The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
[UPDATE 10/26/22: The Punda Gorda Sun (Elaine Allen-Emrich) reported yesterday that the city will not appeal the decision; thanks to commenter MarkBoyle for noting this.]
The Punta Gorda (Fla.) Code provides, in relevant part, that no-one may "erect, display, [or] wear"
[a]ny sign which contains obscene language or graphics; and any sign containing fighting words or indecent speech which is legible from any public right-of-way or within any public space, and which can potentially be viewed by children under the age of 17. This provision includes signs or flags in or on any vehicle, vessel or on any apparel and accoutrements.
Sheets was fined $2500 for
wearing a t-shirt with the words "Fuck Policing 4 Profit," holding a flag that read "Fuck Trump," and holding a sign … with a photograph of the Punta Gorda City Council on which the words "R Cunts" was written[;] …
wearing a t-shirt with the words "Fuck the Police" and holding a flag that read "Fuck Biden"[;] …
wearing a t-shirt bearing the words "Fuck the Police"[;] …
wearing a t-shirt bearing the words "Fuck Policing For Profit" and holding a flag that read "Fuck Biden."
Unconstitutional, said Judge Geoffrey Gentile in Sheets v. City of Punta Gorda (filed Sept. 26, 2022):
[T]he Punta Gorda ordinance imposes content-based restrictions on speech and those provisions can stand only if they survive strict scrutiny. Strict scrutiny requires Punta Gorda to prove that the restriction furthers a compelling interest and is narrowly tailored to achieve that interest.
In this case Punta Gorda argues only one compelling governmental interest: protection of children, specifically, only children that can read….
At the upper end of the age range, Punta Gorda has not shown that protection of teenagers from widely used words, which have extensive non-sexual usage … protects that age range. There is a much more limited set of children that can be protected than the ordinance covers.
The ordinance is under inclusive and over inclusive. The ordinance prohibits speech that the record reflects was never seen by children. Punta Gorda claims that the limitation to places where children under 17 may see the signs is a narrow limitation. It is not. Children may be present anywhere in Punta Gorda and therefore that term is no limitation at all. The ordinance does not prohibit use of verbal indecency and that is a means of communication that many more children could understand….
Only last year the U.S. Supreme Court ruled that children have the right to freedom of speech, which includes a child publicly using vulgar language. Mahanoy Area School District v. B.L. (2021). In that case, a minor, B. L. posted an image which showed B. L. and a friend with middle fingers raised; it bore the caption: "Fuck school fuck softball fuck cheer fuck everything." The school suspended her from the cheerleading squad and she challenged it [ultimately successfully] all the way to the U.S. Supreme Court….
The court concludes that the ordinance is unconstitutional if applied to the very children Punta Gorda is seeking to protect. How can it be applied to Sheets?
Thanks to Alan Beck for the pointer.