For the week of July 2 - 8, 2003

Banner ban bashes Constitution

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Ketchum and Hailey committed assault and battery on the U.S. Constitution last week. Even as the Fourth of July approached, the First Amendment took a blow from the Wood River Valley.

Last week, the cities boldly decided to control the content of banners hung across their main streets in order to prohibit promotion of unpopular fees for use of popular U.S. Forest Service trails.

They did so at the urging of activists who oppose the fees.

Ketchum took a look at its banner "policy" and declared that the Forest Service banners are prohibited, even though the banners had hung over Main Street or Sun Valley Road at various times last year.

At the same time the city imposed the ban, Mayor Ed Simon expressed his personal opposition to the fees. He called them "insulting."

The Hailey City Council engaged in an equally bold move. In a thinly veiled attempt to outlaw the Forest Service banners, it resolved to limit the content of street banners to "Hailey events."

Both cities and the activists who urged them on failed to consult their pocket constitutions. If they had, they would have been reminded that the First Amendment to the U.S. Constitution protects free speech and the press from government interference.

Whenever a government body gets into the business of controlling content—even in a limited access medium like a public banner—it risks interference with the First Amendment.

Yet, judging by the pile of decisions issued by the U.S. Supreme Court, governments at the local, state and national levels are regularly tempted to control content. The high court has stepped in again and again to prevent the kind of censorship Ketchum and Hailey have decided to impose.

The irony, of course, is that the city governments are trying to restrict the speech of the federal government.

The U.S. Supreme Court has regularly frowned on strict regulation of speech and the press—even commercial speech.

Generally, the court has limited governments to controlling the time, place and manner of speech. It has demanded that restrictions be "content neutral." When confronted with content restrictions, the court’s constitutional antennae start buzzing.

It would have been reasonable for Ketchum and Hailey to control banner placement and size, and to impose exhibition time limits. These restrictions have no bearing on banner content.

But the cities couldn’t resist the powerful temptation to take a whack at the fees they dislike so much.

The Forest Service banners were not deceptive, did not promote illegal behavior, and were not misleading or pornographic. The banners simply notified the public of the fees, which were enacted by Congress and implemented by the Forest Service.

People who refuse to pay the detested fees before parking at nearby trailheads are regularly ticketed and fined.

Many people have called the fees unpalatable, unfair and unnecessary—for good reason. Yet, the level of public resentment cannot justify the cities’ actions.

The actions raise the obvious question: How will the cities determine who will and will not be able to utilize the limited banner space they offer?

For example, if Ketchum citizens complain that the price of an event is too high, is it then not "a special event which is of general interest and benefit to the community" as required by city policy? Will Ketchum refuse to provide space for the event banner?

If someone complains that opera is nothing but infernal caterwauling, will Ketchum deem the Sun Valley Opera not to be of benefit to the community and ban its banner?

If a race supremacy group wants to promote its event in Hailey, will the city again re-tailor its policy to prevent the group from using a banner because city officials disagree with what the group advocates?

It’s a misuse of power for public officials to prevent others from promoting a view that may differ from their own.

If city leaders don’t like forest fees, they can send official objections off to congressmen, senators and the president, They can pound the political podium. What they can’t do is violate the law of the land, the very Constitution they swore to uphold and protect when they took office.

 

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