38 F.4th 941
11th Cir.2022Background
- Fort Myers Beach enacted a comprehensive sign ordinance (Chapter 30) that categorically prohibits 24 types of signs, including a flat ban on "portable signs," and otherwise requires permits with a list of exempt temporary signs (e.g., real estate, garage sale).
- "Portable sign" is defined as any movable sign not permanently attached to the ground or a building; the ordinance contains no general carve-out for portable signs.
- Adam LaCroix carried a handheld sign with a religious message on a public sidewalk, received a written warning and later a citation under the portable-sign ban, and sued the Town and the citing officers for injunctive, declaratory, and monetary relief (First Amendment, Equal Protection, and Florida RFRA claims).
- The district court denied a preliminary injunction, finding the portable-sign ban content-neutral, narrowly tailored to aesthetics and traffic safety, not an impermissible delegation, and rejecting the Equal Protection challenge.
- The Eleventh Circuit held the ban is content-neutral but likely unconstitutional under intermediate scrutiny because it wholly forecloses a traditional medium of expression and leaves no adequate alternative channels; it reversed the denial of preliminary relief and severed §30-5(18).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing to seek injunctive relief | LaCroix intends to repeat the conduct and faces a credible threat of enforcement after being cited | Citation dismissed but prior citation and warnings do not remove a credible threat | LaCroix has Article III standing (threatened enforcement is imminent) |
| Content neutrality of portable-sign ban | The ordinance is content-based because some exemptions (temporary/real-estate/garage-sale signs) effectively permit portable signs by content | The ban expressly prohibits all portable signs without exceptions; "temporary" signs are defined by temporality and normally attach to ground/structures, not handheld | Ban is content-neutral (flat prohibition applies regardless of message) |
| First Amendment — tailoring and alternative channels | Total ban on portable signs forecloses a venerable, unique medium (handheld placards) and leaves no adequate alternative means to reach intended audiences | Town cites aesthetics/traffic safety and Vincent precedent to justify ban and maintain alternatives (other sign types, literature, speech) | Because the ban entirely forecloses a traditional medium and lacks adequate alternative channels, it likely fails intermediate scrutiny; preliminary injunction warranted against §30-5(18) |
| Unbridled discretion doctrine | Ordinance gives officers excessive discretion (ambiguous definition; enforcement against "leader" of group) | No permitting/licensing scheme here—ban is categorical, leaving no discretion to grant/deny | No unbridled-discretion violation: categorical prohibition does not vest official permitting discretion |
Key Cases Cited
- City of Ladue v. Gilleo, 512 U.S. 43 (1994) (struck down near-total residential sign ban that foreclosed an important medium of political expression)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (time, place, manner test: content-neutral restrictions must be narrowly tailored to significant government interest and leave open ample alternative channels)
- Members of City Council v. Taxpayers for Vincent, 466 U.S. 789 (1984) (upheld content-neutral ban on posting signs on public property as narrowly tailored to prevent visual blight)
- Steffel v. Thompson, 415 U.S. 452 (1974) (threatened enforcement and prior prosecution can create standing to sue)
- Susan B. Anthony List v. Driehaus, 573 U.S. 149 (2014) (clarified injury-in-fact and standing for threatened enforcement of allegedly unconstitutional statutes)
- Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, 11 F.4th 1266 (11th Cir. 2021) (content-neutral expressive-conduct regulations are subject to intermediate scrutiny)
- Pine v. City of West Palm Beach, 762 F.3d 1262 (11th Cir. 2014) (alternative channels must be adequate and meaningful to communicate to intended audience)
- Harnish v. Manatee County, 783 F.2d 1535 (11th Cir. 1986) (upheld a narrow regulatory ban on commercial portable signs)
- Don's Porta Signs, Inc. v. City of Clearwater, 829 F.2d 1051 (11th Cir. 1987) (upheld restrictions when noncommercial speech exemptions existed)
- Messer v. City of Douglasville, 975 F.2d 1505 (11th Cir. 1992) (upheld a narrowly tailored definition targeting commercial/mobile trailer signs)
- Otto v. City of Boca Raton, 981 F.3d 854 (11th Cir. 2020) (First Amendment violations constitute per se irreparable injury for preliminary injunction analysis)