Our friend and colleague, Professor Daniel R. Mandelker of Washington University in St. Louis, has published a new article, titled Billboards, Signs, Free Speech, and the First Amendment. The article is featured in the Real Property, Trust, and Estate Law Journal. The article traces the history of billboard regulation and the eventual application of the First Amendment to commercial speech, as well as the trajectory of court decisions in recent years in light of the Supreme Court’s decision in Reed v. Town of Gilbert. As always, Professor Mandelker’s contributions to this area of the law are greatly appreciated. As has been well-documented on this blog, free speech law pertaining to commercial billboards remains in flux, and we look forward to continuing to inform our readers of legal developments in this area.
A federal district court in Illinois recently denied a church’s preliminary injunction motion and dismissed its suit alleging that a zoning ordinance violates RLUIPA and the Equal Protection Clause. In all of its zoning districts, the Village of Homewood allows places of worship only as special uses. Because non-religious assembly uses are permitted by right in some districts, the Word Seed Church claimed that the ordinance substantially restricts its ability to obtain property in Homewood. Although the Church never sought the required special use permit, it filed suit alleging that the ordinance violates the equal terms, unreasonable limitations, and substantial burden provisions of RLUIPA and the Equal Protection Clause. The Church also moved for a preliminary injunction against enforcement.
Recent litigation against the city of Fort Worth has once again confirmed that localities should steer clear of content-based sign codes and free-wheeling approval processes. Dallas’s neighbor learned that lesson after a federal district court struck down portions of its regulations, concluding they were both content-based and a prior restraint, and also unable to survive strict scrutiny.
The case arose from plaintiff Brookes Baker’s efforts to place crosses in the city right-of-way alongside an abortion clinic. Continue Reading Federal District Court Strikes Down Fort Worth’s Prohibition and Exemption Scheme for Materials in the Right-of-Way
In November, the court sent parts of a case about a seemingly-unwelcome religious center back for district court reconsideration. The Thai Meditation Association of Alabama, a Buddhist organization, had applied for zoning permits to construct a meditation and retreat center in a residential area of Mobile. The neighborhood expressed fierce opposition to the construction, and the Planning Commission denied the application. Although the Planning Commission—and the City Council on appeal—cited concerns about site access, traffic, and compatibility with the neighborhood, the Association believed the denial was rooted in religious animosity.
In a case of first impression within the Sixth Circuit, a district court held that a city’s interest in protecting the exercise of a permit holder’s First Amendment rights is—at least in some circumstances—a significant interest supporting the content-neutral regulation of speech.
In 2018, Johnson City, Tennessee granted a Special Events Permit to LGBTQ organization TriPride to hold a parade and festival in a city park. At the festival, city officers enforcing the Special Events Policy moved religious protesters from blocking the park’s entrance. The protesters filed suit, claiming that this allegedly arbitrary enforcement violated their rights to free speech and free exercise of religion.
Earlier this month, the court held that the City of Norman, Oklahoma may enforce a disturbing-the-peace ordinance against anti-abortion protesters while their litigation claiming it violates the First Amendment is pending. The ordinance prohibits “disturb[ing] the peace of another . . . by [p]laying or creating loud or unusual sounds.” City police had cited and threatened to cite the protesters for violation when their amplified speech on sidewalks outside an abortion clinic could be heard inside the clinic. The protesters claimed that the ordinance violates their rights to free speech and free exercise of religion, facially and as applied, but the district court denied their request for a preliminary injunction.
As a company that sells advertising space on benches in public areas, Bench Billboard Company has a long and storied litigation history against municipalities in Ohio and Kentucky. In this most recent iteration, the BBC challenged the constitutionality of Colerain Township’s (a Cincinnati suburb) restriction on signage in its right of way after the Township attempted to
remove BBC’s signs.
Noting that both the Ohio Appeals Court and the Sixth Circuit had answered virtually identical questions in two earlier BBC cases, the panel dispatched with the challenge in short order. Quoting a 2016 decision, the panel concluded that Colerain held a substantial interest in maintaining its right-of-way, restrictions on signage directly related to those purposes, and BBC enjoyed numerous other avenues for displaying its signage. The court also made the standard recitations about governments’ ability to regulate commercial signage in the interest of preserving aesthetics, addressing traffic safety, and reducing visual clutter.
BBC also raised concerns regarding Colerain’s restrictions regarding signage on private property, but the court made quick work of these too. Somewhat curiously, the panel did not follow the standard Central Hudson or intermediate scrutiny rubric for commercial or content-neutral restrictions. Instead, it upheld the township’s private property signage restrictions as applied to BBC, reasoning that Colerain had provided ample evidence of the traffic and aesthetic concerns it sought to regulate and its restrictions therefore bore a substantial relationship to health, safety, and welfare.
Simi Valley, California, like many cities, bans mobile advertising displays on public streets. It also, however, exempts certain authorized vehicles from the general ban. The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.
Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation. Following that conclusion, it returned the case to the district court for further proceedings to determine whether Continue Reading Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny
In a midnight per curiam opinion that generated several concurring and dissenting opinions, the Supreme Court recently enjoined the state of New York from enforcing certain COVID-19 restrictions against religious institutions. Although the injunction is limited to the pendency of the underlying appeal in the Second Circuit, it represents the Court’s most thorough treatment of pandemic-related restrictions on religious exercise to date. It also marks an about-face from Chief Justice Roberts’ solo concurrence to the Court’s denial of a similar application for injunctive relief earlier this year. In May, the Chief Justice deferred to the coordinate branches in dealing with the pandemic. Now, however, the full Court has grown more skeptical of pandemic restrictions affecting religious exercise, and lower courts will probably follow suit.
The facts are as follows: New York has adopted a tiered system of pandemic restrictions. The state applies those restrictions to a number of geographic districts based on the severity of the pandemic in those districts. Restrictions for a “red zone” are more severe than those for a “yellow zone” and so on. New York’s regulations also distinguish between “essential” and non-essential business, and further identify religious institutions among the various uses regulated. Religious institutions are not an “essential” use, though they receive preferential treatment relative to other large, indoor gatherings. In “red zones” no more than ten people may attend each religious service. In “orange zones,” the regulations cap attendance at twenty-five, irrespective of building capacity. “Essential” businesses, which include acupuncture clinics and liquor stores, face no such capacity restrictions.
The per curiam opinion (which legal writing analysts believe was authored by Continue Reading Supreme Court Sides with Religious Institutions Against New York Restrictions on Worship Services
Earlier this year, the federal Court of Appeals for the Eleventh Circuit upheld a district court’s denial of a preliminary injunction requested by a street preacher who alleged that a county government had infringed upon his First Amendment rights.
Adam LaCroix is a street preacher who discusses “Biblical principles of sexual morality” outside public venues in Lee County, Florida, including JetBlue Park, where the Boston Red Sox train. The venue is owned by the county government, but leased to the Red Sox. The team in turn allows special events, such as concerts, to occur at the facility. LaCroix attempted to preach during one such event, in which only concert patrons were allowed to enter the property, and was told that he could not do so.
LaCroix then filed suit in federal district court on First Amendment grounds, claiming that the ordinance was content based and that the government left police officers with unbridled discretion. He sought a preliminary injunction, which was denied on the grounds that LaCroix lacked standing and that he was not entitled to a preliminary injunction. On appeal, the Eleventh Circuit agreed with the district court’s analysis. The Eleventh Circuit concluded that LaCroix failed to specifically identify where his future free speech activity would be located, and thus did not establish a concrete injury in fact. Because the court concluded that the plaintiff failed to show that he was presently or would be subject to a permitting ordinance for this type of speech, the appeals court confirmed that the case should be dismissed.