James Deferio protesting same-sex marriage in Syracuse. Source: Syracuse University Student Voice.

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. Continue Reading Summary Judgment Granted to Christian Evangelist in Syracuse Pride Parade Case

Photo credit: slgckgc, flickr. Used pursuant to license: https://creativecommons.org/licenses/by/2.0/.

Don Karns and Robert Parker are evangelical Christian ministers.  The New Jersey Transit Corporation is a government entity providing mass transit services throughout the Garden State.  All three arrived together in court (the first time) after the preachers began proclaiming their creed on a Princeton-area train platform, leading first to passenger complaints and, soon afterward, to their arrest for obstruction of justice and defiant trespass.  Because NJ Transit employed the officers involved, Karns and Parker brought a Section 1983 action alleging that both the officers and the agency had violated the First and Fourteenth Amendments by selectively enforcing NJ Transit’s platform-speech-permitting policy, retaliating against their exercise of First Amendment rights, and restricting their ability to record the encounter.

The district court dismissed those claims, and the Third Circuit affirmed.  The bulk of the opinion concerned an issue interesting in its own right but tangential to the focus of this blog—whether the NJ Transit, in its official capacity, enjoyed 11th Amendment immunity.  After concluding that the 11th Amendment did shield NJ Transit as an arm of the state, the remainder of the opinion dispatched with the preachers’ individual-capacity 1983 claims against the officers themselves.  As to the selective enforcement argument, the ministers had presented no evidence to show that the officers had or would have treated any other platform-goers differently, so the claim failed as a factual matter.  On the First Amendment retaliation claim, Karns and Parker could not overcome the officers’ assertion of qualified immunity because no clearly established law demonstrated that an arrest supported by probable cause could constitute actionable retaliation.  The preachers’ third theory met a similar end: unable to find any clearly established law barring the officers from restricting video recording of police interactions, the court concluded that qualified immunity protected them from the preachers’ claims.

Complete opinion available here: https://law.justia.com/cases/federal/appellate-courts/ca3/16-2171/16-2171-2018-01-11.html

Last month, a federal district court in Pennsylvania found that a billboard company’s challenge to the constitutionality of the state’s highway advertising law sufficiently stated a claim for relief and could proceed to further stages of litigation.

Pennsylvania’s highway advertising law contains a general prohibition on sign structures within 500 feet of a highway interchange or rest area, but the law exempts on-premises commercial and noncommercial signs (i.e. those advertising activities and products available on the property where the sign is located) and “official signs,” which are defined as those placed by public agencies.

Adams Outdoor Advertising, a billboard company, brought a First Amendment challenge, claiming that PennDOT, the state’s transportation department, had changed its interpretation of the highway advertising law, and had given varying directives regarding whether the 500-foot restriction applied to billboards on the opposite side of a highway from a rest area or interchange. Adams wanted to install a billboard opposite an interchange, but PennDOT had declined to issue a permit.  Adams contended that PennDOT’s changed interpretation of the statute made it unconstitutionally vague.  Adams further alleged that the lack of any timeframes in which PennDOT was required to act upon applications for sign permits also made the law unconstitutional.

The court first determined that it was not clear whether the law in question was content neutral, due in part to the exceptions to the permitting requirement.  The court left for a later day the determination of whether it was content neutral, reasoning that even a content neutral law would be required to satisfy intermediate scrutiny.  The court dismissed Adams’s vagueness claim, however, because it found that a person of ordinary intelligence could determine the meaning of the law from its face; the court was not persuaded that PennDOT’s changing interpretation of the statute rendered the law vague.  The court went on to find, however, that because the law was not clearly content neutral on its face, the lack of any timeframe for the issuance of sign permits would potentially create a constitutional defect in the statute.

The court additionally dismissed substantive due process and equal protection claims as well.

Adams Outdoor Advertising Limited Partnership v. Penn. Dept. of Transp., No. 5:17-cv-01253, 2018 WL 822450 (E.D. Penn. Feb. 9, 2018).

A Street Preacher (though not the one in this case) | by frankieleon, flickr. Used subject to reuse label.

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.

[The following case centered on an ethnic slur and this post therefore includes two references to that slur.]

Reaffirming the First Amendment’s virtual prohibition on viewpoint discrimination, the Second Circuit recently held that New York state could not prohibit a vendor from participating in public lunch program simply because its name and menu featured ethnic slurs.

The case emerged from a dispute over access to the publicly owned Empire State Plaza in Albany, New York.  After years of contracting with a single vendor to supply food for a daily lunch program hosted in the plaza, New York’s Office of General Services (OGS) chose instead to feature a rotating line-up of food trucks—similar to Civic Center Eats program in Denver’s Civic Center Park—subject to a permitting regime.  Plaintiff Wandering Dago, Inc. (“WD”), which operates a food truck with the same name, applied to OGS for a vending permit.  Though the application proceeded normally at first, when OGS officials realized the term Continue Reading Offensive Name Not a Constitutional Reason to Ban Food Truck from Public Lunch Programs, Says Second Circuit

Earlier this month, the Sixth Circuit vacated a preliminary injunction preventing Lexington-Fayette Urban County Government (the “City”) from enforcing Ordinance 25/2017 (the “Ordinance”), which would regulate where unsolicited written materials may be delivered. Here is what you need to know about the procedural posture of the case:  The Ordinance would allow delivery of unsolicited written materials in six specific locations around a person’s residence or business but would prohibit driveway delivery.  Plaintiff, Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader, delivers The Community News free of charge to more than 100,000 households per week via driveway delivery.  In their motion for a preliminary injunction, Plaintiff claimed that the Ordinance would make their publication financially unfeasible and that it would violate the First Amendment if allowed to go into effect.  The lower court, after applying strict scrutiny analysis to the Ordinance, granted Plaintiff’s request for a preliminary injunction, finding Plaintiff was likely to succeed on the merits of its First Amendment claim.  The City timely appealed to the Sixth Circuit. Continue Reading Prohibition on Driveway Delivery of Unsolicited Materials Survives Intermediate Scrutiny of Sixth Circuit

Last week, the Tenth Circuit vacated a preliminary injunction preventing Denver International Airport from enforcing much of its public protest policy.  We reported on that injunction after it issued and now return to discuss its reversal on appeal.  In short, the unanimous appellate panel concluded that the airport could reasonably require a seven-day permitting period for protests, even if that requirement quashed most spontaneous demonstrations.

Denver International Airport’s Jeppesen Terminal

A bit of background, though, before we get any further: after the Trump administration unveiled its so-called “Muslim Ban”  (more formally, but less memorably, titled Executive Order 13769) suspending nationals from several predominantly Muslim countries from entering the United States, spontaneous protests broke out in airports nationwide.  Plaintiffs in this case joined in those protests at DIA, where Continue Reading Tenth Circuit: No Constitutional Need for Speedier Protest Permitting at Denver International Airport

After years of extending the power of aldermanic privilege to oversized billboard approvals, the Chicago city council recently dispatched with an aspect of that practice, to the evident disappointment of at least one of its beneficiaries.  Under that longstanding policy, an alderman (Chicago’s term for a city council member) could recommend, and the council would order, that the city’s building commissioner issue or deny a permit for an oversized billboard proposed in the alderman’s ward—the requirements of the city’s zoning ordinance notwithstanding.  In an effort to create a more cohesive scheme, however, the city council recently eliminated the portion of that policy which had allowed it to order approval of oversized billboards conflicting with the zoning ordinance.

This change created something of a predicament for Image Media Advertising because it also repealed the council’s prior approval of several Image Media signs, and the city’s building commissioner refused to Continue Reading District Court Rejects (Most) Challenges to Change in Chicago Sign Regulation Practice

A copy of one of the advertisements that the Archdiocese of Washington intended to place on WMATA buses. Source: Archdiocese of Washington.

The Catholic Church’s efforts to “Keep Christ in Christmas” have been stymied by a District of Columbia judge this holiday season.  Earlier this month, the federal district court in Washington rejected a request by the Archdiocese of Washington to enjoin the Washington Metropolitan Transit Authority’s enforcement of its transit advertising policy.  The Archdiocese wished to display, during the holiday season, an advertisement on WMATA transit vehicles that contained the language “Find the Perfect Gift” and a religious image.  The advertisement was intended to encourage readers to remember the religious underpinnings of Christmas.  WMATA rejected the advertisement because it violated the authority’s rule prohibiting advertising that advocates or opposes religion. Continue Reading Reason for the Season? D.C. Court Upholds Transit Authority’s Rejection of Religious Holiday Advertising

Does the First Amendment require a public transit system to run an ad alerting riders to the “Faces of Global Terrorism”?  No, concluded a federal district court last month.  The case, which remains on appeal, comprises the latest salvo in a years-long battle between the American Freedom Defense Initiative (AFDI), a nonprofit specializing in creating and litigating advertisements decrying the “Islamization of America,” and King County Metro Transit (Metro), the Seattle area’s mass transportation system.

After AFDI submitted what Metro rejected as a false and misleading advertisement, and the Ninth Circuit refused to overturn a district court order denying AFDI’s request for a preliminary injunction, AFDI returned with a new version of its ad.  That latest iteration Continue Reading First Amendment Still Doesn’t Require Seattle Transit System to Run “Faces of Global Terrorism” Ad