Martin E. O'Boyle v. The Town of Gulf Stream , 667 F. App'x 767 ( 2016 )

Case: 15-13964 Date Filed: 07/29/2016 Page: 1 of 3
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 15-13964
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D.C. Docket No. 9:14-cv-80317-DMM
MARTIN E. O'BOYLE,
Plaintiff - Appellant,
versus
THE TOWN OF GULF STREAM,
WILLIAM THRASHER,
GARRET WARD,
individually,
Defendants - Appellees.
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Appeal from the United States District Court
for the Southern District of Florida
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(July 29, 2016)
Case: 15-13964 Date Filed: 07/29/2016 Page: 2 of 3
Before WILSON and JULIE CARNES, Circuit Judges, and MOORE, * District
Judge.
PER CURIAM:
Plaintiff-Appellant Martin O’Boyle appeals the district court’s entry of
summary judgment for Defendant-Appellee The Town of Gulf Stream (the Town).
O’Boyle brought, in relevant part, First Amendment and state constitutional claims
against the Town based on the Town’s enforcement of its Sign Code. The district
court issued its order on March 31, 2015.
On June 18, 2015, the Supreme Court issued Reed v. Town of Gilbert, in
which it held that a law that contains a content-based regulation of speech must
survive strict scrutiny to be held constitutional. 576 U.S. ___, 135 S. Ct. 2218,
2226–27 (2015). Facially content-based regulations are those regulations that
pertain to a particular subject matter or define speech in relation to its function or
purpose. See id. at 2227. Facially content-neutral regulations that “cannot be
justified without reference to the content of the regulated speech, or that were
adopted by the government because of disagreement with the message the speech
conveys,” are also considered content-based regulations. See id. (alteration
adopted and internal quotation marks omitted). Both types of content-based
regulations trigger strict scrutiny review. Id.*
Honorable William T. Moore, United States District Judge, for the Southern District of
Georgia, sitting by designation.
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Case: 15-13964 Date Filed: 07/29/2016 Page: 3 of 3
Applying this rule to the municipal sign code before it, the Court explained
that the code was “content based on its face” because it dictated which speech was
permissible based on the type of message a sign conveyed. See id. at 2227.
Additionally, the Court held that the sign code could not survive strict scrutiny
because the code’s distinctions between types of signs were “hopelessly
underinclusive” for purposes of advancing the only governmental interests
asserted—“preserving the Town’s aesthetic appeal and traffic safety.” See id. at
2231–32.
We remand for the district court to decide in the first instance the
constitutionality of the Town’s Sign Code under Reed. The district court must
determine the kind of regulation on speech imposed by the Sign Code and the
constitutionality of that regulation. If the Sign Code is found to be
unconstitutional, then the district court should assess damages and injunctive relief,
as appropriate.
VACATED AND REMANDED.
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