“It’s-a Me, Free Speech!”

According to one Florida town, anyone can display an inflatable Santa Claus, Easter Bunny or unicorn in front of their home or business. But if a business tries to use an inflatable to advertise its products or services, it is breaking the law. This is the problem for Scott Fisher, who had been displaying a 9-foot inflatable Mario—the classic video game character—outside his video game store. Scott had no choice but to take Mario down after the town threatened him with fines of $100 a day, and Scott is now losing customers as a result. In April, IJ filed a lawsuit on behalf of Scott and his store, Gone Broke Gaming.

Scott rents a small, easy-to-miss storefront in Orange Park, Florida—a small suburb of Jacksonville—and wanted to do something to make his store more visible. So last summer, he had the idea to start displaying an inflatable Mario on his private property during his business hours. It worked: Over the next two months, the inflatable Mario led to three times more foot traffic for the store and quickly became a local attraction for both kids and adults.

But not everyone was a fan of the lovable Italian plumber. According to town officials, inflatable signs like Mario are banned under the town’s sign code. It is, however, perfectly legal to display an inflatable if it falls into one of three categories: (1) holiday decorations, (2) seasonal decorations, and (3) “creative ideas” that lack a “commercial message.” Under the last category, the town told Scott he is perfectly free to put up the Mario in his front yard, as the Mario would not be conveying a commercial message in a residential neighborhood. Scott just cannot put up Mario in front of his business, where it would actually be useful.

While courts historically have allowed the government more leeway in restricting commercial speech, recent decisions by the U.S. Supreme Court have suggested that change is afoot and that the days of treating commercial speech like a second-class right are coming to an end.

The case is an important part of IJ’s mission to protect the rights of businesses to communicate with their customers. The ability to let customers know of a sale or even of a store’s existence is often the lifeblood of small, family-owned businesses. Courts have long held that inflatables and other signs are free speech protected by the First Amendment. That means that while the government can impose some restrictions on signs and inflatables, it needs to prove it has a good reason to do so. Here, if the town has long allowed noncommercial inflatables, without any problems, there is no good reason to ban commercial inflatables.

While courts historically have allowed the government more leeway in restricting commercial speech, recent decisions by the U.S. Supreme Court have suggested that change is afoot and that the days of treating commercial speech like a second-class right are coming to an end. This case presents the courts with a perfect opportunity to help decide this issue.

All businesses should have the right to speak to their customers on their own property, and they should not be discriminated against just because their speech may have a business motive. We are confident the courts will agree.

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