says, if found guilty, he will keep appealing. He's asked for an extension on the trial date hoping that if the bill is signed by the governor, Scottsdale will have to drop the charge. He also says he may sue the city in civil court.
"If they're going to push me this hardcore, I have no choice but to sue them civilly," he says.
The problem, Torgeson continues, is Scottsdale's ordinance is designed with aesthetics in mind, without paying attention to the fact that commercial speech is protected by the First Amendment.
The city says it's only looking out for the safety and appearance of the city. Scottsdale says sign-walkers congest sidewalks and distract drivers.
"As a city we have a responsibility to make it as safe as possible," says Dodds. "We are looking at banning all signs in that vein. It is for aesthetic purposes and we are concerned about the number of signs distracting drivers."
Dodds adds that it's the city's right to regulate political speech, so long as it's regulated consistently.
"There's a difference between commercial speech and non commercial speech," he says. "We can also regulate non-commercial speech, but that requires we regulate in a specific manner."
"I can't hold up a sign that says vote for [Arizona Governor Janet] Napolitano? Wait a minute. Since when can't I do that?" he asks. "The way they are rewriting their codes, you won't even be able to hold up a sign that says: 'Please vote today. Please exercise your rights.' "
When it comes to speech in a public forum like on a sidewalk or street corner the U.S. Supreme Court is clear that the restriction must be in place to restrict specific content and there must be an alternate way to communicate the message.
Commercial speech is more limited. According to the Supreme Court, the government can limit signs in public areas if there is a significant governmental interest, as long as the restriction isn't excessive.
Joe Russomanno is a media law professor at Arizona State University's Walter Cronkite School of Journalism and Mass Communication, and an expert on First Amendment case law. He says he's not sure if the court would take Torgeson's side or not.
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"Just because a situation contains the issue of speech doesn't necessarily mean a court would rule for speech interests. Courts weigh and balance the interests the individual's free speech interest versus the government's interest," he says. "Another important consideration is whether the law completely shuts off the ability to communicate the message."
There are other ways to advertise if you have the cash. A full-page ad in a local newspaper can cost thousands of dollars.
"A chain can afford a full-page ad. But Joe Schmoe can't afford that ad. Is there any equalizer here for the little guy?" Torgeson asks.
"Scottsdale has taken the position that a legitimate government interest is the beautification of the city and safety of its citizens," he says. "You could extend that to anything. You could say, 'Fat people are ugly. They're illegal. They can't walk down the sidewalk.'"