Super Mario 2017: Mario vs. City Hall

Florida business owner Scott Fisher has been able to translate his passion for video games into a way to support his wife and kids. Recently, Fisher put up a 9-foot inflatable “Mario” outside his video game store, Gone Broke Gaming, to attract customers.

It worked!

“We put the Mario up and it was literally in no time that the foot traffic tripled,” Fisher said. “We were able to get a lot more customers on the floor, we started seeing more products leave here, which means we’re making more money.”

Fisher said parents would come out with their kids and take pictures in front of the popular video game character. “I got a lot of positive feedback from the community.”

But officials in his town of Orange Park, Florida weren’t happy and forced him take down his inflatable Mario.

Fisher isn’t accepting the city’s dictate. He’s fighting back against city hall, just as Mario fought Donkey Kong and Bowser in the video games that made him famous. Scott has the help of the Institute for Justice (IJ), a public-interest law firm that “litigates to limit the size and scope of government power and to ensure that all Americans have the right to control their own destinies as free and responsible members of society.”

So what’s the town’s problem with Fisher? IJ explains that the town code prohibits businesses from displaying inflatables related to products he sells. If he didn’t take it down, he would be fined $100 every day. “Gone Broke Gaming has seen a decrease in foot traffic ever since.”

But the problem isn’t the inflatable—it’s that it represents something related to products Fisher sells. The code regulates speech—in this case, inflatables—on their content. IJ explains:

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 have nothing to do with his business.

That also means if the inflatable Mario were placed in front of a non-Nintendo-themed ice cream shop or on a neighbor’s lawn, it would be legal under the city’s code.

If that sounds really stupid, that’s because it is. But IJ argues the rule is also unconstitutional. The First Amendment permits some reasonable restrictions of speech. This isn’t reasonable. And in this kind of case, the “code could only survive if the town proved it was absolutely necessary to serve a compelling government interest.”

“Courts have long held that inflatables and other signs are free speech protected by the First Amendment,” the institute argues. “In addition, the government is not allowed to prefer some speech over others.”

The U.S. Supreme Court in 2015 struck down a sign code that also played favorites with certain types of messages in Reed v. Town of Gilbert. Yet despite that ruling, local governments continue to restrict businesses’ speech with unconstitutional sign codes.

Will Scott prevail? Time will tell. In the meantime, this is just another example of overregulation getting in the way of the free enterprise system.

Watch IJ’s video about the case here:

Shohana Weissmann is the Digital Director for Opportunity Lives. You can follow her on Twitter @senatorshoshana.