Earlier this year, a federal district court in Washington granted the City of Port Orchard’s motion for summary judgment with respect to alleged violations of the First Amendment rights of Engley Diversified, Inc., a billboard company.  Engley sought damages under federal and state law for what it alleged were wrongful denials of billboard permits by the city.

The case, which has a lengthy and twisted procedural history, stems from the submission of six permit applications by Engley to the city in 2010.  Engley sought to construct three billboards in the city.  The city’s code enforcement officer denied the permits, interpreting the sign code as prohibiting them.  Engley appealed to the city’s hearing officer.  During the pendency of the appeal, the city council enacted an ordinance prohibiting all off-premises advertising billboards throughout the city.  The city’s hearing examiner subsequently denied the appeal on the merits, finding that the code enforcement officer’s interpretation of the sign code was not clearly erroneous.  In December 2010, Engley appealed to the city council, Continue Reading City’s Denial of Billboard Permits Does Not Violate First Amendment: Federal Court

The Ten Commandments monument outside of Bloomfield’s city hall. Source: wildhunt.org.

Earlier this month, the Tenth Circuit Court of Appeals ruled that Bloomfield, New Mexico’s installation of a Ten Commandments monument on the lawn in front of city hall violated the Establishment Clause of the First Amendment.

In 2007, upon request of one of its members, the Bloomfield city council approved the placement of the privately-donated monument.  At the time, the city lacked a policy regarding placement of permanent monuments, but it enacted one three months later.  The city’s policy required a statement to be placed on privately-donated stating that the speech was not that of the city but rather of the donor, and also required that such monuments relate to the city’s history and heritage.  After several years of fundraising and another city council approval, the 3,400 pound Ten Commandments monument was placed on the city hall lawn in 2011, and the city held a ceremony—replete with statements by elected officials and religious leaders—to dedicate the monument.  Over the course of the next two years, the city amended the monument policy, and allowed the installation of other monuments on the lawn, including monuments containing the Declaration of Independence, the Gettysburg Address, and the Bill of Rights, but did not advertise its policy of allowing donated monuments.

The federal district court held Continue Reading Installation of Ten Commandments On City Hall Lawn is Government Speech, Violates First Amendment

Since 2015, San Francisco, California, has attempted to regulate the sharing economy by allowing short-term rentals under certain conditions.  These conditions include requirements that the host register the premises with the city, and also that the host demonstrate proof of liability insurance, compliance with local codes, and payment of taxes.  The city later revised the ordinance to prohibit listing of short-term rentals on sites such as Airbnb without prior city registration.  The latter prohibition would impose potential liability on Airbnb, HomeAway, and other short-term rental websites that post listings without prior city registration.

In June 2016, Airbnb and HomeAway filed a lawsuit against San Francisco.  The city responded in August 2016 Continue Reading Court Denies Preliminary Injunction in San Francisco Airbnb Case

On Wednesday, November 9th, to celebrate the end of election season, the American Bar Association’s Section of Real Property, Trusts, and Estates will be holding a free teleconference on post-Reed speech regulation cases.  The dial-in information and a description of the call can be found below, and we hope that our readers will tune in:

Land use and Environmental Group (RP)
3:00 p.m. – 4:00 p.m. CST/4:00 p.m. – 5:00 p.m. EST
Call–in number: 866–646–6488
Participant Passcode: 601 676 1423
Group webpage

Our November call is hosted by the Land Use and Zoning Committee and will feature guest speaker Brian J. Connolly, Esq., of Otten Johnson Robinson Neff & Ragonetti, based in Denver, Colorado.  Brian will discuss key principles in municipal signage regulation, particularly with regard to election and political signs.  He will also cover recent developments in this area of the law in the wake of the Supreme Court’s 2015 decision in Reed v. Gilbert.  Please join us for this fun-filled, bi-partisan, post-election land use discussion!

The advertisement above was proposed to be placed in the Philadelphia airport. Source: ACLU of Pennsylvania.

In August, the Third Circuit Court of Appeals affirmed a lower court decision holding that the Philadelphia airport’s advertising policy was unreasonable in light of the purposes of the advertising space, in violation of the First Amendment.  The airport had previously enacted a policy that prohibited the display of any noncommercial advertising in city-owned advertising space.

The challenge was brought by the National Association for the Advancement of Colored People (NAACP), which wanted to place an advertisement in the airport that read “Welcome to America, home to 5% of the world’s people and 25% of the world’s prisoners.  Let’s build a better America together.  NAACP.org/smartandsafe.”  The city rejected the advertisement.

The appeals court assumed for purposes of argument that the city’s airport advertising space was a limited public forum, but found that the advertising policy was not reasonable.  The city’s purported interests in the prohibition of noncommercial advertising were to raise revenue and to avoid controversy in the airport.  The court found that the prohibition on noncommercial advertising did not reasonably advance either goal, because there was no evidence that the restriction on noncommercial advertising would advance the airport’s revenue goals and the airport was otherwise full of televisions and newsstands that already contained noncommercial speech that could be controversial.

The Third Circuit’s analysis is interesting in several respects.  The court undertook a long, detailed analysis of the litigation burdens in a limited public forum case.  Philadelphia argued that the court should analyze the policy under the rational basis standard of review, where the burden of proof is on the plaintiff to demonstrate that the government’s policy was not rationally related to a legitimate governmental interest.  However, the court, relying on several Supreme Court decisions, found that because the case addressed a fundamental right—the freedom of speech—the burden of proving that the policy was reasonable in light of the purposes of the forum was on the city.  This approach to burdens in limited public forum cases imposes a higher standard on the government to ensure that a regulation is actually reasonable.

The court also went into a lengthy discussion about how the city could meet its burden in this instance.  Again relying on prior Supreme Court precedent, the court found that a government need not back up every conclusion regarding speech in a limited forum with evidence, but some record evidence could be appropriate in helping the city to meet its burden.  Noting the holding in United States v. Kokinda, the court indicated that common sense and historical experience can also underlie a government policy restricting certain speech from a limited public forum.  With respect to the Philadelphia airport advertising policy, the court found that the city had provided neither record evidence nor any common sense rationale for the noncommercial speech prohibition.  In particular, the court focused on the deposition of one of the airport’s managers, who admitted in his deposition that the noncommercial ban did not actually do anything to further the city’s interest in revenue and could not establish how the ban actually helped travelers avoid potentially offensive content.

This decision follows two other recent cases out of Chicago and Fort Wayne that have also held advertising policies in limited public fora to be unreasonable.

N.A.A.C.P. v. City of Philadelphia, 834 F.3d 435 (3d Cir. 2016).

The editor and authors of the Rocky Mountain Sign Law blog are pleased to announce that we will be participating in several upcoming programs on the topics of sign regulation and other free speech and land use matters.  We hope that our readers will have the opportunity to attend or tune into one of these upcoming programs:

  • On Monday, October 24, 2016 at 10:15 a.m. MT, Brian Connolly will, along with Don Elliott of Clarion Associates and Todd Messenger of Fairfield and Woods, P.C., lead a program entitled “Defining Sign & Other Pesky Sign Regulation Problems” at the 2016 annual conference of the Colorado Chapter of the American Planning Association in Colorado Springs, Colorado.
  • On Wednesday, October 26, 2016, Brian Connolly will lead a two-part workshop at the 2016 Planning Michigan Annual Conference in Kalamazoo, Michigan.  The first part of the workshop will be a discussion of Reed v. Town of Gilbert and some of the case law that has come down since the Supreme Court’s 2015 decision.  The second part of the workshop will be a sign code “fix-it” clinic, where attendees will review their own sign codes for content neutrality and other First Amendment problems.
  • On Friday, November 4, 2016, Brian Connolly will be addressing CLE International’s 22nd annual Land Use Law: How-To conference on the topic of sign regulation after Reed v. Town of Gilbert.
  • On Friday, January 6, 2017, Brian Connolly will be speaking on “Update on Zoning and First Amendment Cases Since the Supreme Court’s Ruling on Sign Regulation in Reed v. Town of Gilbert” at the 34th Annual National CLE Conference in Snowmass, Colorado.
  • Mark your calendar for the annual Rocky Mountain Land Use Institute conference at the University of Denver Sturm College of Law March 15-17, 2017.  Brian Connolly will speak on a panel at the conference with Cameron Artigue of Gammage & Burnham about signs, free speech, religious land uses, and much more.

In a case that we reported on last year, the Second Circuit Court of Appeals last week upheld a federal district court’s decision to dismiss a case involving an illuminated peace sign high above the sidewalks of New York City.  Bridget Vosse desired to display a lighted peace sign from her condominium in the Ansonia Building, but New York City prohibits lighted displays more than 40 feet above sidewalk level.  The Second Circuit previously held that New York City’s ban on lighted sign displays more than 40 feet above street level was content neutral.  On remand, the district court found that the regulation served a significant governmental interest in aesthetics, that the regulation was narrowly tailored to that interest, and that the regulation provided ample alternative channels for communication of the information.  The Second Circuit’s opinion affirmed for the same reasons contained in the district court decision.  Despite the plaintiff’s objection that the ban on illuminated signs was not narrowly tailored due to several exceptions, the Second Circuit found that New York City passed the narrow tailoring test because the city was only required to focus on its most pressing concern, not solve all problems at the same time.  With respect to ample alternative channels, the court found that the plaintiff’s reliance on the Supreme Court case of City of Ladue v. Gilleo was misplaced, since Ladue involved a complete ban on all residential signs, while the New York City ban applied only to lighted signs placed at a certain height.

Vosse v. City of New York, ___ Fed. App’x. ___, 2016 WL 6037372 (2d Cir. Oct. 14, 2016).

An inflatable rat in Grand Chute, Wisconsin.
An inflatable rat in Grand Chute, Wisconsin.

In 2014, a labor union decided to protest the practices of an employer in Grand Chute, Wisconsin by placing large inflatables in public right-of-ways.  These inflatables included a giant rat and a large cat wearing a suit and strangling a worker.  Grand Chute’s sign code prohibited the placement of private signs in the right-of-way.  After the town government took enforcement action against the union, a federal district court denied the union’s request for a preliminary injunction and granted summary judgment in favor of the town.

On appeal from the summary judgment order, however, Judge Easterbrook, writing for the panel, questioned whether the case involved a live controversy.  Continue Reading Seventh Circuit: Wisconsin “Rats and Cats” Case May Be Moot

Late last month, the First Circuit Court of Appeals upheld a lower court decision finding that a New Hampshire law prohibiting digital photography of completed election ballots violated the First Amendment.  In the case of Rideout v. Gardner, the court found that the law was not narrowly tailored to a significant governmental interest, and therefore failed intermediate scrutiny review.

The New Hampshire law in question was commonly referred to as the “ballot selfie” law, since it prohibited individuals from taking cell phone photographs of themselves with their completed ballots.  The law was a 21st century update of an earlier state law dating back to the late 1800s Continue Reading First Circuit Rejects New Hampshire “Ballot Selfie” Law

The Halloween “Trump Wall” in West Hartford. Source: Hartford Courant.

Halloween is a time for ghouls, goblins, monsters, and . . . scary sign regulation problems.

An interesting Halloween tradition in West Hartford, Connecticut has taken on a political dimension in advance of the 2016 presidential election.  Matt Warschauer has constructed, as part of his home Halloween display, a “Trump Wall” in his yard, complete with statues of The Donald, Hillary Clinton, and plenty of orange and black accoutrement.

So, the question (for sign regulation geeks such as ourselves) comes to mind:  is the “Trump Wall” a sign?  The West Hartford code defines “sign” as “Any device for visual communication which is used for the purpose of bringing the subject thereof to the attention of the public, including the devices displayed within three feet behind windows and visible from outside of the building. Merchandise or facsimile merchandise shall not be considered a sign.”  Thus, it seems like the Trump Wall could be a sign.  And it seems almost certain that the Trump Wall is a noncommercial sign, since it does not appear to propose a commercial transaction.

The West Hartford sign code goes on to describe special regulations for “holiday decorations” as follows:  “Holiday decorations without commercial advertising” have no limits on maximum sign area, maximum number of signs, location on the property, and do not require a permit.  This provision bodes well for the Trump Wall.

But to avoid further questions about our mental state, we’ll refrain from comment on whether the West Hartford code is content neutral.  Happy Halloween!

Special thanks to Evan Seeman of Robinson & Cole for bringing this story to our attention.