Murals in Oakland, California. Source: Oaktown Art.

In August, the Ninth Circuit Court of Appeals affirmed a district court’s rejection of claims by the Building Industry Association of the Bay Area that the City of Oakland’s program requiring developers to contribute 1% of the cost of a development project to public art violated the First Amendment.  In an unpublished opinion, the circuit court concluded that, although such a program implicated free speech concerns, it did not compel any particular speech.  The court noted that the program offered developers wide latitude to determine how they might incorporate artwork into their projects.  The court agreed that the program was related to the city’s interests in encouraging aesthetic interest in the community.
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A billboard in Texas. Source: Austin American-Statesman.

A federal district court in Texas recently found that the City of Cedar Park’s sign code was content based and unconstitutional due to its failure to distinguish between commercial and noncommercial billboards.

A billboard company sought permits to convert existing billboards to digital signs, as well as to erect new signs.  The city denied the permit applications for failure to comply with the city’s sign code, and the billboard company sued.  In its lawsuit, the billboard company argued that the city’s decision to distinguish between on- and off-premises signs was content based, because it applied to noncommercial signs in the same manner as commercial signs.  Generally speaking, the government may not distinguish between the content or message of various noncommercial signs.  Per the billboard company, a code enforcement officer would be required to determine the permissibility of the sign based on its content, in violation of the First Amendment.  The federal district court agreed and granted summary judgment in favor of the plaintiff.  About a month ago, the court denied the city’s motion for reconsideration.
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This past summer, the Seventh Circuit Court of Appeals found that a billboard company’s challenge to a billboard restriction in Bellwood, Illinois was mooted by the fact that the company lost its lease on the property that it intended to construct a billboard.  The court affirmed dismissal of the company’s First Amendment, equal protection, and antitrust claims.

In 2005, Paramount Media obtained leasehold rights to a property in the village abutting I-290, a high-traffic interstate corridor outside of Chicago.  Although it sought the necessary state permits for a billboard, it failed to seek permits from the village.  In 2009, the village amended its sign code to prohibit new billboards.  The village later amended the code again to allow billboards on village-owned property.  Paramount then sought to lease village-owned property along the interstate, but was rebuked, as the village had leased its property to another billboard company.
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In a case that we reported on previously, the Third Circuit Court of Appeals has entered a ruling in favor of a group of animal rights activists that wished to protest the Barnum and Bailey Circus in a government-owned convention center and arena in Wilkes-Barre, Pennsylvania.

The facts of the case can be found in our earlier posts.  At issue on appeal were questions of whether the government could limit the area allowed for protests at the arena, whether the protesters could be prohibited from using profane language, and whether the convention center could prohibit the use of sound amplification.
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The plaintiff in the case against Sandy City, Utah, who sought to overturn the city’s median restriction.

Earlier this summer, the Tenth Circuit Court of Appeals held that Sandy City, Utah’s restriction on sitting or standing in a street median of less than 36 inches in width met constitutional muster.  Although the regulation was principally aimed at addressing panhandling activity, the court found the regulation to be content neutral, affirming an earlier district court ruling in the case.  The court’s decision appears to offer an avenue for local governments to address safety concerns associated with panhandling, without treading on constitutionally unstable ground.

The Supreme Court’s 2015 decision in Reed v. Town of Gilbert resulted in the invalidation of many restrictions on panhandling in municipalities around the United States.  To get around the legal defects associated with panhandling prohibitions, municipalities—like Sandy City—have adopted general restrictions on sitting, standing, and remaining in street medians to achieve the same ends.
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We take a break from our regularly-scheduled program to advise our readers of a webinar that will be hosted by our friends at the American Planning Association’s Planning and Law Division:

Gentrification, Displacement, and the Law

Thursday, October 10, 2019
2:30 p.m. – 4:00 p.m. CT

CM I 1.50 I Law
CLE 1.50 through Illinois

Earlier this month, the Sixth Circuit Court of Appeals struck down Tennessee’s outdoor advertising statute, finding it to be content-based in violation of the First Amendment.  The court’s ruling affirms an earlier ruling by a federal district court.

A billboard owner challenged the Tennessee Billboard Act after he posted a sign supporting the 2012 U.S. Olympic Team.  The sign was located on vacant land, and the owner had failed to secure a permit from the Tennessee Department of Transportation for the billboard, as required by the law.  The transportation department’s rationale for denying the permit was that it was not entitled to the law’s exception to permitting for on-premises signs, which the law generally defined as relating to the premises on which the sign was posted.  While the TBA was generally intended to apply exclusively to commercial off-premises speech, the state’s denial of a permit to the plaintiff appeared to apply to noncommercial speech, i.e., the owner’s support for the Olympic team.
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New York City taxi cabs. Source: New York Post.

In a decision issued last week, the Second Circuit Court of Appeals ruled that New York City’s Taxi and Limousine Commission can restrict in-vehicle commercial advertising in for-hire vehicles, including yellow cabs, Uber, and Lyft.  The decision reverses an earlier ruling by a district court holding that the ban violated the First Amendment rights of advertisers.

New York City’s TLC regulates for-hire vehicles in the city.  For nearly 20 years, the TLC has prohibited commercial advertising in for-hire vehicles, except on screens installed in yellow cabs called “Taxi TV,” which otherwise allow patrons to use credit cards to pay their cab fares.  Noncommercial messages are permitted to be displayed in for-hire vehicles.  Vugo is a company that wished to sell a software platform for advertising in Uber and Lyft vehicles, which are not otherwise equipped with Taxi TV.  The TLC rules prohibited Vugo’s proposal, and Vugo sought relief in federal court. 
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The Planned Parenthood location on Virginia Cove in Memphis. Source: The Business Journals.

In a case we reported on last year, the Sixth Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction in a case involving protests outside of a Planned Parenthood location in a Memphis, Tennessee business.  The case previously turned on the fact that the street in front of the clinic was a private street.  The district court had determined that, because the street was private, it could not be a public forum in which anti-abortion protests could take place.

The Sixth Circuit’s decision, issued yesterday, turned on the fact that the private street in question was “physically indistinguishable” from adjacent public streets.  The court reasoned that, because the private street was paved and had no signage indicating that it was privately-owned, a reasonable member of the public would likely consider the street public.  Thus, the court classified the street as a traditional public forum.  The court was also swayed by the fact that there appeared to be a dedication of the street on the subdivision plat for the business park in question, and that the public had impliedly accepted the street as a public street through public use of the street.  The court went on to apply strict scrutiny (although it did not conduct any analysis as to whether the restrictions on the street’s use were content based), and reversed the district court’s order.
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