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11th Circuit strikes down Florida town’s portable sign ban for violating First Amendment

Although the appeals court agreed the ban is content-neutral, it ruled that handheld signs are a rich part of America’s history of freedom of expression.

ATLANTA (CN) — The 11th Circuit Court of Appeals on Tuesday ruled that a Florida town’s ban on portable signs violates the First Amendment after a "street preacher" argued it infringed on his freedom of speech.

Adam Lacroix first challenged the Fort Meyers Beach ordinance in December 2020 after he was cited and fined by local law enforcement officers for using signs on a public sidewalk to convey religious messages.

Tuesday’s ruling reverses the decision by U.S. District Judge Sheri Polster Chappell, an Obama appointee, that denied Lacroix’s motion for preliminary injunction in March 2021, because the ban was “content-neutral."

"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," wrote U.S. Circuit Judge Stanley Marcus, a Clinton appointee.

Judge Marcus was joined by U.S. Circuit Judges Britt Grant, a Trump appointee and Judge Jill Pryor, an Obama appointee.

The ordinance was enacted to "avoid visual blight and confusion" according to the town’s code compliance officers, although several local business owners previously expressed that their customers were being deterred away by Lacroix and other so-called street preachers’ use of graphic anti-abortion imagery on signs and use of a loud speaker to deliver messages condemning homosexuality and premarital sex.

While the ordinance purports to flatly ban all portable signs, one of its sections exempts certain portable signs, as defined by their content, from the permitting process including garage sale signs, real estate signs, incidental signs not exceeding two square feet in area, and temporary signs which include temporary election signs.

In their argument, the town relies on previous precedent in the case, Members of City Council of City of Los Angeles v. Taxpayers for Vincent (1984), where the Supreme Court observed that although an ordinance prohibited posting signs on public property, Los Angeles left open alternative means of communication because the plaintiffs could still speak and distribute literature in public spaces.

The Atlanta-based appeals court, which heard arguments in April, wrote in its opinion Tuesday that this is not the case for Fort Myers Beach, whose residents have "few, if any" effective alternate channels of communication as the ordinance prevents them from holding a sign by hand, putting a sign in the ground if it is taller than 18 inches, displaying signs on a car, or placing any signs in a public place.

"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," Judge Marcus wrote in the 26-page ruling. "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 three-judge panel ruled to preliminarily enjoin only the subsection banning portable signs, while the rest of the ordinance’s prohibitions are unaffected.

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