In a recent case out of Fall River, Massachusetts, the state supreme court found a panhandling law so riddled with constitutional problems as to require entire invalidation. Plaintiffs, each a homeless person who sometimes panhandled to meet their basic needs, sought declaratory and injunctive relief against a state law that criminalized signaling to a motor vehicle on a public way “for the purpose of solicitating any alms, contribution or subscription or selling of any merchandise,” but expressly permitted the same conduct undertaken for other purposes or by a nonprofit organization. They alleged violations of free speech rights under the First Amendment and state constitution.
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District Court Denies Preliminary Injunction in Philadelphia Homeless Encampment Case
Late last month, a district court in Pennsylvania entered an order denying preliminary injunctive relief in a First Amendment case filed by a group of homeless advocates seeking to raise awareness of homelessness in Philadelphia.
The case involves three homeless encampments at locations on city- and state-owned properties near Philadelphia’s Center City. The encampments started in the summer of 2020, and over 200 people reside in them. The plaintiffs in the case alleged that the encampments are protests relating to city policies toward the homeless. In July, the city provided notice that it would sweep and remove the encampments on or before August 18. On August 17, the plaintiffs filed their claim in federal district court and moved for a temporary restraining order and preliminary injunction.
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Tenth Circuit Strikes Down Oklahoma City Median Restrictions
Last week, the federal Court of Appeals for the Tenth Circuit ruled that an Oklahoma City law prohibiting people from remaining on street medians violated the First Amendment. The law was challenged by a diverse group, including panhandlers, minority political parties, and even joggers.
In 2015, apparently in response to concerns regarding panhandling, Oklahoma City passed a law that prohibited individuals from sitting, standing, or remaining in street medians throughout the city. Although the law was motivated by concerns regarding panhandlers, the city sought to justify the law with the presentation of safety statistics regarding pedestrians in street medians. A group of plaintiffs sued the city, and it revised the ordinance in 2017 to limit the law’s coverage to medians along streets with speed limits of 40 miles per hour or greater. Again, the city justified its amended law with safety information.
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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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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
In Tennessee Planned Parenthood Case, Court Finds Private Street is Not a Public Forum
Last month, a federal district court in Tennessee denied a motion for preliminary injunction filed by a man who wished to picket a Planned Parenthood location in a business park in Memphis. The court determined that the private street on which the plaintiff, John Brindley, intended to picket was not a public roadway and therefore was not a traditional public forum requiring content neutral speech regulations.
Planned Parenthood’s offices are located on Virginia Run Cove, a two-lane street that serves multiple businesses located within the park. The park is zoned as a planned unit development, and the street serves the businesses located within the park. Brindley sought to protest Planned Parenthood on Virginia Run Cove, but was asked to move by a police officer on the premise that Virginia Run Cove is a private street. Brindley subsequently moved to a nearby public street, but was dissatisfied that his protest location was nearly 300 feet from his target audience, Planned Parenthood. Brindley subsequently filed his complaint in federal district court.
In conducting a forum analysis to determine whether Virginia Run Cove was a public forum for First Amendment purposes, the court noted that some public fora are privately-owned. These areas include public sidewalks that run across private property, sidewalks on private university campuses, and even the streets of corporate-owned communities. However, the court observed, private areas are not converted into public fora where the owner of the property allows a more limited use of the property.
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Summary Judgment Granted to Christian Evangelist in Syracuse Pride Parade Case
In a case that we reported on in 2016, a federal district court in New York has granted summary judgment to the plaintiff. The case involves the regulation of protest speech—specifically, a protester’s activities during an LGBTQ rights parade—on public sidewalks.
A brief recap of the facts is merited. James Deferio is a Christian evangelist who has protested each year at the Central New York Pride Parade and Festival, held in Syracuse. Each year, the city issued a permit to the organizers of the parade. That permit indicated that no speakers would be allowed on sidewalks adjacent to the parade. At the 2014 event, Syracuse police officers threatened Deferio with arrest in reliance on the permit, and he relocated from the site. In 2015, the city again approved a permit for the parade, giving the parade exclusive control over First Amendment activities and limiting the use of sound amplification devices near the parade route. The 2015 permit also allowed for a zone where protest activities could occur. Deferio again attended the parade to protest. After minor verbal altercations ensued, a Syracuse police officer told Deferio that he could be arrested for his activities, and he relocated to the zone designated for protest activity.
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Can University of Alabama control preacher’s access to campus sidewalks? 11th Circuit: Roll Tide.
The concrete pathways at the corner of University Boulevard and Hackberry Lane in Tuscaloosa, Alabama, may look and quack like
sidewalks, but as constitutional matter, the Eleventh Circuit considers them something less: an extension of the University of Alabama campus. In a recent decision, that circuit concluded the sidewalks were not a “traditional public forum” within which the Constitution confines government control of speech and other demonstrations, but rather a “limited public forum” to which the University of Alabama could constitutionally control access. The practical result? The unlicensed street preacher who sued ‘Bama won’t get a preliminary injunction against the university’s grounds-use policy.
The plaintiff preacher,
Continue Reading Can University of Alabama control preacher’s access to campus sidewalks? 11th Circuit: Roll Tide.
Court Upholds Relocation of Protesters at Nashville Pride Festival
Late last month, a federal district court in Tennessee granted summary judgment to the Nashville metropolitan government in a case involving the rights of protesters at the 2015 Nashville Pride Festival, which is a celebration of LGBTQ rights and culture.
Nashville Pride Festival is held in the City’s Public Square Park. In order to hold the festival in the park, Nashville required the organization Nashville Pride to obtain a permit. The event was ticketed, such that only those with tickets could enter into the park. The plaintiffs in the case, John McGlone and Jeremy Peters, believe that homosexuality is a sin. They attended the festival in protest, but stayed outside the ticketed area. A festival employee asked them to leave the area outside of the gate, as it was subject to Nashville Pride’s permit. Eventually, the protesters were removed to a location on the other side of the street from the park. This location was unsatisfactory to the plaintiffs, because they believed that their message would reach less people.
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