Court: Town Ordinance Likely Violates 1st Amendment


(By Ed Ryan) The United States Court of Appeals for the 11th Circuit has ruled in favor of street preacher Adam Lacroix. In doing so the Court also said the sweeping portable sign ordinance the town has on the books likely violates the 1st Amendment. Here are the details…

In addition to preaching about religion, LaCroix, and other street preachers, have become famously known in the Times Square area of Fort Myers Beach. At times, they also make references to abortion, sex, and other things they consider sins.

The bullhorn preaching was being done so close to restaurants in the square that customers, especially those with little kids, were leaving. The reality of that situation is  there’s nothing the town can really do. Times Square is a public square and LaCroix and friends are exercising their right to free speech. Maybe they can snag them on a noise violation if they are being too loud, but even that’s subjective.

What the town did attempt to get LaCroix on was violating their one-size-fits-all portable sign ordinance. As we reported in January 2021, LaCroix claimed the town was violating his constitutional right to express his religious beliefs by carrying a portable sign. His lawsuit also pointed out that after he was issued the code violation by the town, he called town hall, and convinced someone there to drop the sign violation charge. However, he was unsure if he would be ticketed again in the future for his sign so he commenced with the lawsuit.

In June of 2021, U.S. District Court Judge Sheri Chappell sided with the town, in essence, she said that the total sign ban was ok because it did not discriminate against any content. It was content neutral.

That’s where the Court of Appeals differed, stating “content neutrality does not save the ordinance from First Amendment scrutiny. These signs are a venerable means of communication that is both unique and important.”

But the court went even further in criticizing the town ordinance: “A Fort Myers Beach resident may not hold a sign by hand, he may not put a sign in the ground if it is taller than 18 inches, he may not display his sign on his car, and he cannot place any signs in a public place. Short of a bullhorn and running his voice hoarse, a Fort Myers Beach resident has precious few, if any, alternative channels of communication.”

The Court goes on to say that the government restriction must also allow a speaker the ability to effectively communicate his message to the intended audience in face of the ordinance’s restrictions. “In sharp contrast, a resident of Fort Myers Beach who sought to preach to a group of passing motorists or to communicate that message without physically approaching the listener would be unable to do so anywhere in the town.”

This Court says the town’s total ban on portable signs is likely a violation of free speech. “These signs hold a unique place in America’s proud tradition of free speech. Because the ordinance completely bans this core canvas of expression, it likely violates the First Amendment, both facially and as applied. It does not leave open meaningful, effective alternative channels for communication. The small categories of signs the ordinance permits are no substitute.”

We were told this week that town attorney John Herin “will be collaborating with staff to modify the code in August to address the Court’s concern.

The court remanded the case back to district court in Fort Myers for further review.

Read the full 26-page Court of Appeals ruling HERE.

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