The ACLU of Florida on Thursday sued the city of Key West on behalf of a local couple who were threatened with fines if they didn’t remove the rainbow-colored fence pickets they had painted on 12 slats of wood at their home in Old Town, six on the side fence and six on the front.
The lawsuit alleges the city violated the First Amendment rights of Linda Bagley-Sohn and Nicole “Coley” Sohn by selectively enforcing its code against their rainbow-painted fence display and failing to enforce other violations of the city’s historic guidelines in Old Town.
“Plaintiffs’ rainbow picket display was an expression subject to First Amendment protection,” the lawsuit states. “The city selectively and arbitrarily enforced its Historic District regulations against plaintiffs because of the communicative content and viewpoint of their rainbow display. The city has not enforced its historic district regulations against others similarly situated whose violations have different communicative content and viewpoint from Plaintiffs. The city has no legitimate, content-neutral justification for selectively punishing plaintiffs for their expression.”
The lawsuit asks the court to declare the city’s enforcement of its historic district regulations against the plaintiffs’ rainbow picket display unconstitutional; and to stop the city from enforcing those regulations. The suit seeks only $20 in financial damages, for the cost of paint.
The 14-page legal complaint includes several photos of wooden fences in the historic district that are painted colors other than the white, which the historic guidelines require.
“The First Amendment categorically forbids the city’s content- and viewpoint-based restrictions on the plaintiffs, and therefore the city’s actions to enforce the historic district regulations against the plaintiffs violated their rights under the First and Fourteenth Amendments,” the lawsuit states.
The complaint details the origins of Key West’s rainbow-painted fences that appeared in response to the city acceding to the governor’s and state of Florida’s demands that Key West’s rainbow crosswalks be removed from the intersection of Duval and Petronia streets.
“For many years, Key West has been known as a welcoming and inclusive community for all individuals, and particularly so for the LGBTQ+ community,’ the lawsuit states. “To celebrate this fact, over a decade ago the city of Key West installed rainbow crosswalks at an intersection along iconic Duval Street. But last year Gov. Ron DeSantis’s administration mandated that all localities statewide remove colorful markings and artwork on crosswalks and sidewalks. “Acceding to that demand, the city of Key West painted over its rainbow crosswalks under cover of darkness.
“To protest the crosswalks’ removal, plaintiffs Nicole “Coley” Sohn and Linda Bagley-Sohn painted 12 of the pickets on their home’s picket fence in rainbow colors. Inspired by the plaintiffs, many other Key West residents also painted their picket fences in rainbow colors to join the protest. The city then censored the plaintiffs’ colorful and peaceful protest by selectively enforcing its ordinance code against them, based on the content and viewpoint of their expression.
“The city’s selective enforcement of its ordinances against the plaintiffs’ picket protest constitutes a content- and viewpoint-based restriction of the plaintiffs’ constitutionally protected free expression. Plaintiffs bring this suit to vindicate their First Amendment rights and reaffirm Key West as the inclusive and neighborly place they know it to be.”
The lawsuit also describes the Sohns’ repeated attempts to apply for a permit from the city’s Historic Architecture Review Commission (HARC).
“We tried to go through the right channels. We applied and applied,” Coley Sohn told the Keys Weekly Friday morning. “And it looked like the HARC commissioners were moving in the right direction, trying to work with people, coming up with guidelines that allowed the painted pickets for 18 months or so, and limiting the number of pickets that could be painted. But then the city attorney put a stop to it.
When speaking at a December HARC meeting, Coley Sohn said, “I’m all for preservation, but it’s not about freezing a city in time. Key West’s history of inclusion is worth preserving as much as the architecture.”
“This was a peaceful protest that the city is trying to silence,” she said. “We love Key West and this community, and we support HARC,” she said. “But we’re not going away. This is too important. It’s completely selective and discriminatory.”
Mayor Dee Dee Henriquez and Commissioner Donie Lee told the Keys Weekly on Thursday evening, after the lawsuit was filed that morning, that they had not yet been made aware of it, with Lee adding that as a city commissioner, he can’t comment on pending litigation.
Commissioner Monica Haskell did not address the lawsuit specifically, when she told the Keys Weekly on Friday afternoon, “The state’s heavy-handed mandates have put everyone scrambling to do the right thing. Unfortunately, not everyone agrees with what the right thing is to do.”
