Large religious gatherings, such as Catholic masses, may result in virus transmission, but may be difficult for U.S. governments to prohibit. Source: Catholic Sun.

Since the rest of the world seems to be taking a break from regular activities amid the COVID-19 outbreak, we’ll take a break from our regularly-scheduled programming to offer our view of the pandemic through the lens of our favorite topic:  First Amendment rights.

China’s response to the outbreak in Wuhan is well-documented.  Mandatory quarantines, citywide shutdowns, prohibitions on gatherings, and other such actions were implemented swiftly.  We in the United States have not yet seen such a response, and there’s no telling whether such a response will be needed.  But because we enjoy more individual liberties than do Chinese citizens, what might be the legal consequences of some of these actions?  We offer some thoughts below for state and local regulators: Continue Reading COVID-19 and the First Amendment: Thoughts for State and Local Regulators

In a case involving violations of nearly every First Amendment protection for speech in public places, a federal court recently enjoined enforcement of new Chicago restrictions on speech in the city’s famed Millennium Park.  Evidently hoping to safeguard quiet contemplation of the “Bean” (pictured here) and all but a few other areas of the park, the City enacted an ordinance prohibiting a range of speech.

Visitors contemplate Cloud Gate in Chicago’s Millennium Park. Source: Wikimedia Commons, Sharon Mollerus

The ordinance outlawed conduct “that objectively interferes with visitors’ ability to enjoy the Park’s artistic displays” and the “making of speeches and the passing out of written communications” outside a few specified areas.  It did not, however, provide any guidance as to how to enforce those prohibitions—leading to an astonishing interaction in which a park employee explained that religion could not be discussed in the park.  On February 20th, the U.S. District Court for the Northern District of Illinois concluded these provisions violated the First Amendment and issued a preliminary injunction barring their enforcement.

The parties challenging the ordinance were a group of college-student evangelists and petition circulators whom the city had rebuffed in their attempts to champion their causes in Millennium Park.  Among Chicago’s various attractions, the park held special appeal for the challengers because Continue Reading Federal Court Enjoins Chicago Park Speech Regulations

Our friends at the APA Planning and Law Division will host a webinar on Deregulatory Trends in Land Use later this month.  We encourage our readers to register!  A description of the webinar and registration link follows:

Rising housing costs and environmental concerns have led to efforts to “upzone” communities by deregulating limits on higher-density residential uses, providing density incentives for developments that include affordable housing, or eliminating single-family zoning altogether. Are these deregulatory trends a sign of a fundamental shift in land-use philosophies?

This webinar will discuss recent and proposed legislation in Minnesota and California that illustrate these trends, as well as the potential legal issues that come with such legislation.

https://www.planning.org/events/eventsingle/9194599/

A sign welcomes visitors to Bentley Manor in Shavano Park. Source: mytexashomeresource.com

It is a rare free speech case where a court finds a regulation content based, but still upholds the regulation.  That very scenario played out in a federal district court in Texas, when it upheld the City of Shavano Park’s sign regulation prohibiting certain banner signs.

Shavano Park, a suburb of San Antonio, has a sign code that controls the placement of signs on private property.  The code allows one temporary sign per residential lot, with some additional allowances when properties are for sale or during election seasons.  The code also allows the placement of banner signs in residential zoning districts, with some limitations.  These limitations include that such signs may be erected by a homeowners’ association, they may be placed at entrances to residential neighborhoods, no more than one banner sign is allowed per owner, and banner signs are only permitted in the week before the first Tuesday in October, which coincides with National Night Out.  The sign code’s stated rationale for its restrictions focuses largely on aesthetics. Continue Reading Texas City’s Banner Sign Limitation Found Content Based, But Survives First Amendment Challenge

A marine mammal swims at Six Flags in Vallejo, California. Source: San Francisco Chronicle.

Last week, the federal Ninth Circuit Court of Appeals found that Vallejo, California’s requirement that a person obtain a permit before using a sound amplification is likely unconstitutional.  The court’s decision reverses the district court’s order denying the plaintiff’s motion for preliminary injunction, and allows the case to proceed to additional stages of litigation.

Joseph Cuviello is an animal rights activist in Vallejo who wished to protest alleged animal mistreatment at Six Flags Discovery Park, an amusement park.  Cuviello has been active in protesting Six Flags since 2006.  In 2014, Cuviello decided to begin protesting on a public sidewalk outside of the park, using a bullhorn.  Vallejo, however, requires a permit for the use of sound amplification devices, and the city imposes restrictions on the use of such devices.  Cuviello filed suit against the city, challenging the permit requirement as an unconstitutional prior restraint, and the ordinance as impermissibly vague and content based.  Cuviello eventually abandoned the latter arguments, and the court’s decision focused entirely on the prior restraint question. Continue Reading Ninth Circuit Finds That Permit Requirement For Bullhorns Violates First Amendment

Last week, the Tenth Circuit Court of Appeals issued an order denying a motion by the plaintiff in the case of Evans v. Sandy City for an en banc rehearing.  In ruling on the motion, the court issued a revised opinion.  In the revised opinion, the court reaffirmed that Sandy City, Utah’s prohibition on sitting or standing in a street median narrower than 36 inches was constitutional.  The court reiterated that the restriction was content neutral, and that it was narrowly tailored to the city’s interest in protecting public safety.

Evans v. Sandy City, ___ F.3d ___, 2019 WL 6519431 (10th Cir. Dec. 3, 2019).

A Broke Ass Phone location in Strongsville, Ohio. Source: Broke Ass Phone.

In a somewhat entertaining case out of Boardman Township, Ohio, the state court of appeals has ruled that a business called “Broke Ass Phone” may display its sign under the Boardman Township zoning ordinance, which otherwise prohibits obscene or offensive signs.

Broke Ass Phone is a company that specializes in repairing broken smartphones and other devices.  In 2015, the company applied for a sign permit in Boardman to allow the company to post its business sign.  The township zoning inspector denied the permit application, finding that it violated the township code provision prohibiting obscene signs.  The applicant then appealed the decision to the township’s Board of Zoning Appeals.  In 2017, the board denied the appeal.  The company then appealed the denial to the local common pleas court, asserting First Amendment arguments.  The common pleas court affirmed the decision of the zoning appeals board, and the company appealed to the state appeals court. Continue Reading Ohio Appeals Court Finds That “Broke Ass Phone” Is Not Obscene, May Be Displayed On A Business Sign

Murals in Oakland, California. Source: Oaktown Art.

In August, the Ninth Circuit Court of Appeals affirmed a district court’s rejection of claims by the Building Industry Association of the Bay Area that the City of Oakland’s program requiring developers to contribute 1% of the cost of a development project to public art violated the First Amendment.  In an unpublished opinion, the circuit court concluded that, although such a program implicated free speech concerns, it did not compel any particular speech.  The court noted that the program offered developers wide latitude to determine how they might incorporate artwork into their projects.  The court agreed that the program was related to the city’s interests in encouraging aesthetic interest in the community. Continue Reading Federal Court Denies Challenge to Oakland, California’s “1% for Art” Program

A billboard in Texas. Source: Austin American-Statesman.

A federal district court in Texas recently found that the City of Cedar Park’s sign code was content based and unconstitutional due to its failure to distinguish between commercial and noncommercial billboards.

A billboard company sought permits to convert existing billboards to digital signs, as well as to erect new signs.  The city denied the permit applications for failure to comply with the city’s sign code, and the billboard company sued.  In its lawsuit, the billboard company argued that the city’s decision to distinguish between on- and off-premises signs was content based, because it applied to noncommercial signs in the same manner as commercial signs.  Generally speaking, the government may not distinguish between the content or message of various noncommercial signs.  Per the billboard company, a code enforcement officer would be required to determine the permissibility of the sign based on its content, in violation of the First Amendment.  The federal district court agreed and granted summary judgment in favor of the plaintiff.  About a month ago, the court denied the city’s motion for reconsideration. Continue Reading Texas City’s Sign Code Found Content Based, Unconstitutional

This past summer, the Seventh Circuit Court of Appeals found that a billboard company’s challenge to a billboard restriction in Bellwood, Illinois was mooted by the fact that the company lost its lease on the property that it intended to construct a billboard.  The court affirmed dismissal of the company’s First Amendment, equal protection, and antitrust claims.

In 2005, Paramount Media obtained leasehold rights to a property in the village abutting I-290, a high-traffic interstate corridor outside of Chicago.  Although it sought the necessary state permits for a billboard, it failed to seek permits from the village.  In 2009, the village amended its sign code to prohibit new billboards.  The village later amended the code again to allow billboards on village-owned property.  Paramount then sought to lease village-owned property along the interstate, but was rebuked, as the village had leased its property to another billboard company. Continue Reading Billboard Company Loses Suit Against Illinois Village