It’s been a little while since we’ve done a news update, but here are some of the good stories we’ve been tracking over the past several weeks:
This post was authored by Otten Johnson summer law clerk Matt Bender. Matt is a rising third-year law student at the University of Denver Sturm College of Law.
A Tennessee case is inquiring into the “similarly situated” requirement for Equal Protection claims and will likely decide the constitutionality of the Tennessee Billboard Act (TBA). While the outcome of the case is far from finalized, Thomas v. Schroer, which stems from the denial of the plaintiff’s sign application, has already raised some interesting questions about the reach of the First Amendment under Reed v. Town of Gilbert.
Continue Reading How Similar is “Similarly Situated”? And the Constitutionality of the Tennessee Billboard Act
This post was authored by Otten Johnson summer law clerk Alex Gano. Alex is a rising third-year law student at the University of Colorado Law School.
On June 1, a three-judge panel of the U.S. Court of Appeals for the Third Circuit vacated a lower federal court’s dismissal of a First Amendment challenge to a City of Pittsburgh ordinance that created a fifteen-foot “buffer zone” around entrances to abortion clinics. The lower court dismissed the challenge filed by five self-described “sidewalk counselors” based on a 2009 opinion by the Third Circuit that upheld the same ordinance. Writing for the Court, Judge Kent Jordan interpreted the Supreme Court’s decision in McCullen v. Coakley to compel a more vigorous “narrow-tailoring” analysis to burdens on speech. Judge Jordan’s opinion also implies that McCullen will have the effect of prolonging litigation over buffer zone ordinances, which have become a cutting edge of First Amendment jurisprudence in recent years.
Continue Reading Third Circuit Revives Challenge to Pittsburgh’s Abortion Clinic “Buffer Zone” Ordinance, Portends of More Litigation to Come
This post was authored by Otten Johnson summer law clerk Alex Gano. Alex is a rising third-year law student at the University of Colorado Law School.
On May 23, a federal judge in Maine issued a preliminary injunction against enforcement of a portion of that State’s Civil Rights Act that prohibited “making noise” with the intention of either “jeopardize[ing] the health of persons receiving health services” or “interfer[ing] with the safe and effective delivery” of health services. The ruling in March v. Mills—together with another opinion issued by a federal appellate court in Pennsylvania nine days later—mark the latest chapter in a twenty-year jurisprudential saga on the constitutionality of speech restrictions around abortion clinics.
Continue Reading Federal Judge Enjoins Enforcement of Maine “Noise Provision” as Not Content-Neutral
This post was authored by Otten Johnson summer law clerk Matt Bender. Matt is a rising third-year law student at the University of Denver Sturm College of Law.
Herson v. City of Richmond was all set on October 21, 2014, when the Ninth Circuit Court of Appeals issued its first opinion on the case, affirming the dismissal of the plaintiff’s First Amendment claims. However, after the United States Supreme Court decided Reed v. Town of Gilbert, the Supreme Court vacated the original Ninth Circuit Herson decision so that the case could be reconsidered under Reed. A year and a half later on January 22, 2016, the Ninth Circuit again issued an opinion on Herson v. City of Richmond. While the Supreme Court thought things had changed due to Reed, the Ninth Circuit apparently did not as this second opinion is word-for-word identical to the first.
Continue Reading A Pre-Reed Case Decided in a Very Similar Post-Reed World
In a case that we reported on back in March, the California Supreme Court denied to review a state appellate court decision upholding Los Angeles’s ban on off-premises billboards. The billboard company that was the plaintiff in the case sought to have the California courts interpret the state’s constitution to prohibit the on-premises/off-premises distinction
On Monday, the Seventh Circuit Court of Appeals determined that Chicago’s ban on the peddling of merchandise on sidewalks adjacent to Wrigley Field was a constitutional time, place, and manner regulation that survived intermediate scrutiny. The ordinance was challenged by Left Field Media, which publishes a magazine called Chicago Baseball and sells copies outside of Wrigley Field before Chicago Cubs home games. Chicago’s “Adjacent Sidewalks Ordinance” prohibits peddling merchandise on any sidewalk adjacent to Wrigley Field, for the purpose of allowing safe pedestrian passage. Because the Adjacent Sidewalks Ordinance prohibited the sale of all merchandise—“[t]he ordinance applies as much to sales of bobblehead dolls and baseball jerseys as it does to the sale of printed matter”—the appeals court found that the ordinance was content neutral in light of Reed v. Town of Gilbert. The appeals court’s decision upholds the prior denial by a federal district judge of the plaintiff’s motion for a preliminary injunction.
Continue Reading Appeals Court: Wrigley Field Peddling Ordinance Not a First Amendment Violation
Last week, a federal district court in Indiana rejected a billboard company’s claim that sign code amendments passed by Indianapolis following the Supreme Court’s decision in Reed v. Town of Gilbert violated the company’s First Amendment rights. Although the decision was a win for the city’s current code, the city is being forced to pay damages to the billboard company for the monetary losses faced by the company prior to the city’s passage of the sign code amendments.
Continue Reading Post-Reed Indianapolis Sign Code Amendments Survive Judicial Scrutiny; City Must Pay Damages for Past Errors
We haven’t done a news update in a few weeks, so here are some stories our readers might enjoy:
Following cross-motions for summary judgment, last week, a federal court determined that a Michigan township’s billboard restrictions were constitutional, but found that the variance provisions contained in the township’s zoning ordinance were an unconstitutional prior restraint on speech. In the same order, the court rejected a billboard owner’s regulatory taking, equal protection and unconstitutional tax claims.
Continue Reading Federal Court in Michigan Upholds Township Billboard Regulations, but Variance Criteria are too Subjective