Victory!

Mario Levels Up, Unlocks Free Speech Achievement

It is tough enough being an entrepreneur. But if no one knows how to find your business, it becomes almost impossible. Because a business with no signs is a sign of no business, a vital part of IJ’s First Amendment work is to strengthen speech protections for small businesses that use signs to advertise and announce their goods and services. Our recent victory in Orange Park, Florida, on behalf of a video game storeowner shows that pro-free-market policies and constitutional rights go hand in hand.

IJ client Scott Fisher, owner of Gone Broke Gaming, knows how hard it is for a new small business to get noticed. Located in a small strip mall off a major four-lane road, Gone Broke Gaming was easy to miss. In fact, Scott often heard from customers who said they could not find the place. Rather than sit idly by, Scott purchased a nine-foot inflatable of beloved video game mascot Mario, which he displayed outside during business hours. 

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Business instantly took off, but so did the interest of regulators. Even though Mario was a cute and safe addition to the community, regulators cited Mario as an “illegal” sign. They said that Mario had to go, even though similarly sized inflatables put out as holiday displays could stay. Although this made no sense, Scott complied. Unsurprisingly, once Mario disappeared, so did Scott’s customers.

The government may not suppress certain messages based on whether officials like what those messages have to say.

Of course, businesses have a constitutional right to use signs and other displays to advertise. That is why, in April 2017, IJ sued Orange Park, arguing that its treatment of Scott and other businesses violated the First Amendment. As the case progressed, officials’ testimony made clear that Mario was prohibited only because Gone Broke Gaming sold video games; if Scott had instead put out an inflatable unicorn or Santa, then he would not have had any trouble. 

Despite much disagreement in First Amendment circles, everyone agrees on one basic point: The government may not suppress certain messages based on whether officials like what those messages have to say. Once Orange Park recognized that this is what its sign code permitted, it threw in the towel. The town not only let Scott start displaying Mario once again, but it also agreed to extensively rewrite its offending sign code.

Thankfully, Orange Park did not have to start from scratch. Due to IJ’s vast experience in litigating sign cases, IJ attorneys keep a list of sign code best practices—ways to maximize freedom of speech while ensuring public health and safety. IJ has distilled these best practices into a series of recommendations for municipalities to adopt. And that is precisely what Orange Park did: Guided by IJ’s model sign code, Orange Park revised large sections of its own sign code, which it finalized in January 2018.

With Mario back out front and customers coming through the door, Scott could not be happier. By working with IJ, Scott secured a win not just for himself, but for all the entrepreneurs in his community. That is precisely the kind of principled, real-world change that IJ will keep fighting for on behalf of entrepreneurs of all stripes.

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