If you throw Mario and lawsuit in the same sentence, you might think that Nintendo is going after an unauthorized use of its IP. Instead, we have a game shop owner suing a city because it forced him to take down the inflatable Mario in front of his store. The grounds? It violated his free speech rights.
Last summer, Scott Fisher put the nine-foot-tall Italian plumber outside his little hole-in-the-wall game shop, called Gone Broke Gaming, in Orange Park, Florida. Mario's smiling visage did its job, helping draw attention to the shop and bring in customers. Unfortunately, the city didn't appreciate the placement, and that's when a letter arrived.
Apparently the city told Fisher that he could have an inflatable Santa, Easter Bunny or other holiday-related inflatable, but since Mario was related specifically to his business, he had to remove it. The city threatened him with a $100 a day fine if it wasn't removed. He complied, but wasn't happy about it. He has since gotten help from Institute of Justice, and filed suit against Orange Park for violating his free-speech rights. The base argument is that allowing some inflatables for holiday, but not for business, was unconstitutional.
“The best idea wins,” Fisher told WJXT in Jacksonville. ”There could be three or four video game stores in the local area, but if I happen to have the idea to put a Mario in front of mine and it draws more business, that’s exactly what the First Amendment is there to protect.”
It seems like a stretch of an interpretation, but it will be up to the court to determine whether the suit is full of hot air.