That attracted the attention of attorney Chase Alvord.
"I was riding the bus to work reading The Stranger, and there was a little blurb about the city suing Mighty Movers over the poster ban," 34-year-old Alvord, who normally practices commercial litigation for Tousley Brain Stephens, says. "I always wondered about the constitutionality of the law."
The poster ban struck him as a fundamentally unfair ban on free speech. Out of the blue, he called Mighty Movers and offered to take the case pro bono. Rae said sure. Alvord filed a counterclaim to the city's suit, saying the ordinance was unconstitutional.
On August 5, three years and some 300 unbilled hours later (Alvord says had he gotten paid, the case would have cost about $50,000), the Court of Appeals ruled the portion of the poster ban affecting telephone poles unconstitutional.
Alvord won because our state constitution has more protections for free speech than the federal constitution does. A little history on the poster ban: It was enacted in 1994 by the Seattle City Council at the behest of then-city attorney Mark Sidran. Though the city cited posters as a "workers' safety" issue, most people thought the ban was simply cooked up to remove posters--apparently they were an unsightly blemish. (In its August 5 ruling, the court said "workers' safety" may be a compelling reason to ban or limit postering, but the city hadn't offered any proof of its danger to workers.)
The city's ordinance was pretty much taken from a Los Angeles poster ban written in the 1980s. The city assumed a local ban would be legal because in 1984, the United States Supreme Court (in Los Angeles v. Taxpayers for Vincent) ruled in favor of the Los Angeles poster ban.
At first, even Alvord thought the ban might be legal. "I did a little preliminary research, and I found the Vincent case and thought 'oh crap,'" Alvord says. "But then I started looking into our state constitution and found that there's a little more protection."
In the federal constitution, there only has to be a "significant interest" for the state to limit free speech in public forums. Aesthetics qualify as a significant reason. But Washington's constitution states that the city has to have a compelling interest to restrict speech--simply not liking the look of posters isn't enough. And the restriction has to be narrowly tailored and content-neutral. The State Court of Appeals, in very strong language, found that the poster ban was not "narrowly tailored."
Postering--one of the cheapest forums of communication--is often used by people who don't have a lot of money. The Court of Appeals saw that there was just no good replacement for postering and, with a knock at the city's limp attempt to say they had provided kiosks for postering, wrote: "One cannot say with a straight face that the City's installation of 11 kiosks is an adequate replacement in a city of this size for the multitude of poles that have been used for postering."
Now, the case is in the city's hands. Alvord assumes the city will appeal the decision to the State Supreme Court.
For now, though, telephone poles are back in the public-forum business.
