Washington Supreme Court Upholds Commercial Speech Rights

In Kitsap County v. Mattress Outlet/Kevin Gould, a 5-4 majority of the Washington Supreme Court has upheld the right of a store to advertise its business offsite, finding a county ordinance an unconstitutional restriction of commercial speech. At issue was Kitsap County’s ordinance, intended to prevent distractions of drivers and limit “visual blight.” “One of Mattress Outlet’s advertising techniques is to pay independent contractors, who wear yellow, oversized raincoats that display Mattress Outlet’s name, address, and telephone number, to stand on public sidewalks and wave to passersby. Mattress Outlet also sells these raincoats at its stores, along with hats, t-shirts, and other items advertising Mattress Outlet. On October 24, 2001, a Kitsap County Code Enforcement Officer cited Mattress Outlet for using raincoat-clad workers as “an offsite sign without a permit” in violation of KCC 17.445.010 and 17.445.070(C).” The majority examined the county’s ordinance under the Central Hudson test and found that it “total ban of offsite advertising under KCC 17.445.070(C) does not reflect any method of narrowly tailoring the restriction to meet the specific goals of increased safety and aesthetics.  For example, if traffic safety is a concern, then the county can designate restrictions as to place and time, without completely prohibiting this method of advertising.  At a minimum, the county restrictions could be narrowly tailored so as to accommodate the reasonable use of apparel displays.  As it is, the offsite advertising ban burdens substantially more speech than is necessary to further the government’s interests. The county has failed to demonstrate that a total ban of offsite advertising is a reasonable method of achieving its goals.  Therefore, we hold that KCC 17.445.070(C) fails the fourth prong of the Central Hudson test.” The dissent, however, contended that the majority misapplied the Central Hudson test to this case.