In a recent order on cross motions for summary judgment, a federal district court in Florida reiterated the high bar to upholding prior restraints on speech.  Plaintiffs Florida Beach Advertising and its owner and operator David Duvernay were cited on three occasions for violating a section of the City of Treasure Island’s code that requires any person to obtain a license before displaying a sign, banner, or advertisement.  They brought claims that the code violated the First Amendment—facially and as applied—and was preempted by state statute.  Although the plaintiffs challenged the entire code, the court found they had standing only to challenge the specific section they were cited for violating.  While the court quickly ruled for the City on the preemption challenge, it provided more robust analysis of the First Amendment claims.

Events leading up to the action are not entirely clear, with some details debated by the parties.  In short, Plaintiffs operate a boat called the “Get Lit,” which features a digital sign for displaying messages and advertising.  They had planned to participate in a Veterans’ Day Boat Parade, displaying a message on the boat’s digital sign.  However, after being cited for displaying a sign without a license, the plaintiffs posted on Facebook that they would no longer be participating in the parade due to their inability to obtain the necessary license or a waiver of the requirement.  A City official then apologized and stated his commitment to get the plaintiffs the license.  But at the next commission meeting, another official stated that while he initially intended to issue a license, he could no longer recommend doing so because of the public backlash against the City on Facebook.  By unanimous vote, the commission denied the license.  The plaintiffs proceeded to participate in the parade, displaying a digital “Thank You Veterans” sign on their boat, and were the only participants cited—in that year and in the history of the parade—for violating the license requirement.

The court easily found that the section facially violated the First Amendment.  By the City’s own admission, the section lacks any specific criteria or time limitation for reviewing license applications.  The City pointed to the existence of variance criteria elsewhere in the code, but the court found them insufficient: not only do they appear irrelevant to the issues presented by sign license applications, they also give officials unbridled discretion in determining whether an undue hardship exists and a variance would be in the public interest.  As it is well-established that laws creating prior restraints on speech require the time-limited application of narrow, objective, and definite standards, the court struck the section as unconstitutional.

However, the plaintiffs did not win summary judgment on their as-applied First Amendment challenge, which the court interpreted as a class of one equal protection claim.  First, they provided neither an identical application to compare to their denied one nor proof that the City had previously granted a waiver of the requirement.  Second, they failed to provide a sufficiently identical comparator parade participant in support of their allegation that the City singled them out for enforcement.  As such, the court determined that there remain issues of material fact.

Although a decision on the as-applied First Amendment challenge is outstanding, the court made clear that any speech-related licensing requirements must meet constitutional requirements to control official discretion.

Florida Beach Advertising, LLC v. City of Treasure Island, 2021 WL 50466 (M.D. Fla. Jan. 6, 2021).