Don's Porta Signs, Inc. v. City of Clearwater

Background

A municipal rule that effectively banned portable signs was challenged by the person or group that had been affected. A federal trial court found the rule violated the First Amendment, concluding the rule did not directly advance the city’s conceded interest in esthetics and that less intrusive measures could serve that interest, citing Central Hudson. The Court of Appeals for the Eleventh Circuit reversed that judgment, and the Supreme Court declined to take the case.

Reasoning

The central question presented was whether the Bose standard requires appellate courts to independently reexamine the entire trial record when a trial court has found a government restriction on speech to be unconstitutional. The Eleventh Circuit read Bose as mandating independent review and therefore declined to apply the usual "clearly erroneous" test to the trial court’s factual findings. The Fifth Circuit has agreed with that approach in a similar case, while the Ninth and Seventh Circuits have held that de novo review is required only when a trial court rejects a First Amendment claim, and that findings supporting a trial court’s ruling of an unconstitutional restriction should be reviewed only for clear error.

Real world impact

Because the Supreme Court denied review, the split among federal appeals courts remains unresolved. That means litigants and local governments challenging or defending speech-related rules, like sign ordinances, may face different standards depending on the circuit. The denial leaves appellate courts free to continue applying conflicting review rules.

Dissents or concurrances

Justice White dissented, arguing he would grant review to resolve the conflict among the Circuits over the proper standard of appellate review in First Amendment fact-finding cases.