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

In a case of first impression within the Sixth Circuit, a district court held that a city’s interest in protecting the exercise of a permit holder’s First Amendment rights is—at least in some circumstances—a significant interest supporting the content-neutral regulation of speech.

In 2018, Johnson City, Tennessee granted a Special Events Permit to LGBTQ organization TriPride to hold a parade and festival in a city park. At the festival, city officers enforcing the Special Events Policy moved religious protesters from blocking the park’s entrance. The protesters filed suit, claiming that this allegedly arbitrary enforcement violated their rights to free speech and free exercise of religion.

Continue Reading District Court Upholds Tennessee City’s Enforcement of Policy Against Special Event Interference

Earlier this month, the court held that the City of Norman, Oklahoma may enforce a disturbing-the-peace ordinance against anti-abortion protesters while their litigation claiming it violates the First Amendment is pending.  The ordinance prohibits “disturb[ing] the peace of another . . . by [p]laying or creating loud or unusual sounds.”  City police had cited and threatened to cite the protesters for violation when their amplified speech on sidewalks outside an abortion clinic could be heard inside the clinic.  The protesters claimed that the ordinance violates their rights to free speech and free exercise of religion, facially and as applied, but the district court denied their request for a preliminary injunction.

Continue Reading Tenth Circuit Upholds Denial of Preliminary Injunction Against Enforcement of Disturbing-the-Peace Ordinance

As a company that sells advertising space on benches in public areas, Bench Billboard Company has a long and storied litigation history against municipalities in Ohio and Kentucky.  In this most recent iteration, the BBC challenged the constitutionality of Colerain Township’s (a Cincinnati suburb) restriction on signage in its right of way after the Township attempted to

A bench advertisement. Source: Wikimedia Commons, Orin Zebast

remove BBC’s signs.

 

Noting that both the Ohio Appeals Court and the Sixth Circuit had answered virtually identical questions in two earlier BBC cases, the panel dispatched with the challenge in short order.  Quoting a 2016 decision, the panel concluded that Colerain held a substantial interest in maintaining its right-of-way, restrictions on signage directly related to those purposes, and BBC enjoyed numerous other avenues for displaying its signage.  The court also made the standard recitations about governments’ ability to regulate commercial signage in the interest of preserving aesthetics, addressing traffic safety, and reducing visual clutter.

BBC also raised concerns regarding Colerain’s restrictions regarding signage on private property, but the court made quick work of these too.  Somewhat curiously, the panel did not follow the standard Central Hudson or intermediate scrutiny rubric for commercial or content-neutral restrictions.  Instead, it upheld the township’s private property signage restrictions as applied to BBC, reasoning that Colerain had provided ample evidence of the traffic and aesthetic concerns it sought to regulate and its restrictions therefore bore a substantial relationship to health, safety, and welfare.

Colerain Twp. Bd. of Trustees v. Bench Billboard Co., 2020-Ohio-4684

Simi Valley, California, like many cities, bans mobile advertising displays on public streets.  It also, however, exempts certain authorized vehicles from the general ban.  The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.

A mobile billboard roaming the streets. Source: Wikimedia Commons, SammySosaa

Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation.  Following that conclusion, it returned the case to the district court for further proceedings to determine whether Continue Reading Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny

In a midnight per curiam opinion that generated several concurring and dissenting opinions, the Supreme Court recently enjoined the state of New York from enforcing certain COVID-19 restrictions against religious institutions.  Although the injunction is limited to the pendency of the underlying appeal in the Second Circuit, it represents the Court’s most thorough treatment of pandemic-related restrictions on religious exercise to date.  It also marks an about-face from Chief Justice Roberts’  solo concurrence to the Court’s denial of a similar application for injunctive relief earlier this year.  In May, the Chief Justice deferred to the coordinate branches in dealing with the pandemic.  Now, however, the full Court has grown more skeptical of pandemic restrictions affecting religious exercise, and lower courts will probably follow suit.

The facts are as follows:  New York has adopted a tiered system of pandemic restrictions.  The state applies those restrictions to a number of geographic districts based on the severity of the pandemic in those districts.  Restrictions for a “red zone” are more severe than those for a “yellow zone” and so on.  New York’s regulations also distinguish between “essential” and non-essential business, and further identify religious institutions among the various uses regulated.  Religious institutions are not an “essential” use, though they receive preferential treatment relative to other large, indoor gatherings.  In “red zones” no more than ten people may attend each religious service.  In “orange zones,” the regulations cap attendance at twenty-five, irrespective of building capacity.  “Essential” businesses, which include acupuncture clinics and liquor stores, face no such capacity restrictions.

The per curiam opinion (which legal writing analysts believe was authored by Continue Reading Supreme Court Sides with Religious Institutions Against New York Restrictions on Worship Services

Earlier this year, the federal Court of Appeals for the Eleventh Circuit upheld a district court’s denial of a preliminary injunction requested by a street preacher who alleged that a county government had infringed upon his First Amendment rights.

Adam LaCroix is a street preacher who discusses “Biblical principles of sexual morality” outside public venues in Lee County, Florida, including JetBlue Park, where the Boston Red Sox train.  The venue is owned by the county government, but leased to the Red Sox.  The team in turn allows special events, such as concerts, to occur at the facility.  LaCroix attempted to preach during one such event, in which only concert patrons were allowed to enter the property, and was told that he could not do so.

LaCroix then filed suit in federal district court on First Amendment grounds, claiming that the ordinance was content based and that the government left police officers with unbridled discretion.  He sought a preliminary injunction, which was denied on the grounds that LaCroix lacked standing and that he was not entitled to a preliminary injunction.  On appeal, the Eleventh Circuit agreed with the district court’s analysis.  The Eleventh Circuit concluded that LaCroix failed to specifically identify where his future free speech activity would be located, and thus did not establish a concrete injury in fact.  Because the court concluded that the plaintiff failed to show that he was presently or would be subject to a permitting ordinance for this type of speech, the appeals court confirmed that the case should be dismissed.

LaCroix v. Lee County, 819 Fed. Appx. 839 (11th Cir. 2020).

In a victory for plaintiff B&G Opa Holdings’s “Klub 24,” a federal district court recently struck down an ordinance used to shutter a strip club that briefly opened in a suburb north of Miami.  Three months after an Opa-locka, Florida licensing clerk stamped “approve” on B&G’s application for a “playhouse,” the city returned to shut down the operation.  Opa-locka explained that it had failed to run that use through its adult-entertainment special use permitting scheme and that Klub 24 was therefore operating without a license.

Klub 24’s Chained Doors Following City Shut-Down. Source: Miami Times

Litigation followed.  Adopting the magistrate’s recommendation, the district court granted summary judgment on B&G’s claims that the city’s ordinance unconstitutionally prohibited all adult-entertainment uses and also gave the city too much discretion to prohibit such uses.

In what appears to have been some administrative bungling—and perhaps some misdirection from B&G—the city first allowed Klub 24 as an “other club” in January 2018.  When it became clear that Klub 24 was in fact a Continue Reading Florida City’s Special Use Restriction on Strip Clubs Held Unconstitutional

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