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).

One of Morris’s murals in New Orleans. Source: The Advocate.

In October, a federal district court in Louisiana denied the City of New Orleans’s motion to dismiss a claim filed by an individual challenging the city’s permit requirement for murals.

In late 2017, Neal Morris, an owner of residential and commercial properties in New Orleans, sought information from the city about the permit process and approval criteria for placing murals on his properties.  When he did not receive the requested information, Morris commissioned an artist to paint a mural on one of his properties.  The mural contained the infamous vulgar quote by President Donald Trump on the “Access Hollywood” tape, but replaced certain of the inflammatory words with images.  Morris was subsequently cited with a violation of the city’s historic district regulations.

In response, Morris filed suit against the city, alleging that the permitting scheme violated his First Amendment rights.  Specifically, he claimed that the permit scheme was an unconstitutional prior restraint and that it was a content based regulation.  He also claimed due process and equal protection violations.  The city subsequently amended its regulations, and the court denied the plaintiff’s motion for preliminary injunction as moot.  When the city then moved to dismiss the case, the plaintiff filed a response in opposition to the motion.

The court first found that the plaintiff had standing to challenge the mural ordinance.  Since the city was attempting to interfere with Morris’s placement of murals, the court found that he had standing.  The court moved on to analyze whether the mural ordinance is content neutral or an unconstitutional prior restraint.  The mural ordinance requires murals to be submitted to the city for design review, in which the city considers the mural’s compatibility with surrounding properties and neighborhoods and determines whether the mural furthers public welfare.  Because these analyses require analysis of the mural’s content, the court found that the regulation was content based.  Based on that finding, the court relied upon Thomas v. Chicago Park District to determine that the law was also an unconstitutional prior restraint, because it allowed unbridled administrative discretion in the issuance or denial of mural permits.

The court went on to find that Morris also pled sufficient facts to state an unconstitutional vagueness claim under the Due Process Clause, but dismissed the plaintiff’s “class of one” claim under the Equal Protection Clause.

Morris v. City of New Orleans, No. 18-2624, 2018 WL 5084890 (E.D. La. Oct. 18, 2018).

AFDI sought to run an advertisement that was nearly identical to a U.S. State Department advertisement. Source: American Freedom Law Center.

In a case that has been percolating for more than five years and which we reported on last year, the Ninth Circuit Court of Appeals reversed a district court order granting summary judgment in favor of King County, Washington, finding that the county’s bus advertising policy and rejection of a proposed advertisement violated the First Amendment.  The Ninth Circuit had previously affirmed the district court’s order denying a preliminary injunction to the plaintiff, American Freedom Defense Initiative, a nonprofit concerned with the “Islamization of America.”  The advertisements that AFDI desired to run showed the faces of individuals on the nation’s “most wanted” list of jihadists.

For purposes of brevity, the facts and prior disposition of the case can be found in our earlier post.

In its analysis, the Ninth Circuit confirmed that advertising space on King County’s public buses constitutes a nonpublic forum, thus requiring the Seattle bus system’s advertising policy to be reasonable in light of the purposes of the forum, and viewpoint neutral.  The Ninth Circuit clarified that reasonableness is measured by reviewing the forum’s purpose, whether the standards for rejecting an advertisement are definite and objective, and by an independent review of the record.

The court found that the transit operator’s policies prohibiting false or misleading advertising were reasonable.  However, it disagreed that the policy prohibiting demeaning or disparaging advertising was viewpoint neutral.  Citing to the Supreme Court’s 2017 decision in Matal v. Tam, which held a similar prohibition to be viewpoint based, the court found offensive speech is, by its nature, expressive of a particular viewpoint and thus a prohibition on such speech is not viewpoint neutral.  And while the court found that the transit operator’s policy prohibiting advertising that would be disruptive to its transit service was viewpoint neutral and facially reasonable, it found the transit operator’s rejection of AFDI’s advertising to be unreasonable.  Namely, the court pointed to a U.S. State Department advertisement run by the transit operator that showed faces of global terrorists that was nearly identical to the advertisement rejected by the operator.  Because the bus system could not demonstrate harm to its operations from the State Department advertisement, the court found that the rejection of AFDI’s advertising was unreasonable.

Am. Freedom Defense Initiative v. King Cnty., 904 F.3d 1126 (9th Cir. 2018).

An adult business in Louisiana. Source: Facebook.

Last month, the federal Court of Appeals for the Fifth Circuit invalidated a Louisiana statute prohibiting nude erotic dancing by 18 to 21-year-old women, finding that the law was too vague and thus violated the First Amendment.  The law was passed by the Louisiana legislature in 2016, and applied to locations that serve alcoholic beverages in connection with nude dancing.  Erotic dancers were previously required to be at least 18 years of age, and state law—both before and after the 2016 law—did not permit total nudity.

The court addressed the law as a content neutral regulation of expressive conduct, in line with Fifth Circuit precedent requiring adult business regulations to be analyzed under intermediate scrutiny.  The court analyzed the law under the four-part standard for determining the constitutionality of regulations of expressive conduct under United States v. O’Brien.  The court reversed the district court’s conclusion that the law was not narrowly tailored, on the grounds that Louisiana state courts had limited the act’s application beyond its plainly legitimate sweep.  Thus, the law was tailored to the state’s interest in reducing negative secondary effects associated with adult entertainment establishments.  The court went on, however, to find that the law was unconstitutionally vague.  Specifically, the court found that the law in question, which prohibited exposure “to view” of the dancers’ breasts and buttocks, did not clearly prohibit specific conduct.  On these grounds, the court invalidated the statute.

While this case does not deal with local regulations (which are generally the subject of our blog), it provides further direction to local governments addressing adult entertainment businesses.  Specifically, local governments need to clearly identify the type of conduct that is permissible in adult entertainment establishments, and should not rely on state laws that might not be sufficiently specific in that regard.

Doe I v. Landry, 905 F.3d 290 (5th Cir. 2018).