ATLANTA (CN) — The 11th Circuit Court of Appeals heard oral arguments on Tuesday over whether or not a ban on portable signs in Fort Meyers Beach, Florida, unconstitutionally hinders freedom of speech.
Adam Lacroix first challenged the town’s ordinance in December 2020 after he was cited and fined by local law enforcement officers for using signs in a public area to convey religious messages.
Business owners in Fort Meyers Beach told NBC News last year that their customers were being deterred away by Lacroix and other “street preachers” use of graphic anti-abortion imagery on his signs and his messages condemning homosexuality, premarital sex, which he delivered through a loud speaker.
U.S. District Judge Sheri Polster Chappell, a Barack Obama appointee, denied Lacroix’s motion for preliminary injunction in March 2021, because the ban was “content-neutral.”
“His citation depended solely on the type of sign, not on the sign’s underlying message,” Judge Chappell wrote in the order.
On appeal, Lacroix argues that the ordinance is not content-neutral because certain defined “temporary” signs, arguably portable ones, are excluded from the ban based on their content.
Real estate, election, garage sale, special event and other types of signs are not defined as portable signs under the ordinance and do not require a permit.
“The only way to know whether a garage sale sign is a ‘garage sale’ sign is to read it. Once it is determined, by its content, that it is a garage sale sign, then it is allowed, without reference to portability or any of the rest of the definition of ‘portable sign,’” wrote Lacroix’s attorney, David Markese of the American Civil Liberties Union, in a brief to the court.
During oral arguments, the three-judge panel also expressed confusion about the context of the term “portable” as applied by the town’s ordinance.
U.S. Circuit Judge Britt Grant, a Trump appointee, asked why a real estate sign that can be picked up and moved doesn’t fit the ordinance’s definition of a portable sign.
Representing the code compliance officers of Fort Meyers Beach, Selena Gibson argued that these excluded signs have been given their own definitions to decipher them from what they consider to be a portable sign.
“Let’s say you prohibited dogs from the park and then said poodles are not dogs,” argued Judge Grant. “All of the exempt signs are portable but for other reasons are called temporary signs. The distinctions are based on their content.”
According to Gibson, the purpose of the town’s ban is to preserve the safety and aesthetic beauty of the town and that it does not include any restrictions based on pure speech, but rather the sign itself.
U.S. Circuit Judge Stanley Marcus, a Clinton appointee, asked whether he could be cited for holding a “Vote for Trump” or “Vote for Biden” sign in the front yard of his own property, to which Gibson responded she was unsure.
Both Markese and Judge Marcus mentioned a former Supreme Court ruling, City of Ladue v. Gilleo, that found the city's ban on signs displayed on one's property to be unconstitutional and “almost completely foreclosed a venerable means of communication that is both unique and important.”
Gibson argued that this case differs because one’s speech is not completely prohibited due to there being other acceptable ways to convey messages such as a window sign, pamphlets or T-shirts.
Markese asked the court what impact historical movements such as women’s suffrage, Black Lives Matter and others would have had without their use of signs.
“This country has a long, rich history of political discourse and holding signs,” replied Judge Marcus. “It strikes me that this isn’t under intermediate scrutiny, whether content-neutral or not.”
Judge Marcus and Judge Grant were joined on the panel by U.S. Circuit Judge Jill Pryor, an Obama appointee.
While the circuit judges did not signal when they intend to issue a ruling, it seemed likely that the lower court’s decision will be reversed and remanded.
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