One of Morris’s murals in New Orleans. Source: The Advocate.

In October, a federal district court in Louisiana denied the City of New Orleans’s motion to dismiss a claim filed by an individual challenging the city’s permit requirement for murals.

In late 2017, Neal Morris, an owner of residential and commercial

AFDI sought to run an advertisement that was nearly identical to a U.S. State Department advertisement. Source: American Freedom Law Center.

In a case that has been percolating for more than five years and which we reported on last year, the Ninth Circuit Court of Appeals reversed a district court

Two men were arrested for disorderly conduct in an anti-abortion demonstration in Little Rock, Arkansas.  In addition to bringing a Fourth Amendment claim against the Little Rock Police Department, the men challenged the Arkansas disorderly conduct statute and the city’s permit requirement as violations of their free speech rights under the First Amendment.  A federal district court dismissed the plaintiffs’ claims, and the Eighth Circuit affirmed on appeal earlier this month.

Arkansas’s criminal code contains several actions that constitute disorderly conduct, including:  fighting; in violent, threatening, or tumultuous behavior; unreasonable or excessive noise; the use of “abusive or obscene language, or mak[ing] an obscene gesture, in a manner likely to provoke a violent or disorderly response; disruption or disturbance of meetings or gatherings; obstructing traffic; and other actions.  The plaintiffs argued that the statute was vague and overbroad.  The appeals court found that the statute was not vague, primarily because it contained a mens rea requirement—that is, that the violator have a particular intent to engage in disorderly conduct.  The court used similar logic in upholding the statute against the plaintiffs’ overbreadth claim, finding that the statute was content neutral and that its objective mens rea requirement precluded an overbreadth challenge.
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Boston’s City Hall Plaza. The flagpoles can be seen on the right in the photo. Source: Boston Globe.

The City of Boston has three flagpoles in the plaza in front of its city hall.  Typically, the city displays an American flag and POW/MIA flag on one pole and the flag of Massachusetts on the second pole.  The third pole is used for the City of Boston flag, or alternatively, the flag of a third party.  The third pole has been used for flags of foreign nations, civic organizations, the LGBT rainbow flag, and others.  Parties can submit applications to fly their flag on the third pole, and the city has guidelines that prohibits flags that involve illegal or dangerous activities or conflict with scheduled events.  The city reviews applications to determine whether a flag is consistent with the city’s message, policies, and practices, but does not have any guidelines as to the content of the flags.  When an applicant was denied the opportunity to place a “Christian flag” on the City Hall on the grounds that the city refrains from flying religious flags on the Plaza, he filed suit.

Late last month, on the plaintiff’s motion for preliminary injunction, a federal district court found for the city.  The court determined that the display of flags in front of City Hall constituted government speech.  Applying the factors established by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court found that flags are a longstanding form of government speech, the flags in front of City Hall are likely understood to be government speech, and the city has effective control over the flags in front of City Hall.  Finding that the flags constitute government speech, that effectively ended the First Amendment inquiry.
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A photo of the cross in Bayview Park. Source: Fox News.

Last week, a three-judge panel of the Eleventh Circuit Court of Appeals held that a 75-year old cross displayed in Pensacola, Florida’s Bayview Park was a violation of certain individuals’ constitutional rights under the First Amendment’s Establishment Clause, which prohibits the establishment of religion.  But the court’s decision was based entirely on its “prior panel precedent” rule—meaning that the court was bound by a 35-year old decision on nearly identical facts—and the panel openly questioned the correctness of its decision.

Three individuals, represented by the American Civil Liberties Union, brought the case in federal district court in Florida.  They alleged that they felt offended by the presence of the cross in the park.  Pensacola moved to dismiss on standing grounds, arguing that the plaintiffs’ injuries were sufficient ethereal so as not to pass muster under current-day standing doctrine.  The parties also filed cross-motions for summary judgment on the question of whether the cross violated the Establishment Clause.
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An aerial view of the Virginia Run Cove development. Source: Google.

Last month, a federal district court in Tennessee denied a motion for preliminary injunction filed by a man who wished to picket a Planned Parenthood location in a business park in Memphis.  The court determined that the private street on which the plaintiff, John Brindley, intended to picket was not a public roadway and therefore was not a traditional public forum requiring content neutral speech regulations.

Planned Parenthood’s offices are located on Virginia Run Cove, a two-lane street that serves multiple businesses located within the park.  The park is zoned as a planned unit development, and the street serves the businesses located within the park.  Brindley sought to protest Planned Parenthood on Virginia Run Cove, but was asked to move by a police officer on the premise that Virginia Run Cove is a private street.  Brindley subsequently moved to a nearby public street, but was dissatisfied that his protest location was nearly 300 feet from his target audience, Planned Parenthood.  Brindley subsequently filed his complaint in federal district court.

In conducting a forum analysis to determine whether Virginia Run Cove was a public forum for First Amendment purposes, the court noted that some public fora are privately-owned.  These areas include public sidewalks that run across private property, sidewalks on private university campuses, and even the streets of corporate-owned communities.  However, the court observed, private areas are not converted into public fora where the owner of the property allows a more limited use of the property.
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The Lindsey-Flanigan Courthouse in Denver. Source: CGL Companies.

Over the past couple of years, we’ve reported on a case involving pamphleteering activities on the plaza that lies outside of the Lindsey-Flanigan Courthouse here in our home city of Denver, Colorado.  Things have gotten interesting again, as the Tenth Circuit last month reversed a decision of the federal district court finding the City and County of Denver in contempt following its decision to arrest an individual for distributing literature on the plaza.

We’ll first bring our readers back up to speed.  This case involved the question of whether a group could lawfully distribute literature about jury nullification on the plaza.  The Second Judicial District, a state court, prohibited demonstrations and literature distribution on the plaza.  The plaza area is owned by Denver, and the state court is a tenant on the property.  Denver Police arrested a member of the pamphleteering group, which resulted in a First Amendment claim against the city and the state court.  Denver stipulated that the plaza was a public forum, and further stipulated that it would not enforce the prohibitions on literature distribution, but the Second Judicial District disagreed with Denver’s position.  The federal court then entered a preliminary injunction against the Second Judicial District, and dismissed Denver from the case.  A prior Tenth Circuit order upheld the preliminary injunction.  On a motion for permanent injunction, the court agreed with the Second Judicial District and found that the plaza was not a traditional public forum.
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The advertisement that the Freethought Society wished to place on Lackawanna County buses. Source: ACLU of Pennsylvania.

In a decision last month, an atheist group lost its challenge to an advertising policy promulgated by the transit system for Lackawanna County, Pennsylvania, COLTS, that prohibited, among other things, religious messages.  Following a trial, a federal district court found in favor of the transit agency, on the grounds that its advertising space was a limited public forum and the policy was viewpoint neutral.  The decision follows several recent decisions that have found transit advertising policies constitutional.

Beginning in 2012, the atheist group, the Freethought Society of Northeastern Pennsylvania, sought to place advertising on buses owned by COLTS.  The Society’s initial advertising attempt was blocked by COLTS on the ground that its advertisement was controversial, in violation of the agency’s advertising policy.  The transit agency rejected similar advertisements submitted in 2013 and 2014 as well, even after COLTS changed its advertising policy to more explicitly prohibit political or religious messages.
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In mid-July, the Sixth Circuit Court of Appeals upheld a district court’s entry of summary judgment for the City of Shaker Heights, Ohio and one of its police officer co-defendants in a sign case arising out of animosity between two neighbors in the wealthy Cleveland-area suburb.

Upon the belief that her neighbors, Richard and Elizabeth Minkowetz, were committing acts of vandalism against her property, Gladys Wilson began posting signs in her windows facing the Minkowetzes’ property.  Examples of the signs’ messages include “nasty lil twit,” “Peeping Tom Exposed,” “Zoomed Zapped and Snapped,” and “Thur. 10:50.”  After the Minkowetzes complained to the city about the signs, the city dispatched one of its police officers to Wilson’s home, and she was later charged with disorderly conduct.  In response, Wilson filed claims against the city, one of its police officers, and its prosecutor under Section 1983 alleging, among other things, a First Amendment retaliation claim.  She also alleged malicious prosecution and equal protection claims.
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