The City of Boston flies three flags in City Hall Plaza just outside the Boston City Hall:  those of the United States, the Commonwealth of Massachusetts, and the City of Boston.  From time to time, and at the request of civic groups, organizations, businesses, and others, Boston replaces its flag with another.  The Pride Flag has flown above City Hall, and so too the flag of a community bank.

When Harold Shurtleff approached the city about hosting a Christian event and hoisting a “Christian flag,” however, the city demurred.  A Christian event in City Hall Plaza was fine, officials explained, but raising the religious flag could create Establishment Clause concerns, they worried.  The city therefore rejected Shurtleff’s request.

Litigation followed, with Shurtleff arguing that the denial abridged his First Amendment right to free speech. Both the district court and the First Circuit sided with Boston, reasoning that the city could control access to the flagpoles as a matter of government speech.  The Supreme Court reversed, with all nine justices joining in the judgment.

Although the government speech doctrine has expanded in recent years across cases like Pleasant Grove City v. Summum (monuments) and Walker v. Texas Div., Sons of Confederate Veterans (vanity license plates), the Court identified the government’s control over the medium and the message as a significant consideration tying the doctrine together.  That factor proved dispositive here.  While Pleasant Grove City and the State of Texas actively controlled the monuments and license plates they selected, Boston’s involvement with the City Hall Plaza flagpoles was limited to processing applications and avoiding scheduling conflicts.  Until it turned down Shurtleff’s proposal, the city had never declined to raise another flag.  Boston also lacked any policy as to what flags it would fly or what messages they could communicate, and in fact described the plaza as among the city’s “public forums.”  None of those facts established the requisite control over the medium and message for Boston to assert that the flags were government speech.

Having concluded that the flags were not government speech, the Court analyzed Boston’s denial as a straightforward matter of viewpoint discrimination and concluded it was unconstitutional.

Justice Kavanaugh joined in the opinion and the judgment but wrote separately to remind government officials that the Establishment Clause permits (and requires) governments to treat religious persons, organizations, and speech equally with their secular counterparts.

In an opinion concurring in the judgment, Justice Alito, joined by Justices Thomas and Gorsuch, rejected Walker’s three-factor government-speech test, used again here: history, the public’s perception of who is speaking, and the extent to which the government has exercised control over speech.  Justice Alito instead proposed that government speech “occurs if—but only if—a government purposefully expresses a message of its own through persons authorized to speak on its behalf, and in doing so, does not rely on a means that abridges private speech.”

Finally Justice Gorsuch added another opinion concurring in the judgment, and joined by Justice Thomas, decrying the Court’s Establishment Clause jurisprudence under Lemon v. Kurtzman as confusing, outmoded, and in need of reform.

Shurtleff v. City of Boston ___ S. Ct. ___ (May 2, 2022)

“This case is about a tree house.” Lepper v. Vill. of Babylon, 18CV7011JMAAYS, 2022 WL 939719, at *2 (E.D.N.Y. Mar. 29, 2022).  In a recent federal case out of Long Island, NY, plaintiffs John and Noelle Lepper and their minor children brought an action against the Village of Babylon and several Village officials. The plaintiffs asserted a slew of constitutional claims related to a tree house that the plaintiffs constructed on their property.  Their claims included, among others, First Amendment retaliation, violations of due process and equal protection, excessive fines in violation of the Eight Amendment, and conspiracy.

Mr. Lepper first began constructing a tree house in his yard after finding a hypodermic needle on the ground near where his children play.  The plaintiffs did not apply for a building permit prior to construction, despite the fact that the Village required building permits for tree houses, playgrounds, and outdoor gyms with lot areas of over 90 square feet.

Continue Reading U.S. District Court Rejects Tree House Builder’s Federal Claims

A few years ago, Joshua Herridge was waiting outside of a ZZ Top concert in Montgomery County, Texas, but unlike most people gathering near the event hall, he was not there to see the band.  He was spreading his religious message by preaching, holding signs, and leafletting near a right-of-way outside of the large pavilion.  Herridge was eventually approached by officers and asked to relocate his activities to a corner across the street.

Herridge brought suit against Montgomery County and the County’s Fire Marshal in the U.S. District Court for the Southern District of Texas, claiming that the County’s attempt to relocate him from his street pulpit violated his rights under the First and Fourteenth Amendments.  The district court found for the County, holding that Montgomery had a significant interest in removing people engaging in activities which entice people to stop and listen during crowded events, since these holdups can cause bottlenecks in foot traffic which redirect pedestrians into active roadways and increase their likelihood of being struck by cars.  Because the County limited its policy to a single block, provided an alternative space for preaching across the street, and only enforced the policy during large events, the district court found that the County’s policy was narrowly tailored.  Herridge appealed to the Fifth Circuit.

Continue Reading Fifth Circuit Remands Ban on Leafletting in Large Crowds

On Thursday, in the case of City of Austin v. Reagan National Advertising, a case on which we’ve previously reported, the U.S. Supreme Court ruled that the City of Austin, Texas’s off-premises sign regulations were permissible under the First Amendment.  The Court’s ruling ensures that state billboard laws and thousands of local sign regulations that distinguish between on-premises (i.e. signs whose messages relate to an activity occurring on the same property where the sign is located) and off-premises signs (i.e. billboards) will remain intact and constitutional.

In the case, 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 and further prohibited technological changes to nonconforming signs, violated the First Amendment.  The appeals court’s decision was based on the conclusion that the regulation was content based.  Under prior cases, including the 2015 ruling in Reed v. Town of Gilbert, the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect.  The appeals court’s holding in the 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. Continue Reading U.S. Supreme Court Rules in Favor of Austin, Texas in Billboard Case, Upholds Off-Premises Sign Regulations

Stepping beyond the strict confines of sign law this week, we turn to a Texas case exploring new boundaries in First Amendment law: regulations on drone footage.  Late last month, the U.S. District Court for the Western District of Texas struck down those regulations as unconstitutional speaker-based restrictions that were also impermissibly vague.

By statute (the “Surveillance Statute”), Texas imposed civil and criminal penalties on the use of “an unmanned aircraft to capture an image of an individual or privately owned real property . . . with the intent to conduct surveillance on the individual or property captured in the image.”  The statute exempted professional or scholarly research on behalf of a college or university, as well as several other categories.  A similar statute (the “No-Fly Statute”) likewise imposed criminal penalties on drone flights over correctional facilities, various “critical” facilities, and sports venues unless the flights had a “commercial purpose.”  Neither statute exempted newsgathering organizations or journalist.

Plaintiffs, a journalist and two media organizations, sued the state and, on summary judgment, the court ruled the statutes unconstitutional.  The Court first concluded that the First Amendment’s protections extended to drone newsgathering, reasoning that the First Amendment protected both the right to publish information, and the process of generating publishable information.  In that regard, the statutes were no different than penalties for ordinary filming.

The court further concluded that strict scrutiny applied because the statutes created both content- and speaker-based limitations.  The Surveillance Statute applied provisions to images of individuals and private real property only, and therefore required the enforcing official to review the content to determine whether it was prohibited.  Strict scrutiny equally applied to the Surveillance Statute because its application depended upon the drone pilot’s identity: Professors, students, employees of insurance companies, and real estate brokers all appeared on the permitted list, but journalists did not.  The No-Fly statute also regulated on basis of the drone pilot’s purpose and was therefore content-based: imaging for a commercial purpose was permitted, but other purposes were prohibited.

After finding the statutes were content-based, the court predictably concluded that neither survived strict scrutiny.  The statutes, the court reasoned, weren’t actually necessary to achieve the state’s interests in protecting privacy and private property rights.  Nor were they narrowly tailored because they were both overbroad and underinclusive.  The statutes reached well beyond a handful of limitations to protect privacy while at the same time their exemptions allowed the very same harms to occur.

Finally, the court also concluded that statutes were void for vagueness because they did not define “surveillance” and “commercial purposes,” leaving it unclear whether journalism would escape criminal penalties.  Even Texas appeared to agree that those terms’ application could change with the circumstances, and the court agreed that the ambiguity would chill First Amendment activity.

 

Nat’l Press Photographers Ass’n v. McCraw, 1:19-CV-946-RP, 2022 WL 939517 (W.D. Tex. Mar. 28, 2022)

In 2021, the San Francisco International Arts Festival (“SFIAF”) and affiliated artist Nkechi Emeruwa were denied permits for two outdoor performance events due to city and state limitations on public gatherings implemented in response to the COVID-19 pandemic.  Together, SFIAF and Emeruwa brought suit in federal district court against San Francisco Mayor London Breed claiming the denials were unconstitutional.  Specifically, the plaintiffs sued Breed for violations of freedom of expression, equal protection, and due process under 42 U.S.C. § 1983.  Even after filing three amended complaints, the plaintiffs’ constitutional claims were still insufficient to withstand dismissal.

Continue Reading Court Dismisses with Prejudice Complaint that Permit Denials were Unconstitutional

Last month, the Sixth Circuit reversed a district court’s grant of summary judgment in favor of six Ohio police officers sued for unlawful arrest and retaliation against the free expression of protected speech.

In 2016, Michael Wood entered a county fair sporting an uncensored t-shirt that read “F**k the Police.” Within a few hours, six police officers and fairgrounds’ director Dean Blair had descended upon Wood asking to see the offending shirt. Although Wood had since covered up or changed out of the t-shirt, the officers heeded Blair’s demand that Wood be removed from the fair.  Wood agreed to go, but not quietly; as he was escorted off of the fairgrounds, Wood leveled profane insults at Blair and the officers and cited violations of his First Amendment right to free speech.  The officers then arrested Wood for disorderly conduct.

Continue Reading Cop Critic Prevails on Constitutional Claims in the 6th Circuit

“Love letters” will live a little longer in Oregon real estate transactions after the federal district court in Portland issued a preliminary injunction on a new state law banning the practice.

In a real estate market where multiple buyers compete for seemingly every home, creativity can afford an edge.  So it is that real estate agents often encourage “love letters” from buyers to sellers—those hand-crafted notes explaining (more or less) that the seller’s home is the stuff of dreams and would receive care and affection only if sold to the letter writers.

Evidence suggests these letters do in fact give buyers an edge.  It also suggests that they can inject discrimination against protected classes, as sellers, consciously or not, select buyers who share their own traits.  Worried that love letters were perpetuating biases and historic discrimination, the Oregon legislature banned the practice in 2021, in a law that limited brokers to exchanging nothing more than the “customary documents.”

Real estate brokerage Total Real Estate Group challenged the law in federal court, alleging that it abridged Continue Reading Oregon Ban on Real Estate “Love Letters” Enjoined

Allegations of a politically motivated lay-off were the subject of a recent U.S. District Court decision out of Gary, Indiana.  In Moore v. Calumet Township of Lake City, Plaintiff Marsha Moore filed suit against Calumet Township of Lake County and the Calumet Township Trustee, Kimberly Robinson, claiming that Defendants violated her First Amendment right to political association when they terminated her employment. 2:18-CV-106-TLS, 2022 WL 196366, at *1 (N.D. Ind. Jan. 21, 2022).  In 2014, Ms. Moore, who had worked in the Calumet Township Trustee Office since 1990, actively supported and campaigned for the reelection of her then-supervisor, Mary Elgin, to the Township Trustee position.  Ms. Robinson, one of the defendants, was the opposing candidate in the race.  On several occasions Ms. Robinson witnessed the plaintiff campaigning in an Elgin t-shirt, holding an Elgin sign, and displaying an Elgin bumper sticker on her car.

Continue Reading Political Association Claims Brought by Fired Government Employee Survive Summary Judgment

Before Halloween in 2018, the Butts County Sheriff’s Office placed signs in the front yards of registered sex offenders in the County, warning against trick-or-treating there.  The next year, three registered sex offenders sued to enjoin County Sheriff Gary Long from placing the signs again, claiming that they constituted compelled speech in violation of the First Amendment.  Although the district court granted summary judgment in favor of the Sheriff, the Eleventh Circuit recently reversed, finding the signs to be unconstitutional compelled speech.

Prior to 2018, the Sheriff’s Office had distributed warning fliers to registered sex offenders and asked that they place them on their doors before Halloween.  No evidence suggested that any sexual offenses or unwanted contact with minors had occurred in these prior years; on the contrary, the Sheriff admitted that no such incidents had been known in his tenure with the County.  However, simply because the Sheriff believed that signs would be more effective than fliers, the County changed its practice.  Officers placed signs (depicted below) in the yards of all registered sex offenders and told residents that only the Sheriff’s Office could remove them.

At trial, the district court found that the signs did not constitute compelled speech because a reasonable third party would not view the sign as endorsed by the registrant.  That court focused on two major factors: (1) that the signs were clearly government speech, and (2) that registrants were not prohibited from placing their own competing signs.  However, as pointed out on appeal, neither of these factors are relevant when determining whether speech is compelled by the government.

The Eleventh Circuit easily found that the signs were a “classic example” of compelled speech because they stated that the warning was “a community safety message from Butts County Sheriff Gary Long,” were placed on yards despite homeowners’ and/or residents’ objections, and could only be removed by the Sheriff’s office.  Well-established Supreme Court precedent does not require that a reasonable third party would view the speech as endorsed, and any ability to offer competing speech does not cancel out the compelled speech.  Unless narrowly tailored to meet a compelling state interest, the forced display of government speech on private property violates the constitutional right to refrain from speaking.

Here, all parties agreed that preventing child sex abuse is a compelling interest, but the court found that the signs failed strict scrutiny because they were not narrowly tailored to serve this interest.  As the Sheriff admitted, no evidence existed to support the need for the signs to prevent child sex abuse on Halloween.  Additionally, although the Sheriff’s Office could have limited posting to yards of registrants with a known risk of recidivism, it posted signs on the yards of all registrants–even those determined to be rehabilitated.

The court reversed the district court’s holding as it applied to one plaintiff who owned his residence, with instructions to enter summary judgment and a permanent injunction in that plaintiff’s favor.  Because the other two plaintiffs did not own their residences, the court vacated and remanded for proceedings consistent with the opinion, taking into consideration any issues of standing.

 

McClendon v. Long, No. 21-10092, 2022 WL 165992 (11th Cir., Jan. 19, 2022).