This week, a federal district court denied the City of New Orleans’s motion to dismiss a First Amendment claim challenging the application of the city’s short-term rental law.

Plaintiff Dawn Adams Wheelahan challenged the city’s short-term rental regulations on a variety of grounds.  The city had revoked her license to rent her property on a short-term basis, in part for failing to display her license on the property or in her advertising of the property for short-term rental.  Wheelahan brought several claims against the city, including a Fifth Amendment takings claim, an Eighth Amendment excessive fines claim, and other constitutional claims.  Included in the complaint were claims of an unconstitutional prior restraint and content-based restrictions under the First Amendment.  The plaintiff argued, in essence, that the city’s permitting requirement and other restrictions on short-term rentals operated as a prior restraint on her advertising of the short-term rental, and that the requirement that she include her license in advertising was content based, compelled speech.

The city filed a motion to dismiss for failure to state a claim, including with respect to the First Amendment claims.  In analyzing the motion to dismiss, the court found that the complaint properly stated a claim, because it alleged facts indicating that the short-term rental regulations required a permit prior to allowing Wheelahan to advertise her property.  The court did not address the claim pertaining to compelled speech.  As such, however,  the First Amendment claim survived the motion to dismiss.  The court allowed the remaining claims to proceed, except for the takings claim.

Wheelahan v. City of New Orleans, No. 19-11720, 2020 WL 1503560 (E.D. La. Mar. 30, 2020).