The 9th U.S. Circuit Court of Appeals has dared to suggest in finding a ban on portable signs unconstitutional that a city in Washington state put the interests of “the powerful real estate industry” ahead of those of small retailers.

Bagel store owner Dennis Ballen challenged the city of Redmond's sign ordinance after officials told him he could not have an employee stand at an intersection wearing a sign saying, "Fresh Bagels - Now Open." The ordinance did not prohibit all portable signs, exempting those, for example, which advertise real estate.

The city claimed the law promoted vehicle and pedestrian safety and preserved community aesthetics. But the 9th Circuit ruled that the city had not shown how the exempted signs compromised those goals any less than the banned signs.

“[U]biquitous real estate signs, which can turn an inviting sidewalk into an obstacle course challenging even the most dextrous hurdler, are an even greater threat to vehicular and pedestrian safety than the presence of a single [bagel store] employee holding an innocuous sign,” Judge Richard C. Tallman wrote for the court, and

Here, the City has protected outdoor signage displayed by the powerful real estate industry from an Ordinance that unfairly restricts the First Amendment rights of, among others, a lone bagel shop owner.

“The Ordinance impermissibly discriminates against the commercial speech rights of businesses within the City in a content-based manner more extensive than necessary to serve Redmond’s legitimate governmental interests,” Tallman concluded.

The opinion -– which even conservative Judge Jay S. Bybee joined -- affirmed a summary dismissal of the case and should end a three-year legal battle that has turned out to be quite expensive for Redmond taxpayers. The 9th Circuit also upheld a trial judge's award of $165,508 in attorney's fees and costs to Ballen.