In July, a federal court in Wisconsin granted a preliminary injunction to Candy Lab, the maker of the popular “Pokemon Go” game, after Milwaukee County required the company to obtain a permit in order for players of its games to play in the county’s parks.

In 2016, Candy Lab released Pokemon Go, which allows players to use smartphones with location-sensing technology and “augmented reality”—whereby the phone displays an image suggesting that the image is physically present in front of the user—to play the game in a particular geolocation.  The runaway success of the game meant that many public parks became popular with players, including Milwaukee County’s Lake Park.  In summer 2016, the county observed large numbers of people playing the game in the park, and reported increases in litter, trampling of grass and flowers, players staying past the park’s closing hours. The park additionally had inadequate bathrooms, unauthorized vending, parking problems, and traffic congestion as a result of the game.  The county responded with an ordinance prohibiting virtual- and augmented-reality games in the county’s parks, except with a permit.  In 2017, Candy Lab released another augmented-reality game, Texas Rope ‘Em, but refused to obtain a permit from the county.  Candy Lab then sued the county, claiming a violation of its free speech rights. Continue Reading Court Grants Preliminary Injunction in Milwaukee “Texas Rope ‘Em” Case

The plaza in front of Pinnacle Bank Arena. Source: University of Nebraska.

Last week, a federal appeals court upheld an order granting summary judgment to the City of Lincoln, Nebraska in a case involving a prohibition on leafleting activity outside of the city’s basketball arena.  In the decision, the court determined that the plaza outside of the arena was a nonpublic forum, and that the city’s regulation met the basic requirement of reasonableness for regulations of speech in a nonpublic forum.

In 2010, Lincoln and the University of Nebraska created a joint agency to redevelop a portion of the city and to construct a new athletic arena for the university’s sports teams.  In connection with the redevelopment, new pedestrian areas were constructed, including a plaza immediately outside of the arena.  The city entered into a private management agreement allowing a concessionaire to manage and operate the arena and surrounding property.  After the arena opened in 2013, the concessionaire, SMG, adopted a policy establishing the plaza outside of the arena as a nonpublic forum, and specifically reserved use of the plaza for tenants of the arena.  Other pedestrian areas outside of the plaza were designated for public uses. Continue Reading Eighth Circuit Upholds Lincoln, Nebraska Anti-Leaflet Policy

One of the signs in question in the Baldwin Park litigation. Source: The Legal Lens.

Last month, a federal district court in California ruled that the City of Baldwin Park’s sign ordinance was likely unconstitutional, even after the city amended the ordinance amidst a legal challenge.  The code allowed property owners additional signage and flag displays during certain times of the year, including election season and around holidays, respectively, and allowed businesses to display additional signage during promotional events.

The case originated when community members, including individuals and business owners, displayed signs alleging corruption by a local politician.  Baldwin Park enforced its code, which prohibited the signs in question.  The individuals and business owners filed a First Amendment challenge.  The city then amended its code, and the amended code is now in question. Continue Reading Court Grants Motion for Preliminary Injunction in California Sign Code Case

We interrupt our regularly scheduled programming to alert our readers in the local government world to an upcoming webinar that may be of interest:

On September 11, 2017, the Planning and Law Division of the American Planning Association is hosting the webinar “Solar Planning 101: Opportunities & Obstacles.”  Attendees will learn how to integrate solar energy into planning, zoning, and historic preservation processes from two law professors who specialize in these issues. The program will highlight Hartford, Connecticut, a DOE SolSmart Gold community, which has dramatically reduced barriers to solar and serves as a model for other cities.

Speakers include Troy Rule, Joseph Feller Memorial Chair in Law & Sustainability at Sandra Day O’Connor College of Law, Arizona State University and Sara Bronin, Thomas F. Gallivan Chair in Real Property Law and Faculty Director, Center for Energy and Environmental Law at the University of Connecticut School of Law.

Monday, September 11, 2017

11:00 a.m. – 12:30 p.m. EDT

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

Day laborers in Oyster Bay. Source: New York Times.

On Tuesday, the Second Circuit Court of Appeals ruled that the Town of Oyster Bay, New York’s prohibition on motor vehicle solicitation of employment violated the First Amendment.  The appellate court’s ruling affirms an earlier district court ruling that found similarly.  The plaintiffs in the case were two groups that advocate for the interests of day laborers.

Oyster Bay enacted an ordinance in 2009 that read, in relevant part, “It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.”  Oyster Bay’s ordinance was ostensibly an effort to curb day laborer solicitation. Continue Reading Second Circuit Affirms District Court Injunction Against Oyster Bay Solicitation Ordinance

We are pleased to announce the publication of a new book, Local Government, Land Use, and the First Amendment: Protecting Free Speech and Expression.  The book is published by ABA Publishing, and was edited by the editor of Rocky Mountain Sign Law, Brian Connolly.  Twelve authors contributed to the book, which contains chapters on everything from signs, religious land uses, adult businesses, the public forum doctrine, and government speech.

More about the new book is available from ABA:

This book is an re-mastered, retooled version of the ABA publication “Protecting Free Speech and Expression: The First Amendment and Land Use Law” which was published by the ABA.

The book contains some theoretical discussion of First Amendment law as it pertains to land use issues (e.g. sign and billboard regulation, regulation of artwork and aesthetics, regulation of religious land uses, regulation of adult businesses, etc.), but also provides information which will be relevant to practitioners, and will include some regulatory strategies and case studies. In order to strategically illustrate their points, the authors included cases as source material.

The book is available for purchase from ABA and will also be available on Amazon.

Twin Oaks Park, the site of the photography dispute. Source: STLtoday.com

Last year, we reported on a case in Twin Oaks, Missouri, where a local wedding photographer, Josephine Havlak, challenged a town ordinance limiting commercial activity in a public park.  Late last month, the Eighth Circuit Court of Appeals affirmed the district court’s denial of the photographer’s motion for preliminary injunction, finding the ordinance content neutral and constitutional as applied to the photographer.

The facts of the case can be found on our post from last year.

On appeal, the Eighth Circuit first evaluated whether the plaintiff’s claim was an as-applied challenge or a facial challenge to the entire ordinance.  A facial challenge can result in invalidation of the entire ordinance, while an as-applied challenge only prohibits enforcement of the ordinance against the plaintiff.  Because the photographer failed to provide any evidence that third parties would be affected in a manner different from her, the court determined that Havlak’s challenge was an as-applied challenge.  Thus, the court only analyzed the ordinance’s application to the plaintiff. Continue Reading Eighth Circuit Upholds Denial of Preliminary Injunction in Photography Case

We are pleased to announce that a new 2017 supplement is available for our friend Professor Dan Mandelker‘s book, Free Speech Law for On Premise Signs.  The supplement can be found here.

Here’s a little bit about the book, straight from Professor Mandelker’s introduction:

Free speech law is critically important for on premise sign regulation. Signs are an expressive form of free speech protected by the free speech clause of the Federal Constitution. Courts decide how local governments can regulate signs, including on premise signs, in order to ensure that sign regulations observe free speech principles. If a sign ordinance does not meet free speech requirements, courts will hold it unconstitutional. This handbook explains the free speech principles that apply to the regulation of on premise signs.

We encourage our readers to check out the supplement.

Sam Shaw and one of his signs. Source: Indiana Public Media.

Last week, a federal district court in Indiana ruled that the enforcement of the City of Bedford’s sign ordinance would not be enjoined, finding that the sign code was content neutral, supported by a significant governmental interest, and narrowly tailored.  The court’s denial of the preliminary injunction indicates that the ordinance is likely to survive constitutional scrutiny. Continue Reading Indiana Town’s Sign Ordinance Withstands Motion for Preliminary Injunction

One of International Outdoor’s billboards in the Detroit area. Source: International Outdoor.

Late last month, a federal court in Michigan granted in part and denied in part a motion to dismiss First Amendment claims filed by a billboard company, International Outdoor, against the City of Troy.  The billboard company claimed that Troy’s sign ordinance was content based and unconstitutional, and that it imposed an unconstitutional prior restraint.  The city moved to dismiss the plaintiff’s claims, and further argued that the billboard company lacked standing to bring the claims.

The court first reviewed the city’s challenge to International Outdoor’s standing, which asserted that International Outdoor failed to plead redressability.  In a short response, the court held that, because the challenge was a facial challenge to the entire sign ordinance, if the court were to strike down the entire ordinance, the plaintiff’s injury would be redressed. Continue Reading Billboard Company’s Challenge to Michigan Sign Code Survives Motion to Dismiss