There is an interesting constitutional fight brewing in Florida. I have a column out today on the “Let’s Go, Brandon” movement. Marvin Peavy is part of that movement and displayed a banner with the chant (with a pro Trump banner) from his home in Seagrove Beach, Florida. He is now facing a $50 a day fine for violating an ordinance against such banners. He has pledged to continue to fight the enforcement. The question is whether the ordinance is constitutional.
Hanging from Peavy’s home is a banner proclaiming “Trump Won” and another proclaiming “Let’s Go Brandon.” The latter chant is a euphemism for “F— Joe Biden.”
The code states that following signs are “the prohibited in the Route 30-A Scenic Corridor”:
B. Prohibited signs. In addition to the signs prohibited in Section 6.03.00, the following signs
shall be prohibited in the Route 30-A Scenic Corridor:
1. Permanent off-premise outdoor advertising signs (an off-premise sign is any sign
located on property other than that to which the sign relates);
2. Pole signs;
3. Water towers as commercial advertising;
4. Wall murals as commercial advertising;
5. Off-premise signs;
6. Temporary mobile or portable signs;
7. Interior lit single panel plastic or Lexan face;
8. Streamers, feather flags, pennants, ribbons, spinners and other similar devices;
9. Flashing signs;
10. Signs containing reflective elements that sparkle or twinkle in the sunlight;
11. Roof signs;
12. Signs containing moving parts.
The law is notably neutral on content. That is a key distinction given prior Supreme Court rulings like Reed v Town of Gilbert. In that case, the court ruled unanimously that an Arizona ordinance was unconstitutional. Under the ordinance, “ideological signs” and “political signs” were subject to different limitations.
Writing for the Court in Reed, Justice Clarence Thomas stressed that “[g]overnment regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed.”
The content-based regulation triggered “strict scrutiny” analysis requiring that the government must demonstrate that the law has been “narrowly tailored” to serve a “compelling interest.”
Here all signs are limited or banned in this area regardless of their message. What remains, however, is the denial of homeowners to be able to speak politically through signage on their own homes. The city would argue that they can still speak in other ways. Moreover, there is a general exemption in the ordinance for
“Temporary signs for political candidacy, nonprofit organizations, religious institutions and other signs conveying a non-commercial message for a one-time event provided that such signs are removed within 15 days following the campaign, drive, or event.”
Again, there is no content regulation here and political signs are allowed during campaign seasons.
But how about those who want to express political views between elections? Such sentiments are supporting ongoing movements, including “Let’s Go Brandon” which is a criticism of media bias. This is an aesthetic regulation that negates forms of political expression. While the odds may be against Peavy, he may force a reconsideration of such speech rights.