The images a Florida city says only it can use

Imagine you are engaging in the time-honored American tradition of criticizing your local government. You air your complaints on a website you’ve set up to report on city news — and then the city threatens you with legal action and potential jail time, all because some of your comments feature the city’s seal and logos.

That’s what happened to Kyle L’Hommedieu and the local watchdog group he chairs, Take Out The Trash Committee of Cape Coral. 

A Cape Coral ordinance and logo policy prohibit individuals from using the city’s seal or logo without permission. No exceptions. The policy even bans symbols that so much as resemble the city’s logos, including fictional ones. So the city sent a cease-and-desist letter to the watchdog group, threatening to pursue “appropriate legal action” that could result in a fine or jail time. Several other residents who run websites or online community forums reportedly received similar letters.

But that’s not how the First Amendment works. FIRE has stepped in to tell the city that its threats are out of sync with the Constitution. And we’re calling on the city to immediately bring its policies and actions in line with the First Amendment. City ordinances don’t trump the Constitution, and Americans don’t need the government’s permission to speak. Or to use government symbols in that speech, including — if not especially — when criticizing the government itself. That’s why the Supreme Court has upheld the right to burn the American flag or display it upside down with a peace symbol attached.

Cape Coral’s ban is a classic regulation of the content of speech. The Supreme Court has said that content-based speech restrictions are “presumptively unconstitutional.” And as FIRE has explained, the city has no trademark rights in its seal or logos. 

Besides, the watchdog’s website makes it amply clear that it’s a private organization, and nothing about its use of the city’s symbols suggests that the city itself endorsed any of this. 

And yet, under Cape Coral’s overly broad rules, not only is a group like Take Out The Trash barred from using such symbols, even this blog post violates the ordinance because we included images of the logos without the city’s permission!

Cape Coral’s rule forcing private citizens to ask for permission to speak is also a classic example of prior restraint, which the Supreme Court has called the “most serious and the least tolerable infringement on First Amendment rights.” 

On top of all this, the city’s actions raise concerns that it is selectively targeting who to let speak and who to silence. L’Hommedieu says other groups used the logo “for ages” without issue, but once his group used it, they were told to stop. That would amount to viewpoint discrimination, which the Supreme Court has called an “egregious” form of censorship. 

The First Amendment means the government doesn’t get to decide who can criticize it — or which images they use to do so.