This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Late last month, the U.S. Supreme Court handed down two opinions addressing separate free speech issues.  While neither decision related specifically to local government regulations, both hold some important lessons for local government practice, as we outline below.

In Packingham v. North Carolina, the Court struck down a North Carolina law making it a felony for registered sex offenders “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  Gerard Packingham, having previously been convicted of “taking indecent liberties with a child,” was cited for violating the law when he posted a statement on his Facebook page about a “positive experience in traffic court.”

At trial, Packingham filed a motion to dismiss on the grounds that the charge violated his First Amendment free speech rights.  The trial court denied Packingham’s motion, and he was subsequently convicted.  Upon appeal, the Court of Appeals of North Carolina struck down the law on First Amendment grounds, explaining that “the law is not narrowly tailored to serve the State’s legitimate interest in protecting minors from sexual abuse.”  The North Carolina Supreme Court reversed, holding the law constitutional “in all respects,” and explaining that the law was carefully tailored to prevent sex offenders from accessing “only those Web sites that allow them the opportunity to gather information about minors.” Continue Reading U.S. Supreme Court Issues Rulings in Two First Amendment Cases

“Sexy cops” patrolling the Las Vegas Strip. Source: loweringthebar.net.

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Last month, street performers in the Ninth Circuit got a bigger tip than anticipated when the Ninth Circuit Court of Appeals reversed a Nevada federal district court’s order granting summary judgment to three Las Vegas police officers, where the police officers ticketed two street performers on the famous Las Vegas Strip.  In its ruling, the appeals court found that the street performers—who dressed up as “sexy cops” to take photos with tourists—could not constitutionally be required to obtain a business license for engaging in expressive activity and association.

Michele Santopietro is an actress turned street performer who occasionally dresses up as a “sexy cop” on the Las Vegas Strip.  In March of 2011, Santopietro and her colleague Lea Patrick performed as “sexy cops” on the Strip as they were approached by three individuals indicating a desire to take a photograph.  The “sexy cops” happily obliged.  Following the photograph, Patrick persistently reminded the three individuals that the “sexy cops” work for tips.  Unbeknownst to Santopietro and Patrick, the three individuals in question were real Las Vegas Metro police officers dressed down in street clothes.  Due to Patrick’s persistence and claim that the officer entered into a “verbal contract” to give a tip, the Metro police officers arrested the two women under Clark County Code § 6.56.030 which states: “It is unlawful for any person, in the unincorporated areas of the county to operate or conduct business as a temporary store, professional promoter or peddler, solicitor or canvasser without first having procured a license for the same.” Continue Reading Las Vegas “Sexy Cops” Don’t Need a Business License, At Least For Now

A homeless individual’s sign in Slidell, Lousiana. Source: WWLTV.com.

This week, a federal district court in Louisiana granted a motion for summary judgment invalidating the City of Slidell’s law requiring panhandlers to register and wear identification before soliciting donations.  In a lengthy but thorough order, the court found the city’s law, which applied only to individuals seeking to solicit donations of money or services, content based and unconstitutional, and issued a permanent injunction against enforcement of the law.

The backstory of Slidell’s “panhandler ID” law starts in 2015.  Since then, the city received 70 complaints relating to panhandling and solicitation, but only 14 were “connected to an identifiable individual.”  Because of the difficulty of tracking down panhandlers who were violating city laws, the city council passed an ordinance containing certain registration and identification requirements.  Specifically, the ordinance required individuals to complete an application at least 48 hours prior to panhandling.  To complete the application, a person was to physically appear at the police department between 9:00 and 5:00 on a weekday, fill out the written application (which required listing an address, telephone number, email, and other identifying information), and show a photo identification.  After a group of indigent individuals sued the city over the law, the city removed the 48-hour waiting period and required issuance of a permit for up to 72 hours of panhandling following filing of a complete application.  The 72-hour permit can be extended for up to a year on certain conditions. Continue Reading Louisiana Town’s “Panhandler ID” Law Struck Down

A nudist political protest in San Francisco. Source: Change.org.

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Is a birthday suit like burning a draft card?  Last week, the Ninth Circuit Court of Appeals took on a First Amendment challenge to San Francisco’s public nudity ordinance, which prohibits an individual from exposing “his or her genitals, perineum, or anal region on any public street, sidewalk, street median, parklet, plaza, or public right-of-way . . . or in any transit vehicle, station, platform, or stop of any government operated transit system in the City and County of San Francisco.”  “Body freedom advocates” Oxane “Gypsy” Taub and George Davis brought an action challenging the City’s enforcement of the ordinance, alleging that it unconstitutionally prohibited expressive nudity at a political rally. The case came before the Ninth Circuit following dismissal by the United States District Court for the Northern District of California. Continue Reading Naked and Apparently Unafraid in San Francisco: Ninth Circuit Upholds Public Nudity Ban

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Last week, the Seventh Circuit Court of Appeals upheld a preliminary injunction preventing an Indiana county from denying a marijuana advocacy organization’s request to demonstrate.  We first reported on this case last December.  As a refresher, the Higher Society of Indiana is a non-profit organization currently lobbying for “full legalization of Cannabis in Indiana.”   In 1999, the Tippecanoe County board declared the courthouse grounds a “closed forum,” and enacted the following policy for those seeking demonstration approval on the grounds:

Only displays and events sponsored and prepared by a department or office of county government will be allowed in the windows of the Tippecanoe County Office Building or on the grounds of the Tippecanoe County Courthouse. Said displays and events shall be scheduled through the Board of Commissioners of the County of Tippecanoe. Continue Reading Seventh Circuit Upholds Preliminary Injunction in “Higher Society” Case

A Spokane Transit Authority bus. Source: Spokane Public Radio.

The union representing Spokane Transit Authority employees will have an opportunity to continue its challenge to the STA’s bus advertising policy, now that a federal court has denied the transit authority’s motion to dismiss.

Like many transit agencies, the STA has an advertising policy.  Until November 2016, the STA delegated administration and enforcement of the policy to an advertising contractor called ooh Media LLC.  The policy allows “Commercial and Promotional Advertising” and “Public Service Announcements.”  Commercial and promotional advertising includes general commercial advertisements for products, services, events, and the like.  Public service announcements are required to meet three criteria: the sponsor must be a governmental or 501(c)(3) nonprofit entity, the announcement must relate to one of five topics (including public health, safety or personal well-being, family or child social services, broad-based contribution campaigns, or services for low-income people or persons with disabilities), and the announcement may not include a commercial message.  The policy also prohibits deceptive advertising, political speech, or ideological or religious messages. Continue Reading Labor Union’s Challenge to Spokane Bus Advertising Rules Moves Forward

A 20-foot buffer zone at a Planned Parenthood facility in Harrisburg. Source: PennLive.com.

Last week, in a case that we reported on last summer involving protests near abortion clinics in Harrisburg, Pennsylvania, the Third Circuit Court of Appeals remanded the plaintiffs’ request for a preliminary injunction back to the district court, finding that the lower court misapplied the narrow tailoring analysis.

The facts of the case, which challenges Harrisburg’s protest-free buffer zone requirement around abortion clinics, can be found on our post from last fall.  The buffer zone in question is a 20-foot zone extending from the entrance to a reproductive health care clinic in which congregating, patrolling, picketing, and demonstrating are unlawful.  Following the district court’s denial of a preliminary injunction, the plaintiffs appealed that ruling to the Third Circuit.  Continue Reading Harrisburg Abortion Clinic Case Remanded Back to District Court

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