Protests & Demonstrations

This weekend (May 6th-9th, 2017) brings us to the American Planning American’s National Conference in New York City.  Along with colleagues from around the country, we’ll be talking about everything land use and the First Amendment, from signs to adult businesses, religious land uses, and the public forum doctrine.  If you’re planning to be at the conference, please join us for the following panel presentations:

  • On Monday, May 8 at 4:15 p.m. ET, Brian Connolly will join Evan Seeman of Robinson & Cole and Noel Sterrett of Mauck & Baker in a presentation entitled “Planning and Zoning for First Amendment-Protected Land Uses,” which focus on sign regulation, regulation of religious land uses, and adult business regulation, among other interesting topics.  The speakers recently co-wrote an article that appeared in the newsletter of the American Planning Association’s Planning & Law Division on these topics, which can be found here.
  • On Tuesday, May 9 at 7:45 a.m. ET, Brian Connolly and Alan Weinstein, professor of planning and law at Cleveland State University, will present on “Planners and the Public Realm: Legal Rights and Planning Issues,” which will dive more deeply into the public forum doctrine and the opportunities and constitutional limitations associated with planning for public spaces.

We look forward to seeing many of our friends and readers in New York!

A street performer on the Ocean City Boardwalk. Source: Maryland Coast Dispatch.

Late last month, a federal district court judge denied Ocean City, Maryland’s motion to dismiss First Amendment claims brought by a group of street performers.  Ocean City passed an ordinance that designated a limited number of performance spaces on the city’s famous Boardwalk, which are assigned by a lottery system every Monday morning.  Performers are required to be present at the Town Clerk’s office for the lottery drawing.  The performers are then assigned to designated performance spaces, which are limited in size, and performers are restricted from performing in the same space for more than two weeks at a time.  The city’s ordinance also precludes performers from using paint, dye, or ink, which prohibits them from doing face-painting or other such activities.

The group of street performers filed federal and state constitutional claims.  In its order, the court noted that the artistic performances of the street performers fall within the protection of the First Amendment, and that the limitations in the ordinance must constitute content neutral time, place, and manner restrictions.  The court denied the motion to dismiss on the grounds that the complaint alleged that the code provisions were broader than necessary to achieve the city’s asserted interests, which, given that the court cannot at the pleading stage make a determination regarding the regulations’ content neutrality and tailoring, was sufficient for the litigation to move forward.

Christ v. Mayor of Ocean City, No. WMN-15-3305, 2017 WL 1382315 (D. Md. Apr. 18, 2017)

The Great Hall of the Jeppesen Terminal at Denver International Airport. Source: Denver Post.

Last week, a federal district judge in Colorado partially granted a motion for preliminary injunction filed by two individuals who sought to protest President Trump’s executive order banning immigration from seven predominantly Muslim countries.  The court found that the plaintiffs were likely to succeed on the merits of their claim, which was filed in connection with demonstrations held at Denver International Airport immediately following the order.

Denver regulates First Amendment activities at its airport via a municipal regulation that requires demonstrators to first obtain a permit, which must be applied for no more than 30 and no less than seven days before the proposed activity.  In addition, any signs carried by protestors may not exceed one square foot, and picketing by more than two persons on items unrelated to a labor dispute is generally prohibited throughout the airport.  The chief executive officer of the airport has the discretion under the regulation to determine where protest activity may occur. Continue Reading Court Grants Preliminary Injunction in Trump Immigration Ban Protest Case

Wagner’s sign in Garfield Heights. Source: Cleveland Plain Dealer.

Earlier this month, the Sixth Circuit Court of Appeals upheld an Ohio district court’s decision to permanently enjoin the enforcement of the City of Garfield Heights’s sign code.  The court found that the sign code’s restriction of “political signs” to six square feet was content based and unconstitutional.

The case began in September 2011, when local resident Frank Wagner wanted to protest a local councilwoman’s support of traffic cameras and a waste disposal tax.  Wagner placed a sixteen-square foot sign in his front yard that called out the councilwoman.  Continue Reading Ohio City Loses Political Sign Battle

Earlier this month, the First Circuit Court of Appeals held that a group of abortion protesters did not have standing to challenge a New Hampshire buffer zone law.  The First Circuit’s decision affirmed a decision by the federal district court, which we reported on last summer.

The law in question prohibited protesters from entering within 25 feet of the entrance to a reproductive health care facility.  Following the U.S. Supreme Court’s decision in McCullen v. Coakley, enforcement of the New Hampshire law was stayed.  A group of protesters filed suit anyway, but the district court found that the plaintiffs had suffered no injury since the law had not been enforced and was not likely to be enforced against them.

The First Circuit agreed with the district court that, because injury was not imminent, the group of protesters lacked standing.  The appeals court also held that the challenge was not ripe, as the court could not meaningfully decide the case and there was no prejudice to the plaintiffs if they were required to wait until their claims ripen.

Reddy v. Foster, ___ F.3d ___, 2017 WL 104825 (1st Cir. Jan. 11, 2017).

Some of Higher Society’s decor on the Tippecanoe County courthouse. Source: WLFI.

Earlier this week, a federal court in Indiana issued a preliminary injunction in favor of a group of marijuana advocates, Higher Society of Indiana, who wish to hold rallies on the steps of the Tippecanoe County courthouse.  The county government denied the group’s request to hold rallies in that location because the county disagreed with the group’s message.

In 1999, the county issued a policy regarding use of the courthouse grounds by non-governmental groups.  The policy requires a group wishing to hold an event on the courthouse grounds to obtain a sponsorship approval Continue Reading Free Speech and Funny Cigarettes: “Higher Society” Wins Preliminary Injunction to Hold Pro-Marijuana Rally on Indiana Courthouse Steps

A photo of the “Temple Burn” engaged in by Catharsis on the Mall in 2015. Source: catharsisonthemall.com.

Last month, the federal district court in Washington, D.C. denied a request for a preliminary injunction against the National Park Service’s enforcement of its bonfire restrictions on the National Mall.  A group sought to host a demonstration on the Mall that would have attracted more than 4,000 participants and involved the burning of a wooden “Temple” as a symbol of support for additional protections and services for veterans.  The National Park Service denied the group’s request for a permit based on newly-enacted rules regarding bonfires on the Mall, which limited the size of bonfires for safety purposes.  Prior regulations allowed bonfires with a National Park Service permit.  Continue Reading No Preliminary Injunction in National Mall Bonfire Case

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

The City of Harrisburg, Pennsylvania enacted a “buffer zone” ordinance that disallows an individual to “knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility.”  A group of plaintiffs, protesters and sidewalk counselors near abortion clinics, challenged the law on First Amendment grounds.  Two weeks ago, a federal district court in Pennsylvania granted the city’s motion to dismiss several of the plaintiffs’ claims and denied a preliminary injunction to the plaintiffs.

Citing the 2014 Supreme Court case of McCullen v. Coakley, the court found that the city’s 20-foot buffer zone restriction was content neutral and therefore subject to intermediate scrutiny review.  The court determined, however, that the city should be required to present evidence that the regulation in question was narrowly tailored to a significant governmental interest as required by the First Amendment.  Accordingly, the court allowed the plaintiffs’ narrow tailoring claim to proceed.  The court dismissed the plaintiff’s claims regarding vagueness, prior restraint, selective enforcement, and Free Exercise Clause claims.  With respect to the plaintiff’s request for a preliminary injunction, the court found that the plaintiffs did not show how they might succeed on the merits of the case:

Although Defendants have not made a clear showing, at the preliminary injunction stage, it is Plaintiffs who have the burden of clearly establishing a probability of success on the merits. Based on the record before the court, Plaintiffs have failed to carry that burden.

We have reported on several buffer zone cases in recent months, as more plaintiffs challenge these common methods of protecting patients and employees at reproductive health care clinics.  Given the higher evidentiary burdens placed on local governments following McCullen, it remains to be seen how many of these buffer zone laws will survive judicial scrutiny.

Reilly v. City of Harrisburg, Slip Op., No. 1:16-CV-0510, 2016 WL 4539207 (M.D. Pa. Aug. 31, 2016).

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