Florida Town’s Portable Sign Ban Shot Down By The 11th Circuit Appeals Court
from the not-how-the-First-Amendment-works dept
In 2010, the town of Fort Myers Beach, Florida passed an ordinance that banned portable signs. According to the town government, this was done to “prevent visual blight and confusion” while simultaneously “protecting the free speech rights” of sign owners/holders.
Not much was made of this ordinance until area man/self-proclaimed “street preacher” Adam Lacroix started displaying his portable signs while, um, street preaching, I guess. Here are some examples of his evangelical outreach.
Homophobic messages and declarations against premarital sex are some examples of what’s being preached on Fort Myers Beach. Restaurant owners said the street preaching is driving customers away.
“That is a picture of a decapitated baby that was aborted,” said Lacroix, describing one of his signs.
Local business owners starting calling the council members and the council members apparently decided it was time to enforce the law. Lacroix — and Lacroix alone — was cited (twice) for violating the anti-portable sign ordinance. When he asked the city council why he was cited, a town official told him it was because he was the “leader” of the group carrying portable signs.
Lacroix sued. The district court sided with the town, stating that the ordinance was “content neutral,” and therefore violated no rights.
It’s hard to believe the ordinance is content neutral, considering the list of exemptions, which includes real estate signs, garage sale signs, and “temporary” signs, like the political candidate signs that pop up in everyone’s yards during election season.
The Eleventh Circuit Court of Appeals agrees with the content neutrality assertion made by the town. But it notes that simply isn’t enough to save this free speech-violating law.
The Town’s complete ban on all portable signs carried in all locations almost surely violates the First Amendment. Although we agree with the district court that the Ordinance’s prohibition on portable signs is content-neutral, the codification still likely fails intermediate scrutiny because it entirely forecloses a venerable form of speech and does not leave open alternative channels of communication.
In essence, the law could be read to ban protests of any type. That’s highly problematic considering criticism of government entities and actions is the essence of First Amendment protections. To allow the law to remain on the books is to allow the town’s government to silence speech it doesn’t like while still maintaining its “content neutral” pretense.
The rich tradition of political lawn signs perhaps is surpassed only by America’s history of marches and rallies dotted with handheld signs and placards of every imaginable description and covering every conceivable political message. Images of demonstrators holding portable signs immediately spring to mind: the March on Washington, the Women’s March, the 2000 presidential election protests in Dade County and Tallahassee, the Black Lives Matter protests in nearly every city in the country, the Tea Party protests, the Women’s Suffrage March, and many more. All of them involved people carrying portable signs. And all were easy to create and customize. If the Town’s prohibition on carrying all portable signs were to stand, all kinds of expressive speech protected by the First Amendment would be barred.
The Appeals Court says the issue is so clear-cut there’s no need to send it back to the lower court to have it reconsider the issue. Instead, the Eleventh Circuit makes the final call, blocking the city from enforcing this part of its sign ordinance.
We preliminarily enjoin only Section 30-5(18)–the subsection banning portable signs–and nothing more. The Ordinance’s other prohibitions and its permitting scheme have independent meaning that remains effective and cohesive even when Section 30-5(18) is removed.
It takes more than content neutrality to remain constitutional, as this town has just learned. And, while the plaintiff may be abrasive and annoying (especially to local business owners), he’s still on the right side of the First Amendment.