Institute for Justice · April 6, 2017

Instead of fighting to save a princess in another castle, one family-owned video game store is now fighting to save their constitutional rights. Video game store owner Scott Fisher has teamed up with the Institute for Justice (IJ) and filed a federal, First Amendment lawsuit today against the Jacksonville suburb of Orange Park, Florida.

It all started when Scott opened his store, Gone Broke Gaming, to sell popular but often hard-to-find video games. To bring in more customers to his easy-to-miss storefront, Scott displayed a 9-foot inflatable Mario—the classic video game character—with great success. Over the next two months, Mario not only helped customers find the small store but also quickly became a local attraction for kids and adults alike.

But the Orange Park sign code bans Scott from displaying an inflatable that relates to his business. Town officials have demanded that Scott take it down or be fined $100 a day, so Scott had no choice but to deflate Mario. Gone Broke Gaming has seen a decrease in foot traffic ever since.

“The inflatable Mario is critical to the success of my business,” said Scott. “He helps people find my store, and the community loves him. My local government should be encouraging my business, not trying to ruin it over a smart business decision.”

But Orange Park does not ban all inflatables. Instead, the town discriminates against different displays based on their subject matter and message. It is perfectly legal to display an inflatable if it falls into one of these favored categories: (1) holiday decorations, (2) seasonal decorations, and (3) “creative idea[s]” that lack a “commercial message.” This means Scott can display an inflatable Santa, pumpkin, or unicorn because they are unrelated to the products he sells. It also means a non-gaming store could legally display Mario right next door to Scott’s video game store.

“Orange Park is playing the role of a real-life Bowser,” said IJ Attorney Erica Smith. “The town is cracking down on a fun display that is also helping a local business succeed. Not only are the Town’s actions bad policy, they are blatantly unconstitutional.”

The lawsuit argues the town is discriminating against the free speech of the video game store by allowing some inflatables but not Mario in front of Gone Broke Gaming. In its 2015 decision, Reed v. Town of Gilbert, the U.S. Supreme Court ruled it was unconstitutional for the government to regulate certain displays differently, based entirely on their content. Just like the church signs in Gilbert, the inflatable Mario does not harm the public in any way and deserves no less protection than an inflatable pumpkin or unicorn.

“The First Amendment does not play favorites. It protects everyone’s right to speak out, including small businesses,” added IJ Senior Attorney Robert Frommer. “We are confident that the courts will reaffirm Scott’s right to power up his business with Mario.”