Last week, in a case that we reported on several years ago, the Seventh Circuit Court of Appeals has ruled that an Illinois village’s restriction on painted wall signs passes constitutional muster. The case, which originated
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.…
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.…
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. …
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.…
In a case that we’ve reported on previously, the Third Circuit Court of Appeals held last week that the Pennsylvania Department of Transportation’s rules pertaining to billboard permitting violate the First Amendment. The court’s decision is yet another in a string of decisions from around the country making it more difficult for government to restrict the proliferation of off-premises signage.
To refresh our readers’ memory, Pennsylvania regulates billboards under its Outdoor Advertising Control Act of 1971. That law prohibits the placement of billboards within 500 feet of a highway interchange or rest area, with an exception for official signs or on-premises “for sale or lease” signs. The law also requires that a billboard advertiser obtain a permit from the state’s transportation department, but does not set forth a timeframe for such a permit to be processed.
Adams Outdoor, a billboard company, sought to install a billboard in Hanover Township, Pennsylvania. After processing the permit application for over a year, the state’s transportation department eventually denied the permit on the grounds that the sign violated the interchange restriction. Adams challenged the interchange restriction and permitting procedures under the First Amendment, and also claimed that the billboard law was unconstitutionally vague.…
This blog post was authored by Alexandra Haggarty, a summer clerk with Otten Johnson. Alex is a rising 3L at the University of Colorado Law School.
A federal judge in North Dakota recently granted a temporary restraining order to enjoin the City of Mandan from enforcing a content-based ordinance regulating murals and signs.
The ordinance requires building owners to obtain a permit before displaying a sign or figurative wall mural. A commission reviewing applications makes decisions based on guidelines and regulations, including those prohibiting murals that are commercial, have words as a dominant feature of the art, have political messages, or are on the front of the building.
The Lonesome Dove, a saloon that’s been a fixture on a main road for twenty-eight years, had until recently only decorated its exterior with beer ads. Most recently, it had a Coors Light logo painted on the front wall. Although the saloon never sought a permit for the logo, it was never cited for violation. Seeking to reinvigorate its exterior, the saloon – not knowing it needed a permit – painted a 208 square-foot Western-themed “Lonesome Dove” mural on the front of the building in 2018. …
In a widely-anticipated decision, the U.S. Supreme Court ruled late last month that a large concrete cross located on public property at a major intersection in Bladensburg, Maryland, could remain in place. The nearly 90-year-old cross, which was placed to honor victims of World War I, had been challenged by an atheist organization as a violation of the First Amendment’s prohibition on establishment of religion.
In a fractured decision, seven of the Justices agreed that the cross could stay. Writing for a plurality of the Court, Justice Alito argued that, although the Latin cross has a religious meaning, its longtime placement at a major intersection as a war memorial meant that it had taken on a secular meaning as well. In light of this longstanding history, he concluded that the cross was not a violation of religious liberty. In rendering his opinion, Justice Alito eschewed use of the widely-criticized Lemon test, developed by the Supreme Court in 1971, which looks at the government’s purpose and the effect of a regulation to determine whether an unconstitutional establishment of religion is created. Justices Breyer and Kagan concurred in the opinion, noting that each Establishment Clause case must be reviewed individually and observing that no particular judicial test works in every situation.…
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.…