Our colleagues and friends Dan Mandelker, John Baker, and Rick Crawford have recently co-authored a new book, the fourth edition of Street Graphics and the Law, published by the American Planning Association.  The new edition of Street Graphics is an update to one of the most important resources for local governments on the science, planning, and law of sign regulation.  Professor Mandelker authored a blog post about some of the highlights of the new book here, and the new book can be found here.

Earlier this month, the 11th Circuit considered the constitutionality of an ordinance enacted in Sandy Springs, Georgia, which criminalizes the distribution of sexual devices.  Although not a First Amendment case, we’re including a post on the case because the decision relates to a First Amendment-protected land use—adult businesses—and introduces an alternative constitutional theory for challenging regulation of adult businesses.

Appellants in the case claimed that the Sandy Springs ordinance violated their substantive due process right to privacy.  Appellants included an adult bookstore that sells sexually explicit materials and items, including sexual devices, and a woman suffering from multiple sclerosis who uses sexual devices with her husband to facilitate intimacy.  Although expressing sympathy with appellants’ claims, the court held that it could not break from a 2004 11th Circuit decision that held that privacy-based rights, including the right to buy, sell and use sexual devices, were not fundamental rights under the Constitution, and affirmed the district court’s dismissal of the case.

Appellants encouraged the court to reconsider its analysis of privacy-based rights based on the Supreme Court’s recent decisions in United States v. Windsor, 133 S. Ct. 2675, 570 U.S. 12 (2013) and Obergefell v. Hodges, 135 S. Ct. 2071, 576 U.S. ___ (2015).  Appellants contended that these decisions clarified the existence of a fundamental right to engage in acts of private, consensual sexual intimacy.  However, even though the court characterized its 2004 decision as “wrong,” the court found it could not overrule its prior holding absent the Supreme Court’s express recognition of privacy as a fundamental right.

Although circuit precedent prevented the 11th Circuit from recognizing adult businesses as having protection under the due process clause, due process protection of privacy exists in other circuits and may not be far off in the 11th Circuit (the court actually encouraged the appellants to have their decision reviewed en banc).  If privacy rights are afforded fundamental rights status under the Due Process Clause, land use and zoning restrictions related to adult businesses may be challenged based on more than First Amendment claims.  Whereas local governments may defeat First Amendment challenges using the “secondary effects doctrine,” which permits some burden on speech when the regulation targets the negative effects of speech and not the speech itself, claims that land use and zoning restrictions violate the Due Process Clause will require a heightened standard of review that could prove difficult for some local governments to withstand.

Flanigan’s Enterprises, Inc. v. City of Sandy Springs, No. 14-15499, 2016 WL 4088731 (11th Cir., Aug. 2, 2016).

Last Friday, a federal district court in Florida found that the City of Tampa’s restriction on requests for donation or payment—aimed at preventing panhandling and solicitation on city streets—violated the First Amendment.  The court’s decision follows on several other decisions around the country that have invalidated bans on solicitation of donations on the grounds that such bans are not content neutral. Continue Reading Tampa Panhandling Ban Found Unconstitutional

A member of the street ministry of the Seminole Baptist Church, the plaintiff in the case. Source: Seminole Baptist Church
A member of the street ministry of the Seminole Baptist Church, the plaintiff in the case. Source: Seminole Baptist Church

The plaintiff in Williamson v. City of Foley was a Baptist pastor whose congregation periodically engaged in evangelistic street ministry by preaching and witnessing orally and with signs on public sidewalks at the intersection of two major highways. Continue Reading Evidence of Less-Restrictive Alternatives Do Not (Necessarily) Violate the Narrow Tailoring Requirement

Without including any facts or analysis in its opinion, the Eleventh Circuit vacated and remanded a March 31, 2015, decision by the District Court for the Southern District of Florida.  According to the Eleventh Circuit, the district court must determine whether, under the June 18, 2015, Reed v. Town of Gilbert decision, the Town of Gulf Stream’s sign code constitutes either a facially content-based regulation, or a facially content-neutral regulation 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,” and therefore triggers strict scrutiny review.

O’Boyle v. Town of Gulf Stream, No. 15-13964, 2016 WL 4056394 (11th Cir. July 26, 2016)

A mobile billboard in Miami, Florida. Source: mobilebillboardmiami.com.

This post was authored by Otten Johnson summer law clerk Alex Gano.  Alex is a rising third-year law student at the University of Colorado Law School.

Earlier this month, the Ninth Circuit Court of Appeals in Lone Star Security v. City of Los Angeles revisited an earlier opinion regarding the content neutrality of ordinances in five Southern California cities that banned mobile billboard advertising.  In upholding the municipal bans a second time, the court held that the U.S. Supreme Court’s decision in Reed v. Town of Gilbert did not create heightened judicial scrutiny for restrictions on the “manner” of advertising. Continue Reading Ninth Circuit: Local Restrictions on “Mobile Advertising” Still Content Neutral post-Reed

A gated community in Puerto Rico. Source: latinamericacurrentevents.com

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Recently, the U.S. District Court for the District of Puerto Rico, in Watchtower Bible Tract Society of New York v. Municipality of Ponce, decided that streets built and maintained by a small, gated community and never deeded to the local municipality, were a public forum.  The court prohibited the neighborhood and its guards from excluding the plaintiffs, Jehovah’s Witnesses, and ordered the municipality to affirmatively ensure that the plaintiffs’ constitutional rights would be protected. Continue Reading In Puerto Rico, Private Roads are a Public Forum

Last week, a court in Missouri ruled that a village’s ordinance prohibiting commercial activity—including commercial photography—in a park was a constitutional restriction on speech.

The Village of Twin Oaks, Missouri had an ordinance that prohibited the use of a village park for commercial purposes.  The park was posted with signage that read:  “No commercial activity, including commercial photographers.”  The stated purpose for the village’s regulation was to ensure public safety and fair use of the park.  Josephine Havlak was a professional photographer who takes pictures for wedding and portrait purposes.  After Havlak filed suit claiming that the ordinance was a content based and unconstitutional restriction on speech, the village modified the ordinance to allow commercial photographers to use the park in exchange for a $100 permit fee. Continue Reading Photography May Be Protected Speech, But Village’s Restriction on Park Photography Stands

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Two weeks ago, a federal court in California dismissed a plaintiff’s claim that casino gaming was a First Amendment-protected activity.

Wared Alfarah, the plaintiff in this case, ran a retail business selling e-cigarette products.  To encourage customers to linger around his store, Mr. Alfarah offered pay-to-play games where the player tried to stop a computer cursor on a specific bar in a series of rotating bars.  If done correctly, the player won a random amount of prize money.  Although the location of the bars was randomized, the player’s “skill” allegedly determined his success. Continue Reading Federal Court: Gaming is Not Protected Speech

Above, an advertisement that Women’s Health Link wished to place on the side of Citilink buses in Fort Wayne. Source: Alliance Defending Freedom.

In a case that we reported on earlier this year, last month, the Seventh Circuit Court of Appeals reversed an Indiana district court’s grant of summary judgment to the Fort Wayne public transit system, Citilink, holding that the transit company’s rejection of an advertisement for a healthcare organization was unreasonable in light of Citilink’s advertising policy. Continue Reading Seventh Circuit Finds Fort Wayne Bus Advertising Policy Unreasonable