One of the trickier aspects of First Amendment jurisprudence has always been deciding whether and when conduct receives constitutional protection.  Regulations that involve words or speech are easy enough.  But does the First Amendment protect the heap of garbage your neighbor piled in his front lawn to protest the city’s tardy trash collection?  (Probably, but the city can constitutionally regulate it anyway.)  Does the Constitution care if you want to direct a spotlight against your neighbor’s home to express your displeasure with his trash heap?  (Harder to say, but probably not.)  These and other questions continue to vex courts assessing the First Amendment’s reach.

Enter Donald Burns and his quest to build a massive midcentury mansion amidst minimally more modest mansions in Palm Beach, Florida.  (We’ve reported on his effort before.)  Palm Beach considers itself “a worldwide synonym for beauty, quality and value,” and to preserve that reputation, it applies architectural review to new homes.  Its standards observe that the “essential foundation of beauty in communities is harmony” and therefore prohibit structures that are too dissimilar from the surrounding buildings.

Dissatisfied with his 10,000 square-foot mansion, Burns approached Palm Beach about replacing it with a Continue Reading 11th Circuit: First Amendment Doesn’t Protect Florida Man’s Proposed Midcentury Mansion Because No One Can See It

On Monday, the U.S. Supreme Court granted the City of Austin, Texas’s petition for writ of certiorari in a case that may determine the legal fate of states’ and local governments’ efforts to restrict billboard advertising.

In the case, which we reported on previously, Austin denied permits to two billboard companies that were seeking to convert existing, static billboards to digital signs.  The billboard companies challenged, and the city removed to federal court.  The district court rejected the billboard companies’ challenge.  The Fifth Circuit Court of Appeals reversed, holding that the city’s sign code, which prohibited the erection of new off-premises advertising signs (i.e. signs that advertise goods and services that are not available on the property on which the sign is located) and further prohibited technological changes to nonconforming signs, violated the First Amendment.  The appeals court concluded that the regulation was content based.  Content based laws implicate the Supreme Court’s 2015 ruling in Reed v. Town of Gilbert, where the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect.  The appeals court’s holding in the City of Austin case was premised upon the fact that the off-premises advertising restriction related specifically to the content of a sign.  Under the sign code, if the sign’s message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited.  This, the court found, was impermissible. Continue Reading U.S. Supreme Court to Review Austin Billboard Case

Some things go together: funnel cakes, summer crowds, and street vendors, for instance.  The prospect of eternal damnation, on the other hand, tends to dampen the mood.  So it was that several Davenport, Iowa police officers escorted street preacher Cory Sessler out of the city’s long-running “Street Fest,” leaving him to condemn the throngs from afar.  Citing violations of his First Amendment rights to free speech and the free exercise of religion, he sued both the officers and city.  The district court denied his request for a preliminary injunction, and in March, the 8th Circuit upheld that decision.

Begin by recalling that, pre-pandemic, we used to gather in the tens of thousands to gnaw on turkey legs while browsing misshapen pottery and paintings of old barns.  Twenty thousand frequented Davenport’s annual Street Fest, which event organizers ran pursuant a city permit allowing them to take over selected streets for several days each July.

Sessler recognized these festival goers as wayward souls, and, bullhorn in hand, descended upon the event to remind them, “if you are involved in . . . sex out of marriage, homosexuality, drunkenness, night clubbing . . . you are destined for a burning hell.”  This naturally disrupted the nearby, fee-paying juggling and magic acts, and several officers proposed Sessler preach elsewhere.  Although Sessler moved to a new location, festival goers continued to find his messages disturbing.  Officers asked he preach across the street from the festival’s entrance.  Sessler agreed, and continued his work for a few hours.

Sessler eventually sued the city, claiming that he intended to preach his message again and that the city’s practices violated the First Amendment.  He also sought a preliminary injunction to prevent the city from enforcing its special events policy against him.  As applied, Sessler argued, the city’s special events policy prioritized paying vendors’ speech over his own.

The trial court denied Sessler’s requested injunction, and on appeal, the 8th Circuit did as well.  While the panel recognized Sessler’s complaints as reasonable at first blush, it concluded that Sessler’s First Amendment rights did not encompass the right to disrupt a permitted event.  The panel also concluded that Sessler had failed to demonstrate an irreparable harm because he had no intention of becoming a vendor at a permitted event and identified only vague plans to speak at future events—something he had been allowed to do from different public property during Street Fest.  Sessler therefore failed to demonstrate any entitlement to injunctive relief.

Sessler v. City of Davenport, Iowa, 990 F.3d 1150 (8th Cir. 2021)

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.

Continue Reading Massachusetts Supreme Court Strikes Down State Panhandling Law

Today, we depart from our regularly scheduled sign-litigation programming to explore a development in the realm of Anti-SLAPP statutes—laws protecting the public from “Strategic Lawsuits Against Public Participation.”

If you’re already familiar with Anti-SLAPP statutes, skip ahead to the next paragraph.  If you aren’t, here’s a primer:  SLAPP suits prototypically arise when more powerful organizations bring doubtful claims against citizens who’ve criticized them, knowing the costs of litigation alone will silence the critics.  Most, but not all, states have Anti-SLAPP laws, and they all layer protections on top of the First Amendment’s right to petition.  Generally, Anti-SLAPP statutes supply defendants with a special motion to dismiss that operates in two steps:  first, the defendant must show that they engaged in speech, debate, or petitioning activity on an issue of public interest, and second, if they succeed, then the plaintiff must prove that its lawsuit enjoys a reasonable shot at success.  If it can’t, the suit is dismissed, and the defendants receive an award of attorneys’ fees and costs.  It’s strong medicine for would-be plaintiffs.

That brings us to a recent Nevada Supreme Court case:  Kosor v. Olympia Companies, LLC.  Olympia, a real estate developer, sued Michael Kosor, Jr., a resident in one of its developments, for defamation after Mr. Kosor criticized Olympia in public meetings and online.  His complaints concerned Olympia’s control of the development’s HOA, which he likened to “foreign dictatorship.”

After Olympia filed sued, Mr. Kosor sought dismissal under Nevada’s Anti-SLAPP statute, and the trial court granted it.  The question before the Nevada Supreme Court was whether the Anti‑SLAPP statute applied at all.  The Court concluded it did, providing guidance that could easily be applied in other states.

First, the court concluded Mr. Kosor’s statements were “made in direct connection with an issue of public interest.”  Although the case concerned a dispute between a private citizen and a private company, the court reasoned that issues of HOA governance, as well as alleged malfeasance and mismanagement, could affect Mr. Kosor’s 3,000-member community and were therefore sufficiently public.

Second, and more interestingly, the court concluded that Mr. Kosor’s statements on Nextdoor.com satisfied statute’s requirement that the protected statements be made in a “place open to the public or in a public forum.”  (Nextdoor is neighborhood-based social media platform that launched in 2011 with the prediction, “When neighbors start talking, good things happen.”)  Private websites don’t always, or even often, qualify as a public forum, but the court viewed Nextdoor as a place for the public to exchange ideas and solicit discussion.  Thus, Mr. Kosor’s statements in that forum received the same protections under the statute as they would have if he’d made them at a city council meeting.

The court ultimately remanded the case to the district court to make findings as to whether Mr. Kosor had made his statement in good faith (another statutory requirement) but assumed the statute would otherwise apply.

The case provides a reminder to real estate developers and managers:  retaliating against nettlesome community members can come at a high price.

Kosor v. Olympia Companies, LLC, 478 P.3d 390 (Nev. 2020)

In a recent order on cross motions for summary judgment, a federal district court in Florida reiterated the high bar to upholding prior restraints on speech.  Plaintiffs Florida Beach Advertising and its owner and operator David Duvernay were cited on three occasions for violating a section of the City of Treasure Island’s code that requires any person to obtain a license before displaying a sign, banner, or advertisement.  They brought claims that the code violated the First Amendment—facially and as applied—and was preempted by state statute.  Although the plaintiffs challenged the entire code, the court found they had standing only to challenge the specific section they were cited for violating.  While the court quickly ruled for the City on the preemption challenge, it provided more robust analysis of the First Amendment claims.

Continue Reading District Court Strikes Down Florida City’s Sign License Requirement

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.

Continue Reading Court Dismisses RLUIPA and Equal Protection Clause Case for Lack of Standing

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.

Continue Reading Eleventh Circuit Remands Some RLUIPA and Related Claims in Buddhist Center Zoning Permit Case