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 case involved a dispute between the Minnesota Tea Party and election judges. Source: MinnPost.

In February, the Eighth Circuit Court of Appeals affirmed a Minnesota district court’s grant of summary judgment in favor of the state, finding that the government could effectively prohibit political speech in polling places.  In a short decision, the court determined that speech by members of the Tea Party was properly restricted from polling locations.

Minnesota has a state statute that prohibits individuals from wearing political buttons or other insignia in polling places on election days.  The state issued a policy guide which was intended to assist election judges with the types of material that constituted political speech, which included “issue-oriented” material or material that promoted groups with political ends.  Failure to abide by the restriction could result in prosecution for a criminal misdemeanor.  The group that challenged the law included several members who wished to bear the insignia of the Tea Party in polling places. Continue Reading Eighth Circuit Affirms That Government Can Prohibit Political Speech in Polling Places

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

A tattered campaign sign on a D.C. lamppost. Source: Washington Times.

Yesterday, the Court of Appeals for the D.C. Circuit determined that Washington, D.C.’s regulation of event-based signage on public lampposts is not content based.  On its face, the court’s decision appears to conflict with one of the central holdings of the Supreme Court’s 2015 decision in Reed v. Town of Gilbert.  But the lengthy, well-written opinion made significant efforts to distinguish the case from Reed, and the D.C. Circuit’s decision potentially offers new avenues for local governments to control proliferations of signage.

Washington, D.C. has long regulated signage on public lampposts. Continue Reading In Apparent Departure From Reed, D.C. Circuit Says Event-Related Sign Restrictions Are Not Content-Based

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).

An aerial view of the Grand Haven cross. Source: Grand Haven Tribune.

Late last month, in an unpublished opinion, the Michigan Court of Appeals determined that a monument commemorating those who served and died in the Vietnam War, located on land owned by the City of Grand Haven, was government speech and not subject to First Amendment limitations.  The monument, placed on a sand dune along the Grand River, contains a lifting mechanism that allows the monument to display a cross or, when certain attachments are included on the monument, an anchor.  When members of the community requested that the monument be lifted to display the cross, the city would raise the lifting mechanism.

In 2015, the city passed a resolution allowing the monument to display only the anchor, not the cross.  Members of a local church challenged the resolution as violating the free speech and equal protection provisions of the Michigan Constitution.  The trial court granted summary judgment to the city on the grounds that the monument was government speech. Continue Reading Michigan Court of Appeals: Cross/Anchor Monument is Government Speech

One of the images that FFRF wished to display in the Texas capitol. Source: New York Post.

Late last month, a federal court in Texas denied a motion for summary judgment filed by the State of Texas in a case challenging the state’s policy for allowing privately-sponsored displays in the state capitol building.

The Texas State Preservation Board allows private individuals and groups to display exhibits “for a public purpose” in the public areas of the Texas state capitol building, subject to the board’s approval.  A private group, Freedom From Religion Foundation, which advocates for separation of church and state, wished to display an exhibit in December 2015 depicting life-size figures celebrating the birth of the Bill of Rights, along with Continue Reading Exhibits in Texas State Capitol Do Not Constitute Government Speech, Viewpoint Discrimination Claim Moves Forward

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