Last week, the Tenth Circuit Court of Appeals issued an order denying a motion by the plaintiff in the case of Evans v. Sandy City for an en banc rehearing. In ruling on the motion, the court issued a revised opinion. In the revised opinion, the court reaffirmed that Sandy City, Utah’s prohibition on sitting
Appeals Court Affirms District Court Ruling in Favor of Pennsylvania Animal Rights Activists
In a case that we reported on previously, the Third Circuit Court of Appeals has entered a ruling in favor of a group of animal rights activists that wished to protest the Barnum and Bailey Circus in a government-owned convention center and arena in Wilkes-Barre, Pennsylvania.
The facts of the case can be found in our earlier posts. At issue on appeal were questions of whether the government could limit the area allowed for protests at the arena, whether the protesters could be prohibited from using profane language, and whether the convention center could prohibit the use of sound amplification.
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Utah City’s Median Restriction Found Content Neutral, Constitutional
Earlier this summer, the Tenth Circuit Court of Appeals held that Sandy City, Utah’s restriction on sitting or standing in a street median of less than 36 inches in width met constitutional muster. Although the regulation was principally aimed at addressing panhandling activity, the court found the regulation to be content neutral, affirming an earlier district court ruling in the case. The court’s decision appears to offer an avenue for local governments to address safety concerns associated with panhandling, without treading on constitutionally unstable ground.
The Supreme Court’s 2015 decision in Reed v. Town of Gilbert resulted in the invalidation of many restrictions on panhandling in municipalities around the United States. To get around the legal defects associated with panhandling prohibitions, municipalities—like Sandy City—have adopted general restrictions on sitting, standing, and remaining in street medians to achieve the same ends.
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Sixth Circuit Reverses Denial of Preliminary Injunction in Memphis Planned Parenthood Case
In a case we reported on last year, the Sixth Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction in a case involving protests outside of a Planned Parenthood location in a Memphis, Tennessee business. The case previously turned on the fact that the street in front of the clinic was a private street. The district court had determined that, because the street was private, it could not be a public forum in which anti-abortion protests could take place.
The Sixth Circuit’s decision, issued yesterday, turned on the fact that the private street in question was “physically indistinguishable” from adjacent public streets. The court reasoned that, because the private street was paved and had no signage indicating that it was privately-owned, a reasonable member of the public would likely consider the street public. Thus, the court classified the street as a traditional public forum. The court was also swayed by the fact that there appeared to be a dedication of the street on the subdivision plat for the business park in question, and that the public had impliedly accepted the street as a public street through public use of the street. The court went on to apply strict scrutiny (although it did not conduct any analysis as to whether the restrictions on the street’s use were content based), and reversed the district court’s order.
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Supreme Court Rules That Cross Monument Can Remain, Despite Religious Meaning
In a widely-anticipated decision, the U.S. Supreme Court ruled late last month that a large concrete cross located on public property at a major intersection in Bladensburg, Maryland, could remain in place. The nearly 90-year-old cross, which was placed to honor victims of World War I, had been challenged by an atheist organization as a violation of the First Amendment’s prohibition on establishment of religion.
In a fractured decision, seven of the Justices agreed that the cross could stay. Writing for a plurality of the Court, Justice Alito argued that, although the Latin cross has a religious meaning, its longtime placement at a major intersection as a war memorial meant that it had taken on a secular meaning as well. In light of this longstanding history, he concluded that the cross was not a violation of religious liberty. In rendering his opinion, Justice Alito eschewed use of the widely-criticized Lemon test, developed by the Supreme Court in 1971, which looks at the government’s purpose and the effect of a regulation to determine whether an unconstitutional establishment of religion is created. Justices Breyer and Kagan concurred in the opinion, noting that each Establishment Clause case must be reviewed individually and observing that no particular judicial test works in every situation.
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Seventh Circuit Upholds Wisconsin Ordinance Prohibiting Inflatable “Scabby the Rat”
The rats and cats are back. We first reported on this case in 2016, after the Seventh Circuit determined that it might be moot. As it turns out, the case was not moot, and “Scabby the Rat” returned to the appeals court again. In a ruling last month, the Seventh Circuit found that the district court properly determined that the town’s ordinance prohibiting the inflatable rat was not content based and accorded with the First Amendment.
The facts of the case can be found in our earlier post. After the Seventh Circuit suggested that the case might be moot due to an agreement between the union and employer, the case went back to the district court. The district court subsequently found the case not to be moot, as the union was seeking damages for its inability to place the rat in the right-of-way. In its ruling, the district court then found that the ordinance in question—which prohibited the placement of private signs in town right-of-ways—was content neutral and survived First Amendment scrutiny.
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Sixth Circuit Reverses in Nashville Pride Protest Case
In a case that we reported on over a year ago, last fall, the Sixth Circuit Court of Appeals reversed a Tennessee judge’s entry of summary judgment in favor of the Nashville metropolitan government, finding instead that the relocation of protesters at Nashville’s Pride
Ninth Circuit Holds Transit Advertising Is Nonpublic Forum, But Prohibition on Demeaning or Disparaging Advertising is Unconstitutional
In a case that has been percolating for more than five years and which we reported on last year, the Ninth Circuit Court of Appeals reversed a district court
Federal Court Denies Preliminary Injunction in Boston Flag Case
The City of Boston has three flagpoles in the plaza in front of its city hall. Typically, the city displays an American flag and POW/MIA flag on one pole and the flag of Massachusetts on the second pole. The third pole is used for the City of Boston flag, or alternatively, the flag of a third party. The third pole has been used for flags of foreign nations, civic organizations, the LGBT rainbow flag, and others. Parties can submit applications to fly their flag on the third pole, and the city has guidelines that prohibits flags that involve illegal or dangerous activities or conflict with scheduled events. The city reviews applications to determine whether a flag is consistent with the city’s message, policies, and practices, but does not have any guidelines as to the content of the flags. When an applicant was denied the opportunity to place a “Christian flag” on the City Hall on the grounds that the city refrains from flying religious flags on the Plaza, he filed suit.
Late last month, on the plaintiff’s motion for preliminary injunction, a federal district court found for the city. The court determined that the display of flags in front of City Hall constituted government speech. Applying the factors established by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court found that flags are a longstanding form of government speech, the flags in front of City Hall are likely understood to be government speech, and the city has effective control over the flags in front of City Hall. Finding that the flags constitute government speech, that effectively ended the First Amendment inquiry.
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Appeals Court Finds That Concrete Cross Violates Establishment Clause, But Is Reversal In Sight?
Last week, a three-judge panel of the Eleventh Circuit Court of Appeals held that a 75-year old cross displayed in Pensacola, Florida’s Bayview Park was a violation of certain individuals’ constitutional rights under the First Amendment’s Establishment Clause, which prohibits the establishment of religion. But the court’s decision was based entirely on its “prior panel precedent” rule—meaning that the court was bound by a 35-year old decision on nearly identical facts—and the panel openly questioned the correctness of its decision.
Three individuals, represented by the American Civil Liberties Union, brought the case in federal district court in Florida. They alleged that they felt offended by the presence of the cross in the park. Pensacola moved to dismiss on standing grounds, arguing that the plaintiffs’ injuries were sufficient ethereal so as not to pass muster under current-day standing doctrine. The parties also filed cross-motions for summary judgment on the question of whether the cross violated the Establishment Clause.
Continue Reading Appeals Court Finds That Concrete Cross Violates Establishment Clause, But Is Reversal In Sight?