Nashville Pride Festival. Source: The Tennessean.

In a case that we reported on over a year ago, last fall, the Sixth Circuit Court of Appeals reversed a Tennessee judge’s entry of summary judgment in favor of the Nashville metropolitan government, finding instead that the relocation of protesters at Nashville’s Pride Festival violated the protesters’ First Amendment rights.

The facts of the case can be found in our prior post.  In short, this case arose from Nashville’s exclusion of anti-homosexuality preachers from the city’s annual Pride Festival, which celebrates the LGBT community of Nashville.

On appeal, the Sixth Circuit agreed with the district court that the area in question was a traditional public forum.  However, the appeals court found the relocation of the protesters to be content based.  Although Nashville contended that the relocation of the protesters was content neutral, because the speech in question interfered with the Pride Festival, its location obstructed ingress and egress to the Festival, and the protesters presented a danger to public safety due to the crowds that they drew.  The appellate court found that the first of these reasons was itself content based, since the protesters’ message was itself the reason that it interfered with the Festival.  In applying strict scrutiny, the Sixth Circuit found that the city had failed to demonstrate any compelling interest justifying its exclusion of the protesters from the Festival.

McGlone v. Metro. Govt. of Nashville, 749 Fed. Appx. 402 (6th Cir. 2018).

An example of San Francisco’s warning label. Image credit: Behavioral Science and Policy. Used subject to license.

A San Francisco ordinance requiring health warnings on advertisements for some sugar-sweetened beverages has suffered an early defeat.  On January 31, the Ninth Circuit ruled, en banc, that the district court should have granted plaintiff American Beverage Association’s request for a preliminary injunction to prevent the ordinance’s enforcement.

At issue was the ordinance’s required rectangular warning label—similar to such labels for cigarettes—occupying 20% of any advertisement for many sugar-sweetened beverages.  The text of the warning was to read as follow: “WARNING: Drinking beverages with added sugar(s) contributes to obesity, diabetes, and tooth decay. This is a message from the City and County of San Francisco.”  Arguing that the ordinance impermissibly compelled commercial speech, the American Beverage Association sued and sought a preliminary injunction against its enforcement.

After the district court denied the requested preliminary injunction, the Ninth Circuit reversed.  The court concluded that, despite some recent uncertainty regarding the appropriate test, the Supreme Court’s decision in Zauderer v. Office of Disciplinary Counsel, 471 U.S. 626, 651 (1985), required an inquiry into whether San Francisco’s warning label was (1) purely factual, (2) non-controversial, and (3) not unjustified or unduly burdensome.

In the court’s view, the ordinance was likely to fail the Zauderer test’s third prong because the warning label was unduly burdensome.  The record indicated that a warning label half the size (i.e., 10% of the advertising area) would adequately accomplish the city’s primary objectives of warning consumers about the harms of sugar-sweetened beverages and reducing their consumption.  Moreover, San Francisco failed to show that the sizeable, contrasting label would not “drown out” the rest of the advertisement and would not effectively rule out the possibility of having an advertisement in the first place.  The panel cautioned, however, that it did not intend to set a per se rule that 10% warning labels were acceptable while 20% labels were not.

Three judges concurred in the judgment but departed from the majority’s reason.  Judge Ikuta would have instead applied the framework from the Supreme Court’s 2018 decision in National Institute of Family & Life Advocates v. Becerra,  ___U.S. ___, 138 S.Ct. 2361 (2018).  Chief Judge Thomas would have concluded that the warning was not “purely factual.” And Judge Nguyen disagreed with the majority’s application of Zauderer to speech that was not false, deceptive, or misleading but still concluded that a preliminary injunction was appropriate.

Full opinion available here: https://law.justia.com/cases/federal/appellate-courts/ca9/16-16072/16-16072-2019-01-31.html

Early this month, the federal district court for the Southern District of New York ruled that a New York City law requiring food service industry employers to provide a payroll deduction system for their employees to make donations to non-profit organizations did not violate the First Amendment rights of such employers.

New York City’s law became effective in late 2017.  Fast food establishments are required to create and maintain deduction systems.  Upon request from an employee, the establishment must deduct a donation to a non-profit organization from the employee’s pay check and remit it to the designated organization.  Non-profit organizations that receive funds through the system are required to reimburse employers for the cost of maintaining the deduction system, if requested by the employers. Continue Reading Court Upholds New York City’s Fast-Food Payroll Deduction System For Donations

We at the Rocky Mountain Sign Law are pleased to announce the following webinar from our friends at the American Planning Association’s Planning and Law Division:

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning and Law Caselaw Update on Thursday, January 31st, 2019 from 1:00 to 2:30 p.m. ET. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

The U.S. Supreme Court, federal courts, and state courts all play an important role in shaping planning throughout the country. This annual review delves into the important cases, the decisions that were made — or not made — and how this will affect planning at many levels.  It will also consider new legislative developments, both at the local and federal levels, which may influence the future of planning.  Speakers are John Baker, Esq., founding attorney of Greene Espel,  Deborah M. Rosenthal, Esq., FAICP, partner at Fitzgerald Yap Kreditor LLP, and Alan Weinstein, Esq., Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law and Professor of Urban Studies at CSU’s Maxine Goodman Levin College of Urban Affairs.

Register here

Photo by Peter Kaminski, used pursuant to Creative Commons 2.0 license.

Fewer than six months after it was enacted as an “emergency” measure, a Cincinnati ordinance singling out billboards for special taxes has succumbed to a constitutional challenge. The ordinance, which met legal headwinds from the start, transparently aimed to make life miserable for the city’s billboard operators and consisted of two primary components: (1) a special tax on revenues from billboard advertising and (2) a hush provision preventing those operators from telling advertisers about the tax.  An Ohio judge wasted little time in finding both provisions unconstitutional and Continue Reading Cincinnati “Billboard Tax” Found Unconstitutional Just Months After Enactment

Ted Pelkey’s middle finger to the Town of Westford. Source: boston.com.

Fortunately for those of us in the practice of First Amendment-related law, expressive conduct can be wildly entertaining.  And in Westford, Vermont, a local land use dispute has turned into a full-blown First Amendment fiasco.

Apparently operating on the old premise of “I’m from Vermont, I do what I want,” Ted Pelkey, a resident of Westford, decided to pursue a creative approach to expressing his First Amendment rights by erecting a decorative, 16-foot-tall, 700-pound wooden statue on his property.  That statute was, however, of a middle finger.  The statue, aimed directly at the local town hall, was erected in response to the Town’s denial of Pelkey’s application to construct a garage on his property.

While the particulars of the story can be found here, it appears that Westford’s sign regulations do not prohibit Pelkey’s statue.  The Westford sign code is contained in Section 326 of the Town’s Land Use and Development Regulations.  Pelkey’s middle finger meets the height and size limits for signs, and it may even be exempt from regulation as a “residential decorative sign.”  Although some might question whether the town should allow the sign, Supreme Court case law going back 50 years tells us that a middle finger–and the message it entails–may not be banned because it offends some community members.  So it seems as though Westford will have difficulty requiring Pelkey to remove his “decorative sign.”

Merry (expletive) Christmas, Westford!

New Jersey bars may now post signs this like this one. Source: steezdesign.com.

Last month, a federal court ruled that New Jersey’s prohibition on “BYOB” advertising—that is, advertising by drinking and entertainment establishments allowing patrons to bring their own alcoholic beverages—violated the First Amendment.  As a result of the court’s ruling, Garden State restaurants will now be allowed to post advertisements encouraging their patrons to bring their own wine and beer.

New Jersey law allowed patrons to bring wine or beer onto the premises of establishments that are not licensed to serve alcoholic beverages, but prohibited such establishments from advertising that it was permissible to do so.  An Atlantic City nightclub, Stiletto, filed suit in federal district court against Atlantic City and the state, seeking to invalidate the state law.  Stiletto wished to advertise that patrons could bring their own beverages to the nightclub. Continue Reading New Jersey Prohibition On “BYOB” Advertising Found Unconstitutional

Earlier this fall, a federal district court in California entered an order dismissing a challenge to election sign regulations promulgated by the City of Coalinga, California.  Coalinga had a sign regulation that prohibited the display of election signs more than 60 days prior to and more than seven days after an election.  June Vera Sanchez and the Dolores Huerta Foundation sought to display political messages outside of the election season, and challenged the regulation on First Amendment grounds in an action filed in June 2018.  Following the filing of the lawsuit, in July 2018, the city amended its regulations to withdraw the challenged election sign regulation.  In August 2018, the city filed a motion to dismiss, arguing that the plaintiffs lacked standing to bring their claim and that the action was moot. Continue Reading California City Successfully Moots Challenge By Withdrawing Election Sign Rules

The Dallas Convention Center. Source: dallassports.org.

In October of this year, the Fifth Circuit Court of Appeals ruled that an operator of an adult entertainment convention called “Exxxotica” had standing to challenge the City of Dallas, Texas’s 2016 decision not to enter into a contract allowing the event. The appeals court’s decision reversed a prior ruling by the federal district court dismissing the case.

In 2015, Three Expo Events, L.L.C., held the Exxxotica event at the Dallas Convention Center. The event, which featured near-nudity and a variety of suggestive activities, caught the attention of community members who believed that the event was immoral. These protesters then asked Dallas’s mayor to prohibit a second annual convention, and the mayor obliged. In 2016, the city refused to renew the event’s contract, and the city council approved a resolution prohibiting the same. Three Expo Events then filed suit, alleging First Amendment violations.

Because the city council’s resolution only prohibited Three Expo Events, and not its subsidiary—which would have been the party to the convention center contract—the district court found that Three Expo Events lacked standing to challenge the city’s decision. Continue Reading Appeals Court Finds That Dallas Adult Convention Case Can Proceed

Donald Burns’s current home in Palm Beach. Source: curbed.com.

Earlier this year, after a telecom millionaire with a checkered past challenged the Town of Palm Beach, Florida’s architectural review ordinance on First Amendment grounds, a federal magistrate judge in Florida issued a report and recommendation finding that the house proposed by the applicant was not entitled to First Amendment protection.  The court then entered summary judgment in favor of the town.

Donald Burns sought to construct a new, modern home in a neighborhood otherwise characterized by more traditional architecture.  He filed an application in 2014 to demolish his existing home and construct the new house.  His self-declared intent was to distinguish himself from his neighbors and to communicate modernist design elements to the community.  Neighbors opposed the project.  After reviewing several iterations of the proposed design, the town’s Architectural Commission denied Burns’s application in 2016.  Burns then filed suit, alleging violations of the First Amendment as well as claims under the Due Process and Equal Protection clauses of the Fourteenth Amendment.

The court first iterated that it was the plaintiff’s burden to establish that the activity in question was expressive conduct protected by the First Amendment.  The court considered the Eleventh Circuit’s two-part test for determining whether conduct receives First Amendment protection, which requires analyzing whether the actor intends to communicate a message and whether there is a “great likelihood” that a reasonable viewer would understand the conduct is communicative.  The court also considered case law on the distinction between commercial merchandise and expressive products.  The court noted that only two prior cases had addressed questions of whether architecture constituted protected speech:  a 2004 federal district court case in Nevada held that residential architecture was not protected, while a 1992 Washington case found that religious architecture was sufficiently expressive so as to receive First Amendment protection.

Applying the test typically applied to determine whether merchandise is expressive, the court found that Burns’s proposed home was not expressive conduct deserving of First Amendment protection.  The house, in the court’s eyes, had a predominantly non-expressive purpose:  it was intended for residence by an individual or family.  Additionally, the court found that it was unlikely that a reasonable person would view the house as expressive conduct.  Accordingly, the court declined to review the architectural review ordinance under the First Amendment.

The district court adopted the magistrate’s report and recommendation in late September.  The case is now on appeal to the Eleventh Circuit.  This case is of particular interest to First Amendment observers, as cases involving questions of whether architecture is protected under the First Amendment are few and far between.

Burns v. Town of Palm Beach, No. 17-CV-81152, 2018 WL 4868710 (S.D. Fla. Jul. 13, 2018).