          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                                                      [DO NOT PUBLISH]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
                     ________________________

                           No. 15-13964
                     ________________________

                 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.

                     ________________________

              Appeal from the United States District Court
                  for the Southern District of Florida
                    ________________________

                            (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.
                                               2
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      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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