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.

In a case that we reported on last year, a federal district court in California granted summary judgment in favor of the City of San Diego in a case involving art murals.

Some of the facts of the case are reported in our prior post.  The San Diego sign code exempts from permitting “[p]ainted graphics that are murals, mosaics, or any type of graphic arts that are painted on a wall or fence and do not contain copy, advertising symbols, lettering, trademarks, or other references to the premises, products or services that are provided on the premises where the graphics are located or any other premises.”  Otherwise, all signs visible from the right of way are required to obtain a permit, and signs on city-controlled property must obtain a permit as well.  Messages on city-controlled property are limited to on-premises speech and “public interest” messages.  As we previously noted, the plaintiff, a mural company, was granted approval to place two wall murals in San Diego, but received a violation for the placement of a third mural.  The plaintiff believes that the annual Comic-Con event was given special treatment by the city, because certain signs posted around the city during the event were not issued citations. Continue Reading San Diego’s Motion for Summary Judgment Granted in Mural Case

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 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).

A digital billboard in New Jersey. Source: nj.com.

In a surprising decision, the New Jersey Supreme Court found earlier this month that a township ordinance prohibiting digital billboards violated the free speech provisions of the U.S. and New Jersey constitutions.

Franklin Township, New Jersey, a suburban community in Somerset County, enacted sign regulations that allowed billboards in zoning districts near interstate highways.  The regulations prohibited digital billboards.  The township justified its regulations on the basis of traffic safety and aesthetics.  Various township bodies suggested that the ban on digital billboards was enacted because the township did not have sufficient information on the safety of digital billboards in order to craft appropriate regulations.  Because state law imposes dispersal requirements on billboards, it was established that the township could have just three static billboards and just one digital billboard.

In 2009, E&J Equities sought a variance to allow the placement of a digital billboard in the township.  Because digital billboards were not allowed, the request was brought before the township’s Zoning Board of Adjustment.  The ZBA did not approve the application.

Thereafter, E&J brought an action against the township in state trial court.  The trial court found that the township failed to meet intermediate scrutiny Continue Reading New Jersey Supreme Court: Digital Billboard Ban Unconstitutional

The Ron Paul sign in question in the Texas Highway Beautification Act case. Source: Austin Chronicle.

The Texas Highway Beautification Act permits “political” signs to be displayed no more than 90 days before an election and 10 days after an election.  Because this provision regulates speech based on its content, two weeks ago, the Texas Court of Appeals found the entire Highway Beautification Act violates the First Amendment to the U.S. Constitution.  The court’s decision in Auspro Enterprises, LP v. Texas Department of Transportation is a major blow to state and local efforts to control billboard advertising.

The case began in 2011 when a head shop owner in Bee Cave, Texas, Auspro Enterprises, displayed a sign advocating the election of Ron Paul for President outside of the time limits prescribed by the Highway Beautification Act.   The state Department of Transportation brought an enforcement action against the landowner Continue Reading Texas Court Deals Setback to Billboard Restrictions