The Portland ordinance required a sign much like this one to be posted on an unreinforced masonry building. Source: Willamette Week.

This post was authored by Alexandra Haggarty.  Alex is a summer clerk at Otten Johnson, and a rising 3L at the University of Colorado Law School.

In a case challenging a Portland, Oregon ordinance, a federal judge granted a preliminary injunction to a group of building owners who would have been compelled to post a potentially misleading message.  The judge, suspecting the city was not forthcoming about its real motive behind the ordinance, found the requirements failed strict scrutiny and burdened First Amendment rights.

Portland has long encouraged owners of unreinforced masonry buildings (“URMs”) to retrofit and reinforce their properties to be stronger in the event of a major earthquake, but has remained unable to garner enough political and public support to mandate doing so.  Instead, it implemented an ordinance requiring owners of designated buildings to display exterior placards disclosing the risks of major earthquakes in URMs. The ordinance required the placard state: “This is an unreinforced masonry building. Unreinforced masonry buildings may be unsafe in the event of a major earthquake.”  The ordinance also required owners to (1) include a tenant notification provision in lease applications disclaiming risk and (2) document compliance with the ordinance.
Continue Reading

One of the signs at issue in the case. Source: Riverfront Times.

In a case that we reported on around this time last year, late last month, the Eighth Circuit Court of Appeals reversed a federal district court’s ruling denying a motion for preliminary injunction against Bel-Nor, Missouri’s “one sign” rule.  The Eighth Circuit’s ruling means that the city will be temporary enjoined from enforcing the law.

The facts of the case are discussed in our earlier post.

The court of appeals had no problem finding that the city’s sign regulation violated the First Amendment.  The law allows just one freestanding yard sign, as well as one flag.  The definition of “flag” in the city’s code indicates that the object must be a “symbol of a government or institution,” thus drawing a distinction based on the message a speaker conveys.  Applying the Supreme Court’s holding in Reed v. Town of Gilbert, the court found the regulation was content based.  The court then found that the code was not narrowly tailored so as to pass muster under strict scrutiny.
Continue Reading

Earlier this month, a federal district court in Kansas awarded summary judgment to a plaintiff who claimed that the City of Williamsburg’s sign code violated the First Amendment.

The plaintiff, Eric Clark, placed several signs and other objects in a city right-of-way easement.  The city issued a notice of violation, which set off a series of interactions between the city’s code enforcement officer and Clark, and Clark issued several letters to the city claiming various violations of his civil rights.  Although the city desisted from further enforcement action, Clark, representing himself, filed a lawsuit against the city.
Continue Reading

The American Legion in Howell Township. Source: www.whmi.com.

Two weeks ago, a federal district court granted the motion to dismiss of Joe Daus, the zoning administrator for Howell Township, Michigan, in a case challenging the township’s billboard regulations.

Crossroads Outdoor is a billboard company that sought to install a sign on property owned by the local American Legion post in Howell Township.  The township, through Daus, denied the variance on the grounds that it was not permissible to place the sign in the parking lot of the American Legion.  After some back and forth on the application, the township eventually passed a moratorium on new signs in 2018 pending the adoption of a new sign ordinance.  Crossroads’s sign application has not yet been approved.
Continue Reading

Tattooing is protected by the First Amendment. Source: Creative Commons.

Two weeks ago, a federal district court in California granted preliminary injunctive relief to a tattoo shop owner who challenged the City of Montebello, California’s geographic restrictions on body art establishments.

Montebello’s regulation prohibits tattoo parlors within 1,000 feet of certain sensitive uses, including residential properties, schools, libraries, and religious institutions.  The effect of the regulation is to limit such establishments to two small shopping centers in the city.  Tattoo parlors are also subject to a conditional use permit requirement, in which the city is required to determine that the use will not have an adverse effect on surrounding properties and that it is consistent with city planning goals.
Continue Reading

An apartment advertised for short-term rental. Source: Creative Commons.

Last month, the federal Ninth Circuit Court of Appeals affirmed a district court’s denial of a preliminary injunction in a case initiated by HomeAway and Airbnb challenging the City of Santa Monica, California’s short-term rental regulations.  The plaintiffs in the case alleged violations of the First Amendment right to freedom of association.

Located on the Pacific coast and known as a tourist destination, by early 2018, Santa Monica had nearly 2,000 Airbnb or HomeAway listings—in a city of just 90,000 residents.  In response to the various problems created by short-term rentals, the city council passed an ordinance limiting short-term rentals to only “home-shares,” where the resident of the unit is present during the rental period.  Santa Monica also collects taxes on short-term rentals, requires licenses, and imposes disclosure obligations on hosts.  HomeAway and Airbnb filed a variety of challenges to the ordinance, and moved for a preliminary injunction, which was denied by the district court.
Continue Reading

The rats and cats are back.  We first reported on this case in 2016, after the Seventh Circuit determined that it might be moot.  As it turns out, the case was not moot, and “Scabby the Rat” returned to the appeals court again.  In a ruling last month, the Seventh Circuit found that the district court properly determined that the town’s ordinance prohibiting the inflatable rat was not content based and accorded with the First Amendment.

The facts of the case can be found in our earlier post.  After the Seventh Circuit suggested that the case might be moot due to an agreement between the union and employer, the case went back to the district court.  The district court subsequently found the case not to be moot, as the union was seeking damages for its inability to place the rat in the right-of-way.  In its ruling, the district court then found that the ordinance in question—which prohibited the placement of private signs in town right-of-ways—was content neutral and survived First Amendment scrutiny.
Continue Reading

Early this month, the federal district court for the Southern District of New York ruled that a New York City law requiring food service industry employers to provide a payroll deduction system for their employees to make donations to non-profit organizations did not violate the First Amendment rights of such employers.

New York City’s law became effective in late 2017.  Fast food establishments are required to create and maintain deduction systems.  Upon request from an employee, the establishment must deduct a donation to a non-profit organization from the employee’s pay check and remit it to the designated organization.  Non-profit organizations that receive funds through the system are required to reimburse employers for the cost of maintaining the deduction system, if requested by the employers.
Continue Reading