Mario, the Classic Video Game Character, Fights City Hall

Scott Fisher and Gone Broke Gaming

Scott has been cultivating his video game business for years. He specializes in classic, vintage and rare games, which he sells to customers all over the world. But the bread and butter of Scott’s business are new games and gaming systems, for which most of his customers are local. Scott initially sold to his customers online and then at a flea market. He quickly outgrew the flea market and in 2015, opened up a small storefront in his hometown of Orange Park—a small suburb of Jacksonville.

Despite Scott’s attempts to get the word out about his new location, however, there were initially few walk-in customers. Gone Broke Gaming is in a small brick building on a busy commercial road, and is lost amidst a long strip of convenience stores and gas stations. When customers did show up, they often remarked how hard it was to find the store. So Scott brainstormed ways to increase his store’s visibility and to make it more welcoming.

Finally, Scott had the perfect idea—why not put out Mario, his favorite video game character? After getting permission from his landlord and neighbors, Scott began to display a 9-foot inflatable Mario in July 2016 directly in front of the store.

It worked. Not only did foot traffic triple, but Mario became a local attraction. People stopped to take photos with Mario and children waved as they passed. New customers often commented that they never knew the store was there until they saw Mario. Scott was excited and relieved that his business was finally taking off, and he put Mario out every day for the rest of the summer.

But that summer is all Mario got. One morning, Scott came to open the store to find a notice from the town on his front door. The notice said that Mario was an illegal “portable sign” under its sign code and threatened Scott with $100 daily fines unless he took it down.

Shocked, Scott took to social media to tell his customers and supporters what happened. Dozens expressed sadness and anger against the town. One loyal customer even protested Orange Park’s draconian actions, marching up and down the sidewalk outside City Hall with a sign saying “SAVE MARIO FROM KOOPA COUNCIL.”

Like his supporters, Scott was upset about the notice of violation. But he was also perplexed. For years he had seen dozens of other inflatables displayed throughout Orange Park. Scott decided to read the town’s sign code to get to the bottom of the mystery.

The Sign Code Bans Mario, while Allowing Many Other Inflatables

What Scott found surprised him. Despite Orange Park’s small size, the town has a very big and very restrictive sign code. The code bans many types of common signs, including “portable signs.” Portable signs are defined as any sign that is “not permanently attached to the ground or structure,” including “banner[s]” and “inflatables[s].” As Mario is an inflatable, it is banned under the code.

But as Scott learned, the town does not consider all inflatables to be “signs” under the sign code. The town allows considers three categories of inflatables to be perfectly acceptable and not subject to regulations: Specifically, holiday decorations, decorations related to one of the four seasons, and artwork. The artwork exemption is particularly broad and covers any inflatable that town officials believe expresses a “creative idea” but does not convey a “commercial message.”

In other words, Gone Broke Gaming—or any other individual or business in the town—is free to display an inflatable Santa Claus or an inflatable pumpkin, because these are holiday and seasonal decorations. Gone Broke Gaming can also display an inflatable unicorn, because this would be a creative idea that does not advertise any of Scott’s products. The town attorney even told Scott that he is totally free to display the inflatable Mario in front of his home, because there, it would not be conveying a commercial message.

But if Gone Broke Gaming puts out an inflatable that is actually relevant to his business and customers, he is breaking the law.

The Town’s Sign Code Violates the First Amendment

The town’s crackdown on Mario is not only unfair, it is also unconstitutional. Inflatables, signs, and other displays are protected speech under the First Amendment. And the government cannot treat some speech better than others, depending on its message and content. Yet that is exactly what Orange Park is doing by allowing some inflatables, but not others, based on what message and purpose town officials think the inflatable is conveying.

In fact, the U.S. Supreme Court has recently said as much. In 2015, the Court struck down a very similar sign code enacted by the town of Gilbert, Arizona in a case called Reed v. Town of Gilbert. ¹

There, the town cracked down on a church for putting out signs informing the public about their religious services. Yet, under the town’s sign code, identical signs concerning political campaigns and other topics were okay.

The Supreme Court decided that this kind of discrimination, based on the speech’s message, triggered the most searching scrutiny possible—called “strict scrutiny.” Under strict scrutiny, the code could only survive if the town proved it was absolutely necessary to serve a compelling government interest. It is very rare that a law would survive strict scrutiny, and Gilbert’s sign code proved no exception. Not only was there no evidence that the church signs hurt the public in any way, but there was no reason to think that the church signs would be any more likely to hurt the public than any other type of sign. The Supreme Court thus found the code was unconstitutional and a violation of the church’s free speech rights.

Orange Park’s sign code is just as unconstitutional. Just like in Reed, the town of Orange Park treats some inflatable displays better than others, based entirely on their content. And just like in Reed, the inflatable Mario does not harm the public in any way, nor does it make sense that the inflatable Mario would somehow be more likely to harm the public than an inflatable pumpkin or unicorn. The town cannot justify this discrimination.

It also does not matter that the inflatable Mario was outside a business. Although commercial speech, such as advertising, has traditionally been given less protection under the First Amendment than noncommercial speech, courts are still wary of any law that treats commercial speech unfairly. In fact, in a recent case, Sorrell v. IMS, ² the Supreme Court strongly signaled that the days of treating commercial speech like a second-class citizen are coming to an end. In Sorrell, the Court addressed a state law that banned the sale, disclosure and use of certain medical data for marketing purposes, but allowed it for educational purposes. As the Court found, commercial speech is a valuable part of our society and the government needed to satisfy a heavy burden in order to ban that speech. Because the government could not meet that burden, the ban was held unconstitutional.

That same principle holds true here: If the town allows some inflatables, it should allow them all, regardless of their message or motive. Because the town of Orange Park cannot justify treating these inflatables differently, its ban on inflatables, including the inflatable Mario, should be struck down as a violation of the First Amendment.  That’s why Scott and Gone Broke Gaming have teamed up with IJ to vindicate their right to display Mario.

The Plaintiffs

The Plaintiffs are Scott Fisher and his business, North Florida Quality Goods and Services LLC, doing business under the name “Gone Broke Gaming.” Scott and Gone Broke Gaming want just two things: (1) a court declaration that the town’s sign code is violating their First Amendment rights and (2) a court order preventing the town from fining or otherwise prosecuting Scott and Gone Broke Gaming for displaying the inflatable Mario.

The Defendant

The Defendant is the town of Orange Park, Florida.

The Litigation Team

The lead attorney on this case is Institute for Justice Attorney Erica Smith. Also on the team is Senior Attorney Robert Frommer.

About the Institute for Justice

The Institute for Justice (IJ) is the national law firm for liberty and is the leading advocate for Americans’ right to speak out using signs.

IJ has challenged restrictive sign codes in dozens of cities across the country. For example, IJ has successfully challenged sign codes restricting a protest sign in Norfolk, Virginia, ³ a gym’s portable sign in Sacramento, ⁴ a nonprofit’s mural in St. Louis, Missouri; a bagel store’s sandwich board sign in Redmond, Washington, ⁵ and an individual’s for-sale sign on his car in Glendale, Ohio. ⁶