Credit: Brad. K, Flickr. Image used subject to creative commons license.

Earlier this year, we reported on a Ninth Circuit decision upholding the City of Oakland’s permitting scheme for donation and collection boxes as a content-neutral, and permissible, exercise of government authority.  Now, however, the plaintiff in that case has asked the Supreme Court to review a narrow question from the Ninth Circuit’s decision: “Is a regulation content based for purposes of the First Amendment where it applies only to unattended receptacles that solicit donations or collections?”

Though we’ve covered this case twice before, as a refresher, Petitioner nonprofit Recycle for Change places donation and collection boxes around Oakland to solicit donated materials for the dual purpose of conserving environmental resources and raising funds for charity.   In 2016, the city enacted an ordinance regulating unattended donation and collection boxes and requiring that property owners or donation box operators obtain a permit, produce a site plan, and carry at least $1 million in liability insurance.  The license fee established under the permitting scheme is $246 per year, and the initial application fee for the permit is $535.  The city’s regulations require maintenance of the boxes, place restrictions on the size and location of the boxes, and prohibit the placement of boxes within 1,000 feet of one another.

Recycle for Change sued Oakland on Continue Reading Bay Area Nonprofit Asks Supreme Court to Weigh in on Oakland Bin Ordinance

Photo Credit: bootbearwdc, flickr

In this most recent installment of the long-running (and long-vexing) series, “Crèches, Crosses and the Constitution,” a Fourth Circuit majority held that a 40-foot-tall Latin cross situated in the middle of a public intersection, and pictured at right, ran afoul of the First Amendment’s Establishment Clause.  Erected in 1925, the cross memorialized forty-nine soldiers from Prince George’s County, Maryland, near Washington, D.C., who died in World War I.  After standing for the better part of a century, it drew the ire of several area residents and the American Humanist Association, all of whom believed such a prominent display, located on public property and maintained with public dollars, unconstitutionally advanced Christianity.  The district court concluded otherwise, granting summary judgment in favor of the government, and this appeal to the Fourth Circuit followed.

A 2-1 majority Continue Reading Fourth Circuit: Peace Cross Unconstitutionally Advanced Religion

Seabrook Nuclear Power Plant. Source: Northeastern University.

A local nuclear power activist, who expresses concern about the possibility of a nuclear meltdown at a Massachusetts nuclear power, watched his First Amendment claims against the Town of Rowley “melt down” late month.  A federal district court in Massachusetts entered judgment on the pleadings in favor of the town, finding it did not engage in viewpoint discrimination, retaliation, or selective enforcement.

Stephen Comley, a town resident, posted signs in public right-of-ways throughout the town pertaining to his concerns about safety at the Seabrook Power Plant.  In 2015, Comley appeared before the town’s governing body to demand that the town take action against the power plant.  Following Comley’s appearance before the town board, he noticed that his signs began disappearing from the public right-of-ways, which reportedly hosted several other signs relating to elections and other subjects.  He then brought First Amendment claims for viewpoint discrimination, retaliation, and selective enforcement. Continue Reading Massachusetts Town Prevails in Nuclear Power Protest Case

Protesters near Planned Parenthood in Pittsburgh. Source: CBS Pittsburgh.

Last week, a federal district court granted summary judgment to the City of Pittsburgh, Pennsylvania in a long-running dispute over a buffer zone law applicable to protest activities outside of reproductive health facilities such as Planned Parenthood.  The court held that the city’s 15-foot buffer zone law was content neutral and narrowly tailored to a substantial governmental interest, and thus valid under the First Amendment.

Pittsburgh enacted its buffer zone law in 2005.  The initial buffer zone law initially imposed a 15-foot buffer zone around the entrance to a hospital or health care facility in which no person was permitted to congregate, patrol, picket, or demonstrate.  The buffer zone excepted public safety officers, emergency workers, employees or agents of the facility, and patients.  The law also imposed an eight-foot “personal” buffer zone around individuals.  In the eight-foot buffer zone, no person could approach an individual to provide a leaflet or to protest, where the individual was within 100 feet of a hospital or health care facility entrance.  The eight-foot personal buffer zone was struck down in the case of Brown v. City of Pittsburgh in 2009.  The 15-foot buffer zone remained in effect, but was challenged again in 2014 following the Supreme Court’s decision in McCullen v. Coakley, in which the Court struck down a Massachusetts law imposing a 35-foot buffer zone around health care clinics.  The plaintiffs in the case are religiously-motivated protesters who engage in protest activities around a Planned Parenthood facility in Pittsburgh.  In 2016, as we reported, the Third Circuit reversed the district court’s dismissal of the case. Continue Reading District Court Finds in Favor of Pittsburgh Buffer Zone Law

Webcast— Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More

December 14, 2017

1:00 p.m. – 2:30 p.m. EDT

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More on December 14 from 1:00 p.m. to 2:30 p.m. EDT. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

Planning and zoning in areas involving rights protected under the First Amendment, including the rights to free speech and freedom of religion, can be tricky. This webinar will review several areas in which planners interact with the First Amendment, including in the areas of signs, religious land uses, adult businesses, and even some other interesting areas such as the regulation of gun shops, tattoo parlors, public monuments, and other topics. Presenters will poll the audience at the beginning of the webinar to determine specific topics in which attendees are interested, and will tailor the presentation to attendees’ interests.

Speakers include Daniel Bolin of Ancel Glink, Brian Connolly of Otten Johnson Robinson Neff & Ragonetti, P.C., and Evan Seeman of Robinson & Cole LLP.

Register here

Last week, a federal district court in Nevada ruled on the City of Reno’s motion to dismiss several claims brought against it by a billboard company and landowner relating to the placement of off-premises billboards in the city.

The plaintiffs in the case are a billboard company called Strict Scrutiny Media (which perhaps implies the type of judicial review that the company wanted, but did not get, in this case) and the Independent Order of Odd Fellows Reno Lodge #14.  SSM obtained billboard leases at three sites owned by the Oddfellows, constructed signs on all three locations, and obtained permits for the construction of one of the signs.  In late 2016, the city informed SSM and Oddfellows that the permitted sign’s permit was invalid due to the fact that it was issued to a different sign operator, and also informed Oddfellows that two other signs that had been installed by SSM and Oddfellows were constructed without a permit in violation of the city’s code.  Oddfellows and SSM then challenged the city’s action, and also challenged the city’s ban on the erection of new, permanent off-premises signs and the city’s exemptions to permit requirements for certain temporary or permanent on-premises signs. Continue Reading Court Allows First Amendment Claims to Move Forward in Reno Sign Code Case

Last week, the Ninth Circuit Court of Appeals upheld San Francisco’s prohibition on new off-site commercial billboards, rejecting a First Amendment claim to the contrary made by a billboard company.  The case reaffirms the distinction between commercial and noncommercial speech regulation under the First Amendment, and limits the scope of Reed v. Town of Gilbert.

Since 2002, San Francisco has prohibited the erection of new off-site billboards—which advertise products or services not available on the property where the billboards are located—while allowing new on-site business signs.  The prohibition amounts to an effective ban on new billboards in San Francisco, although billboards that predated the ban are allowed to remain in place.  The plaintiff, Contest Promotions, LLC, is a billboard company that challenged San Francisco’s regulation under the First Amendment.  The district court for the Northern District of California granted a motion to dismiss filed by the City and County of San Francisco. Continue Reading Ninth Circuit Allows San Francisco’s Billboard Ban to Stand

Nashville Pride Festival. Source: Nashville Pride.

Late last month, a federal district court in Tennessee granted summary judgment to the Nashville metropolitan government in a case involving the rights of protesters at the 2015 Nashville Pride Festival, which is a celebration of LGBTQ rights and culture.

Nashville Pride Festival is held in the City’s Public Square Park.  In order to hold the festival in the park, Nashville required the organization Nashville Pride to obtain a permit.  The event was ticketed, such that only those with tickets could enter into the park.  The plaintiffs in the case, John McGlone and Jeremy Peters, believe that homosexuality is a sin.  They attended the festival in protest, but stayed outside the ticketed area.  A festival employee asked them to leave the area outside of the gate, as it was subject to Nashville Pride’s permit.  Eventually, the protesters were removed to a location on the other side of the street from the park.  This location was unsatisfactory to the plaintiffs, because they believed that their message would reach less people. Continue Reading Court Upholds Relocation of Protesters at Nashville Pride Festival

Klyde Warren Park in Dallas. Source: klydewarrenpark.org

Last month, the Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment.  The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others.  To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles.  The riddles are intended to attract people to stop by and ask him about them.  The park rules prohibit structures larger than four feet by four feet without a permit.  Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park.  In 2015, he received a criminal trespass warning.  After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds. Continue Reading Restrictions on Structures in Dallas Park Upheld

Signs on the pedestrian overpass in Campbell, Wisconsin. Source: Milwaukee Journal.

Late last week, in a case that involved made-for-TV shenanigans by a local police officer, the Seventh Circuit Court of Appeals ruled that a town’s total ban on signs, flags, and banners within 100 feet of an interstate highway could survive with respect to overhead signs, but remanded the case for additional proceedings with respect to other parts of the ban.

Campbell, Wisconsin bans all signs, flags, and banners along interstate highways.  The town enacted its regulation after members of the community hung political protest banners containing messages commonly identified with the Tea Party on a pedestrian overpass over Interstate 90.

Following the enactment of the regulation, the local police began issuing citations to individuals displaying signs along the highway.  Some of the individual sign-posters took videos of the police issuing citations—including in response to the protesters’ display of American flags and other patriotic signs along the interstate highway.  Concerned about the videos, in an apparent attempt at vigilante justice, the local police chief posted the name and email address of one of the Tea Party sign-posters on same-sex dating and pornographic websites.  The police chief also took to local newspapers to accuse the man of failing to pay his taxes.  Continue Reading Amid Interstate Overpass Soap Opera, Seventh Circuit Says No Empirical Evidence Required to Support Sign Regulation