A billboard company’s challenge to the Troy, Michigan sign variance standards–which we reported on three years ago–has now resulted in an appellate decision that has the potential to greatly change commercial speech regulation as we know it.  Two weeks ago, the Sixth Circuit Court of Appeals ruled that the city’s sign code was an unconstitutional prior restraint and was content-based in its regulation of temporary signs.  The most remarkable aspect of the decision, however, was the court’s conclusion that any content-based commercial sign regulation should now be subjected to strict scrutiny analysis, which is nearly always fatal to a sign regulation.

The Troy sign ordinance allows property owners to post one ground sign of up to 12 feet in height and not exceeding 100 square feet, plus one additional ground sign, so long as the second sign is set back 200 feet from a right-of-way, is no more than 25 feet tall, does not exceed 300 square feet in area, and is not less than 1,000 feet from any other sign exceeding 100 square feet.  International Outdoor sought to install 672-square-foot, double-sided advertising signs in Troy that did not meet the foregoing requirements and sought a variance.  The criteria used by the city’s appeals board were threefold:  “(1) the variance would not be contrary to the public interest or general purpose and intent of this Chapter; and (2) the variance does not adversely affect properties in the immediate vicinity of the proposed sign; and (3) the petitioner has a hardship or practical difficulty resulting from the unusual characteristics of the property that precludes reasonable use of the property.”  The board denied the variance for failure to meet the criteria. Continue Reading In Billboard Company’s Challenge to a Michigan Sign Ordinance, the Sixth Circuit Finds That Content-Based Commercial Speech Regulations Are Now Subject to Strict Scrutiny

D.C.’s Black Lives Matter street mural. Source: CNN.

Late last month, a federal district court in Washington, D.C. dismissed First Amendment and other constitutional claims filed against the District by a non-Black Christian group pertaining to the now-famous “Black Lives Matter” mural painted on 16th Street.

Following widespread protests in U.S. cities in response to the death of George Floyd, a Black man, at the hands of white police officers in Minneapolis—and shortly after federal law enforcement officials cleared protesters in Lafayette Park with tear gas to allow for a photo opportunity for President Trump—D.C. Mayor Muriel Bowser directed the D.C. Department of Public Works to paint the words “Black Lives Matter” in large yellow letters on 16th Street.  The mural, which is in close proximity to the White House, was widely acknowledged as expressing support for protesters and the Black community and in protest of actions taken by the President. Continue Reading Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural

A housing encampment along Ben Franklin Parkway in Philadelphia. Source: Philly Voice.

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. Continue Reading District Court Denies Preliminary Injunction in Philadelphia Homeless Encampment Case

Panhandlers on a street median in Oklahoma City. Source: KGOU.

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. Continue Reading Tenth Circuit Strikes Down Oklahoma City Median Restrictions

One of the plaintiffs’ billboards in Austin, Texas. Source: Reagan National Advertising.

Last week, the U.S. Fifth Circuit Court of Appeals issued a ruling that the City of Austin, Texas’s sign ordinance was content based and unconstitutional due to the fact it impermissibly distinguished between on-premises and off-premises signs.  The Fifth Circuit’s ruling follows a similar ruling by the Sixth Circuit in a challenge to a Tennessee state law governing billboards, and sets up the possibility of further confusion in the area of billboard regulation.

In the Austin case, two billboard companies sought permits to convert existing billboards to digital signs.  The city denied the permits on the ground that its sign code prohibits new off-premises signs (i.e. signs that advertise business or services not located on the property on which the sign is located) and that conversion of existing billboards to digital faces would change the technology of a nonconforming sign in violation of the code.  The billboard companies challenged the denial in state court.  The city removed the case to federal court.  During the pendency of the litigation, the city amended its sign code to allow the substitution of noncommercial messages on any commercial sign in the city.  Following a bench trial, the district court determined that the sign code was content neutral and denied the billboard companies’ request for declaratory judgment. Continue Reading Austin, Texas Sign Ordinance Declared Content Based, Unconstitutional

This post was authored by Otten Johnson summer associate Laura Salter.  Laura is a rising third-year law student at the University of Colorado Law School.

In late May, the U.S. Supreme Court denied a Church’s application for injunctive relief from California’s temporary restrictions on religious gatherings in South Bay United Pentecostal Church v. Newsom. Governor Newsom’s executive order, which parallels mandates issued in several states since March, limited both religious and secular public gatherings in an attempt to curb the spread of COVID-19.  The executive order also allowed certain businesses to remain open–for example, grocery stores and hardware stores.

The order temporarily capped worship service attendance at 25% of building capacity or 100 attendees, whichever is lower. The applicants in South Bay filed suit under the Free Exercise Clause of the First Amendment, contending that secular activities impacted by the order, such as retail shopping or on-site office work, were afforded more generous occupancy caps than places of worship, and that the discrepancy amounted to unjustified and unconstitutional religious discrimination.  The Ninth Circuit Court of Appeals had previously denied the church’s application for an injunction pending appeal, after the district court in the case denied the plaintiff’s motion for a temporary restraining order.  The church sought a temporary injunction from the Supreme Court, which would have the effect of staying the executive order while the case was being litigated. Continue Reading Supreme Court Denies Church’s Application for Injunctive Relief in First Amendment Challenge to COVID-19 Restrictions

A billboard for Lion’s Den (not a truck trailer). Source: i70signshow.com.

In late April, in a case filed by an adult bookstore challenging the application of Kentucky’s Billboard Act to one of its advertisements, a federal judge of the Western District of Kentucky found the entire Billboard Act to violate the First Amendment.

Lion’s Den is a chain of adult “superstores” with locations along major highways throughout the Midwestern United States.  At one particular location along I-65 in Kentucky, Lion’s Den affixed one of its billboards to the side of a truck trailer, such that it was visible from the highway.  The Kentucky transportation department ordered Lion’s Den to remove the sign, on the grounds that it was not secured to the ground and located on a mobile structure and because the store lacked a permit for the billboard.  The basis for the state’s order was that the Kentucky Billboard Act prohibited the sign.  Under the statute, however, the regulations in question were only applied to off-premises signs. Continue Reading Federal Judge Rules Kentucky’s Billboard Act Unconstitutional In Its Entirety

Legacy Church in Albuquerque, New Mexico. Source: Legacy Church.

Last week, in one of the first judicial decisions addressing a First Amendment challenge to state-level social distancing requirements, a federal judge in New Mexico has denied preliminary injunctive relief to a church.  This outcome differs from another recently-decided case in Kentucky, where a district court enjoined enforcement of a city restriction that applied exclusively to drive-in church services.

Like most other states, New Mexico has taken significant steps to combat the coronavirus.  These actions began on March 11 with the declaration of a state of emergency, and urging from public officials to avoid gatherings and non-essential travel, and to engage in social distancing.  On March 24, the state ordered non-essential businesses to close, and prohibited indoor gatherings of more than five people, with a special exemption for houses of worship.  That was followed on March 27 by an order for recent travelers to self-quarantine.  On April 6, the state issued another order, this time prohibiting outdoor gatherings, but again exempting religious worship.  With Passover, Ramadan, and Easter approaching, the governor and health department encouraged religious organizations to use online methods of outreach.  On April 11, the day prior to Easter, the state issued a modified no-gathering order, this time including religious organizations in its sweep.

Legacy Church, which has nearly 20,000 members and locations in Albuquerque, Rio Rancho, and Edgewood, livestreamed its Easter services, but did not prohibit members from attending services in person.  The church has indicated that it plans to continue to hold in-person services during the COVID-19 pandemic.  The church filed its lawsuit against the state and its Secretary of Health, on the evening of April 11, and on April 14, filed a motion for a temporary restraining order allowing Legacy to conduct in-person services. Continue Reading Federal Court in New Mexico Denies Temporary Restraining Order in First Amendment Challenge to COVID-19 Restrictions

Earlier this month, the Fifth Circuit Court of Appeals vacated a lower court’s summary judgment order in order favor of a non-theist group that sought to place a nonreligious display in the rotunda of the Texas state capitol during the holiday season.  The lower court found that the state, in denying the group’s display, had engaged in viewpoint discrimination.  However, the court found that the order granting retrospective relief was improper, but directed the lower to court to consider the group’s claim for prospective relief and reinstated its claim that the state’s regulations constituted an impermissible prior restraint.

We reported on this case in 2017.  The facts of the case can be found on our earlier post.  Since our last report on the case, the district court entered a declaratory summary judgment in favor of Freedom From Religion Foundation, finding that Texas Governor Greg Abbott’s and Texas State Preservation Board Executive Director Rod Welsh’s interference in the matter constituted viewpoint discrimination.  However, the district court denied summary judgment on the group’s Establishment Clause claim and a claim against Abbott in his individual capacity. Continue Reading Fifth Circuit Remands in Texas Capitol Rotunda Display Case

An Adams Outdoor billboard in Madison. Source: Madison.com.

This week, a federal district court in Wisconsin ruled that Adams Outdoor Advertising’s claims that the Madison sign ordinance is unconstitutional could not survive summary judgment.  The ruling in the city’s favor is further support for the proposition that Reed v. Town of Gilbert does not upset longstanding commercial speech doctrine.

The Madison sign ordinance generally prohibits billboard advertising in most areas of the city.  Where they are permitted, billboards are subject to strict regulation as to setback, height, sign area, and spacing between signs.  The city also operates an exchange program, whereby owners of signs that are removed due to redevelopment can “bank” their sign area and obtain a permit in another area of the city.  The city also prohibits digital signs.

Beginning in 2016, Adams Outdoor sought permits for billboards in the city.  It first sought to avail itself of the sign exchange program with respect to one of its signs, but the city determined that the sign was not eligible for the banking program.  Adams Outdoor then submitted 26 applications to the city in 2017 seeking to modify or replace existing billboards.  The city denied 25 of the 26 permits on the grounds that the sign ordinance did not permit the modifications in question.  Adams Outdoor appealed 22 of the denials to the city’s Urban Design Commission, while also filing a lawsuit in federal court.  After the filing of the lawsuit, the city adopted a variety of amendments to its sign ordinance, to ensure that the ordinance complied with Reed. Continue Reading Billboard Company’s Challenge to Madison, Wisconsin Sign Code Fails