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
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…
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
Last week, the Tenth Circuit vacated a preliminary injunction preventing Denver International Airport from enforcing much of its public protest policy. We reported on that injunction after it issued and now return to discuss its reversal on appeal. In short, the unanimous appellate panel concluded that the airport could reasonably require a seven-day permitting period for protests, even if that requirement quashed most spontaneous demonstrations.
A bit of background, though, before we get any further: after the Trump administration unveiled its so-called “Muslim Ban” (more formally, but less memorably, titled Executive Order 13769) suspending nationals from several predominantly Muslim countries from entering the United States, spontaneous protests broke out in airports nationwide. Plaintiffs in this case joined in those protests at DIA, where…
Continue Reading Tenth Circuit: No Constitutional Need for Speedier Protest Permitting at Denver International Airport
After years of extending the power of aldermanic privilege to oversized billboard approvals, the Chicago city council recently dispatched with an aspect of that practice, to the evident disappointment of at least one of its beneficiaries. Under that longstanding policy, an alderman (Chicago’s term for a city council member) could recommend, and the council would order, that the city’s building commissioner issue or deny a permit for an oversized billboard proposed in the alderman’s ward—the requirements of the city’s zoning ordinance notwithstanding. In an effort to create a more cohesive scheme, however, the city council recently eliminated the portion of that policy which had allowed it to order approval of oversized billboards conflicting with the zoning ordinance.
This change created something of a predicament for Image Media Advertising because it also repealed the council’s prior approval of several Image Media signs, and the city’s building commissioner refused to…
Continue Reading District Court Rejects (Most) Challenges to Change in Chicago Sign Regulation Practice
Does the First Amendment require a public transit system to run an ad alerting riders to the “Faces of Global Terrorism”? No, concluded a federal district court last month. The case, which remains on appeal, comprises the latest salvo in a years-long battle between the American Freedom Defense Initiative (AFDI), a nonprofit specializing in creating and litigating advertisements decrying the “Islamization of America,” and King County Metro Transit (Metro), the Seattle area’s mass transportation system.
After AFDI submitted what Metro rejected as a false and misleading advertisement, and the Ninth Circuit refused to overturn a district court order denying AFDI’s request for a preliminary injunction, AFDI returned with a new version of its ad. That latest iteration…
Continue Reading First Amendment Still Doesn’t Require Seattle Transit System to Run “Faces of Global Terrorism” Ad
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
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.