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
A recent discovery dispute over Madison, Wisconsin’s revised sign codes recently provided a reminder regarding the evidence that is and isn’t relevant in a Free Speech challenge. And let’s not bury the lede: a legislator’s private motivations for amending the sign code, the court concluded, don’t matter.
Adams Outdoor Advertising, a billboard operator, brought a facial and as-applied First Amendment challenge to Madison’s sign code after the city’s 2017 overhaul severely restricted off-site advertising. The challenge itself is ongoing and Adams Outdoor contends that Reed v. Town of Gilbert’s test for content-based regulations—and not Central Hudson’s more permissive test for commercial speech regulations—should invalidate Madison’s new approach.
In the hopes of bolstering that contention, Adams Outdoor submitted discovery requests for information about the purpose of the 2017 amendment and, in particular, legislators’ personal motivations for adopting it. The city refused to provide the information, invoking legislative privilege, and the dispute eventually reached the court. Continue Reading No Discovery on Legislators’ Personal Motivations for Sign Code Overhaul, says District Judge
Although this blog often focuses on the First Amendment’s Free Speech clause, we occasionally wander into the First Amendment cases involving religious exercise as well. A Hand of Hope Pregnancy Resource Center v. City of Raleigh, emerged from Raleigh’s determination that Hand of Hope could not operate a religious pregnancy counseling center in a residential zone district, and therefore offers a bit of both.
Hand of Hope had previously operated a pregnancy resource center in Raleigh, where it offered clients both spiritual guidance and reproductive health information. Its services also included pregnancy testing and Continue Reading Religious Pregnancy Counseling Organization Barely Survives Summary Judgment on Religious Land Use Claim
In an effort to curb visual clutter and reduce litter, Chicago’s sign ordinance has, since 2007, prohibited posting “commercial advertising material” on city-owned property. No longer, however. Writing recently, the U.S. District Court for the Northern District of Illinois struck down that ban as unconstitutionally vague.
The ordinance’s challenger, RCP Productions, leveled two contentions, and while only one was convincing, that was enough to sink the ban. RCP first argued that the sign ordinance unconstitutionally restricted commercial speech—a high bar to clear, and RCP fell short. Chicago, the court concluded, had supplied ample reason to believe that commercial advertising accounted for the vast majority of signage and litter clogging the city’s public ways. The city’s ban addressed those bugaboos without blocking other avenues for commercial speech, and thus didn’t raise a constitutional worry. On that front at least.
The challenger’s second argument proved more successful: the court agreed that the term “commercial advertising material” lacked constitutionally required clarity. Was a flyer advertising a $10 lunch event with a federal judge a commercial advertisement? And what about the plaintiff’s own advertisement, promoting a non-profit film screening with a small admission fee? Was that banned as well? The ordinance offered no clear answers, and instead, Chicago officials had suggested multiple readings. That proved fatal. Chicago was not required to provide perfect clarity, the court reasoned, but the term “commercial advertising material” lay at the heart of the sign ordinance’s ban, and the city did not define that critical term. Absent a clear definition, the court worried Chicago could lean on the ordinance’s ambiguity to prohibit disfavored messages. The ordinance therefore fell to RCP’s challenge.
Link to full opinion here: https://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2015cv11398/319533/93/
The U.S. District Court for the Eastern District of Missouri recently sided with a St. Louis-area locality of 1,500 best known as the home of the events behind The Exorcist, upholding its sign code against a motion for preliminary injunction. The principle facts were these: the City of Bel-Nor code allows one double-faced stake-mounted yard sign per improved parcel. Plaintiff Lawrence Willson placed three such signs in his yard, a window sign near his front door asking first responders to rescue his pets, and an “Irish for a Day” flag in his garden. Bel-Nor cited him for violating the one-sign-per-yard ordinance, but did not take issue with the window sign or garden flag, although they too likely violated its sign code.
Lawrence, represented by the ACLU, sought a preliminary injunction to enjoin Bel-Nor from enforcing its entire sign code ordinance, arguing that the ordinance violated his Constitutional right to Free Speech. The district court rejected the request with a rote application of First Amendment principles. Continue Reading Tiny Enclave’s One-Sign Rule Survives Initial Constitutional Challenge
The U.S. District Court for the Southern District of New York recently declared unconstitutional New York City’s ban on advertising in vehicles other than exempted taxis. Under the city’s program, medallion and certain other taxis could display advertising, including seat-back television content and advertising, but other for-hire vehicles (“FHVs”), like those used for Lyft and Uber rideshare services could not do the same. Vugo, Inc., a seat-back video advertising company, challenged New York City’s regulations on the ground that their distinction between taxis and other FHVs violated the First Amendment. On the parties’ cross motions for summary judgment, the district court agreed.
The court reviewed the regulations under Central Hudson’s four-part commercial speech test. Under that test, if the speech regulated is neither false nor unlawful (a component not at issue in this case) and the government can show a substantial interest to justify its regulation, the court then considers whether regulation directly advances the government’s interest and whether it is narrowly drawn and not more extensive than necessary to serve the interest.
On the second prong, the court agreed with New York City that its interest in regulating vehicle advertisements as annoyances to passengers was substantial—but beyond that point the city’s arguments fared worse. Most problematic for the court was the city’s justification for allowing advertising in taxis but not other FHVs: that the advertisements allowed operators to offset the cost of expensive ride- and fare-monitoring equipment the city required taxis to maintain. That justification for the distinction shared no relationship to the city’s concerns about passenger annoyances, however. That is, the advertisements were equally annoying irrespective of whether they helped offset other costs. And because the taxi exemption still allowed advertising for more than 370,000 daily trips, the court doubted that the distinction between taxis and FHVs advanced the city’s other stated interest in aesthetics.
The court also found the exemption lacking with respect to Central Hudson’s fourth prong. Though it noted that the commercial speech test does not require cities to employ the least restrictive means to achieve their goals, it concluded New York City’s outright prohibition on advertising in FHV was far too broad.
The court’s suggested alternative: just let passengers turn the ads off.
View the complete decision here: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2015cv08253/448867/63/
The City of Oakland, California, evidently hoping that new multifamily residential and commercial developments will contribute to public art displayed around the city, last year enacted an ordinance requiring art purchases as a condition of development approval. For new multifamily developments, the city requires art purchases (or an in lieu payment to the city’s public art fund) equivalent to .5 percent of a proposed building’s development costs. New commercial developments incur purchase requirements or fee payments equal to 1 percent of those costs. And for developers choosing to purchase art, the city requires that they display it on the property where the development will occur.
The Building Industry Association-Bay Area (“BIA”) challenged the ordinance’s validity, arguing Continue Reading U.S. District Court Dismisses Claims that Oakland Art-Purchase Development Condition Violates Constitution
Don Karns and Robert Parker are evangelical Christian ministers. The New Jersey Transit Corporation is a government entity providing mass transit services throughout the Garden State. All three arrived together in court (the first time) after the preachers began proclaiming their creed on a Princeton-area train platform, leading first to passenger complaints and, soon afterward, to their arrest for obstruction of justice and defiant trespass. Because NJ Transit employed the officers involved, Karns and Parker brought a Section 1983 action alleging that both the officers and the agency had violated the First and Fourteenth Amendments by selectively enforcing NJ Transit’s platform-speech-permitting policy, retaliating against their exercise of First Amendment rights, and restricting their ability to record the encounter.
The district court dismissed those claims, and the Third Circuit affirmed. The bulk of the opinion concerned an issue interesting in its own right but tangential to the focus of this blog—whether the NJ Transit, in its official capacity, enjoyed 11th Amendment immunity. After concluding that the 11th Amendment did shield NJ Transit as an arm of the state, the remainder of the opinion dispatched with the preachers’ individual-capacity 1983 claims against the officers themselves. As to the selective enforcement argument, the ministers had presented no evidence to show that the officers had or would have treated any other platform-goers differently, so the claim failed as a factual matter. On the First Amendment retaliation claim, Karns and Parker could not overcome the officers’ assertion of qualified immunity because no clearly established law demonstrated that an arrest supported by probable cause could constitute actionable retaliation. The preachers’ third theory met a similar end: unable to find any clearly established law barring the officers from restricting video recording of police interactions, the court concluded that qualified immunity protected them from the preachers’ claims.
Complete opinion available here: https://law.justia.com/cases/federal/appellate-courts/ca3/16-2171/16-2171-2018-01-11.html
The concrete pathways at the corner of University Boulevard and Hackberry Lane in Tuscaloosa, Alabama, may look and quack like
sidewalks, but as constitutional matter, the Eleventh Circuit considers them something less: an extension of the University of Alabama campus. In a recent decision, that circuit concluded the sidewalks were not a “traditional public forum” within which the Constitution confines government control of speech and other demonstrations, but rather a “limited public forum” to which the University of Alabama could constitutionally control access. The practical result? The unlicensed street preacher who sued ‘Bama won’t get a preliminary injunction against the university’s grounds-use policy.
[The following case centered on an ethnic slur and this post therefore includes two references to that slur.]
Reaffirming the First Amendment’s virtual prohibition on viewpoint discrimination, the Second Circuit recently held that New York state could not prohibit a vendor from participating in public lunch program simply because its name and menu featured ethnic slurs.
The case emerged from a dispute over access to the publicly owned Empire State Plaza in Albany, New York. After years of contracting with a single vendor to supply food for a daily lunch program hosted in the plaza, New York’s Office of General Services (OGS) chose instead to feature a rotating line-up of food trucks—similar to Civic Center Eats program in Denver’s Civic Center Park—subject to a permitting regime. Plaintiff Wandering Dago, Inc. (“WD”), which operates a food truck with the same name, applied to OGS for a vending permit. Though the application proceeded normally at first, when OGS officials realized the term Continue Reading Offensive Name Not a Constitutional Reason to Ban Food Truck from Public Lunch Programs, Says Second Circuit