Some questions probably never need to be answered, and the universe of such questions might include the question: “what exactly is skim milk?” In a decision that sheds light on the current state of the commercial speech doctrine—and which may provide some helpful guidance for our local government readers—the Eleventh Circuit additionally provides some good analysis of low-fat dairy products. Continue Reading What is Skim Milk? Eleventh Circuit Provides Some Insight in Commercial Speech Decision
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!
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
Last week, the U.S. District Court for the District of Montana issued an order granting the City of Missoula’s motion for summary judgment in a case challenging the constitutionality of its sign code. The court found that the city’s code was content neutral as applied to the plaintiff, and that the code satisfied the Central Hudson intermediate scrutiny test for commercial speech regulations.
Carwerks, a used car dealership in Missoula, challenged the city’s sign code after the city issued several citations to Carwerks for placing helium balloons on its vehicles in violation of a code provision that prohibited banners, flags, pennants, streamers, spinners, and “other types of wind signs.” Carwerks claimed that the sign code was content based and failed the Central Hudson test. Carwerks took issue with two aspects of the ordinance: first, that the code distinguished between commercial and noncommercial speech; and second, that the code’s definition of “sign” exempted window displays and national flags. Continue Reading Missoula, Montana Sign Code Withstands First Amendment Challenge
Thou shall have the right to an electronic sign? Apparently not. Just over a year ago, Hillside Baptist Church and Signs for Jesus (together, Plaintiffs or Church) filed a complaint in the District Court for New Hampshire, seeking a declaration that the Town of Pembroke’s (the Town) sign ordinance is unconstitutional both facially and as applied to the Plaintiffs. The complaint alleged that the Town’s Ordinance banning the use of electronic signs in all but the Town’s commercial zoning district “restricts how the Church may proclaim a daily Biblical message while not restricting the medium of communicating state, municipal or school messages.” Our post regarding the complaint is available here.
The Plaintiffs claimed that the Town’s limitation on electronic signs in all zones but the commercial zone, and the Town’s denial of the Church’s sign application violated its rights to Free Speech, Free Exercise of Religion, and Equal Protection, as well as RLUIPA’s substantial burden and equal terms provisions. Continue Reading RLUIPA Defense: Signs 4 JC Shown the Light by NH District Court
Last week, another local sign code was found content based and unconstitutional, this time in North Redington Beach, Florida.
A local business, Sweet Sage Café, was issued notices of violation for several alleged violations of the town’s sign code. In response, the café filed First Amendment claims against the town, which is a small coastal community along the Gulf of Mexico. The town’s sign code had several features of sign codes that are commonly understood to be unconstitutional post-Reed:
- The town’s definition of “sign” had several arguably content based elements, including “Drawings of articles for sale on the premises that is related to the business and/or is intended to advertise or inform, rather than being merely aesthetic, shall be classified as a sign under this Chapter. The term does not include an official traffic control sign, official marker, national or state flags permitted by this Chapter, athletic scoreboards, or the official announcements or signs of government.”
- The town exempted several types of signs from permitting on the basis of their message, including “national flags shown in accordance with the standards of the Adjutant General,” warning signs, murals, holiday decorations, memorial signs or tablets, garage sale signs, real estate open house signs, political campaign signs, “no trespassing” signs, and others.
The town issued notices of violation to Sweet Sage Café for a series of flip-flop sandal footprint decals Continue Reading Florida Town’s Sign Code Found to Violate First Amendment
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
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
The Missouri Court of Appeals has ruled that the Kansas City, Missouri, Board of Adjustment abused its discretion in failing to grant a variance to Antioch Community Church (Church) to install digital components into its monument sign. The Church argued that absent the variance it had practical difficulty in communicating its message. In the alternative, the Church contended that the zoning code violated the First Amendment “by favoring less-protected commercial speech over more-protected non-commercial speech.” Under the code, schools and churches on lots 15 acres or more (or 10 acres or more if located on a major arterial road) are allowed to use digital signs. Because the Church’s lot was less than 10 acres, the code prohibited it from having a digital sign on its property.
The Church property is in a single-family residence zone next to commercial, urban residential, downtown, and industrial zones, all of which permit digital signs. The Church is located on Antioch Road, a four-land roadway with about 14,000 travelers each day. Since 1956, the Church has had a monument sign consisting of glass display cases surrounded by brick framework. The sign included messages and information about Church activities that were manually added using letters hung from cup hooks. In 2010, at a cost of $11,000, the Church installed a digital sign, which replaced the display case, but no changes were made to the brick surround. At this time, the Church was unaware that the Kansas City sign ordinance prohibited digital signs in residential zones (Section 88-445-06-A-4 of the code). Accordingly, the Church did not seek a variance before installing the digital sign component. Continue Reading RLUIPA Defense: Missouri Church Wins Digital Sign Appeal
Last week, the Third Circuit Court of Appeals entered an order upholding the district court’s decision in the case of Tearpock-Martini v. Shickshinny Borough, which we reported on last summer. The case involved an Establishment Clause challenge by a citizen to a Pennsylvania borough’s decision to install a sign in the right-of-way stating “Bible Baptist Church Welcomes You!” The district court found, on a motion for summary judgment, that the sign did not violate either the three-part Lemon test under the Establishment Clause, and that it did not violate the endorsement of religion test.
The Third Circuit found the plaintiff’s arguments regarding the posting of other signs in the right-of-way unconvincing. The plaintiff made much of the fact that the only other sign in borough right-of-way was a directional sign to a boat launch, and that the borough had not permitted a post office sign in the right-of-way. But the Third Circuit noted that the post office never applied for a sign in the right-of-way, and further pointed out that the borough’s approval and subsequent installation of the church sign did not send a message of endorsement.