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. Continue Reading In Another Transit Advertising Case, Federal District Court Upholds “No Religion” Policy

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. Continue Reading In a “Nasty” Neighborhood Sign Dispute, Shaker Heights, Ohio Prevails

Under Lexington’s ordinance, newspapers cannot be delivered to residential driveways. Image source: CBS San Francisco.

In a case that we previously reported on last winter, a federal district court in Kentucky ruled last month that Lexington’s law restricting the locations where newspapers may be delivered meets intermediate scrutiny under the First Amendment.  Lexington’s ordinance requires that newspapers be delivered on porches, attached to doors, placed in mail slots, left in distribution boxes, or personally delivered.

The facts of the case can be found in our January 2018 post on the case of Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government.  After the Sixth Circuit Court of Appeals reversed the district court’s entry of a preliminary injunction in the case, the parties proceeded to summary judgment briefing on the understanding that there were no genuine disputes as to material fact.

In ruling on cross-motions for summary judgment, the court first found that the restriction on the locations where newspaper can be delivered is content neutral:  the regulation is not dependent upon the content of the newspaper, but simply identifies the locations on private property where a newspaper may be delivered.  Moreover, the court observed that the city’s goals in reducing litter, visual blight, and public safety were content neutral in purpose.  The court went on to find that the restrictions on delivery were narrowly tailored to these goals. Continue Reading On Summary Judgment, District Court Upholds Lexington Newspaper-Distribution Law

Last December, we reported on a federal district court’s denial of a motion for preliminary injunction relating to the Archdiocese of Washington’s unsuccessful efforts to post Christmas-season advertising on transit vehicles owned and operated by the Washington Metropolitan Area Transit Authority.  Unfortunately for the Archdiocese, Christmas did not come in July either.  Last week, the federal Court of Appeals for the D.C. Circuit affirmed the denial of preliminary injunctive relief.

The facts of the case are available on our post regarding the district court’s decision.

On appeal, the appellate court (which included as a panelist Supreme Court nominee Judge Kavanaugh) agreed with the district court.  First, the court agreed that the advertising space on WMATA transit vehicles constitutes a non-public forum, where the government can exercise greater control over content yet must adhere to requirements of viewpoint neutrality and reasonableness.  In so ruling, the D.C. Circuit joins a majority of federal appeals courts that have now ruled that transit advertising spaces are non-public fora. Continue Reading No Christmas in July for Archdiocese of Washington; Appeals Court Affirms Denial of Preliminary Injunction

Buttons like the one above would have been prohibited from polling places under the Minnesota law. Source: Ken Rudin’s Political Junkie.

Tea Partiers in the Land of 10,000 Lakes, as well as those hipsters who like to wear vintage political t-shirts (think “Nixon’s the One!” or “LBJ All the Way!”) on election day scored a big victory at the Supreme Court last week.  In a 7-2 decision, the Court held that a Minnesota law prohibiting individuals from wearing or displaying certain types of political attire was unconstitutional under the First Amendment.  The Minnesota law in question also prohibited displays of campaign materials within 100 feet of a polling place and the distribution of political materials to be worn at a polling place.

The law was challenged by a Tea Party group, and was upheld by lower courts.

Applying the public forum doctrine, the Supreme Court found in Minnesota Voters Alliance v. Mansky that the interior of a polling place constitutes a nonpublic forum.  In a nonpublic forum, speech regulations must be viewpoint neutral and reasonable in light of the purposes of the forum.  While the Court observed that Minnesota could constitutionally prohibit political attire, buttons, and other paraphernalia from the interior of a polling place, it found that the law in question failed the reasonableness standard.  The Court noted, for example, that the statute failed to define the term “political,” such that voters and those enforcing the law had no standards by which to determine what attire would pass muster.  While local polling places had been issued some guidance on the issue, the Court found that the guidance similarly lacked clarity regarding what constituted political speech.  The Court observed that other states, including California and Texas, had much clearer laws that narrowed the class of prohibited speech to that which advocates for or against a candidate or ballot measure appearing on the ballot. Continue Reading Supreme Court to Minnesotans: Wear Your Political Buttons, Badges, and T-Shirts to the Polls

Tents along Lake Shore Drive in Chicago. Source: Chicago Tribune.

Earlier this month, in a case challenging the denial of permits to erect a homeless “tent city” in front of a former elementary school in the Uptown neighborhood of Chicago, a federal magistrate judge dismissed the organizers’ First Amendment claim.  While one count of the plaintiffs’ complaint will move forward, the order dismisses all of the plaintiffs’ federal claims.

Uptown Tent City Organizers and its leader, Andy Thayer, sought a permit from the City of Chicago to establish a tent city in the former elementary school site.  In 2016, several homeless people had resided at the site, but the city fenced it off and the homeless people moved to various locations under viaducts along the city’s famed Lake Shore Drive.  The plaintiff filed claims in state court challenging the city’s denial of the permit, and the city removed the case to federal court.  The plaintiffs lost a motion for preliminary injunction, and subsequently amended their complaint to add First Amendment free speech and assembly, Eighth Amendment cruel and unusual punishment, Fourth Amendment illegal seizure, Fifth Amendment taking, and various state law claims.  Continue Reading Homeless “Tent City” Is Not Expressive Conduct Protected by the First Amendment, Says Federal Court

The Gentleman’s Playground in Rocky Mount, North Carolina. Source: Yelp

This post was authored by Otten Johnson summer associate Lindsay Lyda.  Lindsay is a rising third-year law student at the University of Colorado Law School.

A few weeks ago, the Fourth Circuit Court of Appeals affirmed a district court’s summary judgment order upholding Rocky Mount, North Carolina’s sexually-oriented business regulations against a First Amendment challenge by an exotic dance club known as “The Gentlemen’s Playground.”  As this is a professional blog, we will refrain from further commentary on the combination of the parties’ names, but invite our readers to conjure up whatever creative taglines come to mind.

American Entertainers has operated the club in Rocky Mount since 2002.  The city requires that all sexually oriented businesses obtain a license.  After discovering that The Gentlemen’s Playground was not licensed, the city sought to enforce its ordinance against the owner.  In response, American Entertainers challenged the constitutionality of the ordinance under the First and Fourteenth Amendments.  The district court granted summary judgment for the city.  On appeal the Fourth Circuit affirmed in part and reversed in part.

American Entertainers asserted that the definition of “sexually oriented business” in the ordinance was overbroad, so as to encompass “conventional, mainstream arts and entertainment.”  The Fourth Circuit rejected the claim and found that the ordinance was adopted for a purpose unrelated to suppression of expression, i.e. to offset the deleterious consequences, like lower property values and increased rate of crime, that accompany exotic dance clubs.  The court further found that the licensing requirement materially advanced the city’s substantial interest.  According to the court, the licensing fee was an acceptable way for the city to counteract some of the administrative and enforcement burdens that exotic dance clubs bring to a city.  The court also found that the ordinance was narrowly tailored to this important interest, noting that American Entertainers offered no evidence that the license itself restricted free speech.

Additionally, American Entertainers challenged two of the license-denial provisions, including one that allowed the city’s police chief to deny a license if the business would not comply with “all applicable laws,” and another that prohibited any applicant under twenty one years old from obtaining a license to operate a sexually oriented business.  The appeals court held that the provision allowing denial for violation of applicable laws was an unconstitutional prior restraint.  It failed to limit the phrase “applicable laws” and was susceptible to the chief of police creating trivial reasons to deny a license.  Ultimately, the court remanded this issue to the district court to determine whether and to what extent this provision is severable from the rest of the ordinance.

Finally, the plaintiff argued that the age restriction infringed upon equal protection and the First Amendment right to freedom of expression.  However, because the equal protection clause of the Fourteenth Amendment does not recognize age as a suspect class, the age restriction needs only to be rationally related to the city’s interest.  The court had no difficulty reasoning that because alcohol is typically served at exotic dance venues, the age restriction was rationally related to the city’s interest in ensuring the business owners of sexually oriented businesses are of legal drinking age.  Therefore, the court affirmed the district court’s denial of the Equal Protection challenge.

American Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d 707 (4th Cir. 2018).

The Ocean City boardwalk. Source: Bill Price III, from Wikimedia Commons.

This post was authored by Otten Johnson summer associate Chelsea Marx.  Chelsea is a rising third-year law student at the University of Denver Sturm College of Law.

Just in time for summer, the federal district court in Maryland has determined that the show must go on for a group of performance artists challenging an ordinance restricting public performance on the Ocean City boardwalk.  In Christ v. Ocean City, which we first reported on last year, a federal district judge concluded that Chapter 62, a new ordinance limiting performance to designated spaces at designated times, was mostly unconstitutional.

The Ocean City Boardwalk Task Force hoped Chapter 62 would survive scrutiny after a lengthy history of successful First Amendment challenges to prior regulations of speech on the boardwalk.  The Mayor and City Council charged the five-member Boardwalk Task Force to draft a new ordinance addressing the “issues that had plagued the Boardwalk” with respect to public safety, traffic congestion, and managing competing uses for limited space.  A cast of eleven street performers, including a puppeteer, stick balloon artist, magician, mime, portrait sketch artist, and musician, filed suit asserting that Chapter 62 violated the First Amendment.

Further background and details of the ordinance are detailed in our earlier post. Continue Reading A Mime, A Stick Balloon Artist, A Puppeteer, and Others Win in Ocean City Boardwalk Regulation Case

A Hustler Hollywood store in Fresno, California. Source: KSFN.

Last month, the Seventh Circuit Court of Appeals affirmed a district court’s denial of an adult business’s motion for preliminary injunction against Indianapolis.  The appeals court found that the business, Hustler Hollywood (HH), was unlikely to prevail on the merits of its as-applied First Amendment claim against the city.

In the case, HH entered into a ten-year lease on a property located in the city’s C-3 commercial zoning district.  It had a problem, though:  the C-3 district prohibits adult entertainment businesses, except with a variance.  When the plaintiff applied for sign and building permits with the city’s Department of Business and Neighborhood Services, it was flagged as potentially disallowed by the zoning code.  While HH submitted various materials to try to convince city staff that it was not an adult entertainment business as defined by the code, staff determined that the use was not permitted in the C-3 district.  The plaintiff appealed to the city’s zoning appeals board, which voted 5-0 to affirm staff’s determination.

Instead of appealing the board’s decision to the Indiana state courts as provided by state statute, HH filed a federal First Amendment claim.  It sought preliminary injunctive relief, but the district court denied the motion.

On appeal, the Seventh Circuit found that the city’s zoning scheme was constitutional under the secondary effects doctrine.  The court held that the city’s regulation of sexually-oriented businesses, which allowed adult entertainment businesses in other zone districts (just not in the C-3 district), was properly aimed at preventing negative secondary effects of such establishments.  The court further found that HH had several alternative avenues for communication, including in several other zoning districts around the city—including the zoning district directly across the street from Hustler Hollywood’s property.  To the extent HH believed that city staff erred in classifying its business as an adult entertainment business, the Seventh Circuit advised that HH should have brought a state court appeal, as the classification of the business is not of First Amendment concern.

The Seventh Circuit’s decision in the case is yet another indicator that the secondary effects doctrine remains alive and well following Supreme Court cases that have walked back a more liberal content neutrality standard.

HH-Indianapolis, LLC v. Consolidated City of Indianapolis and Cnty. of Marion, 889 F.3d 432 (7th Cir. 2018).

Jack Phillips of Masterpiece Cakeshop. Source: Reuters.

While the Rocky Mountain Sign Blog is geared toward issues that involve free speech and land use law, we geek out about any Supreme Court case that addresses First Amendment issues, even those outside of our weird little land use world.  Yesterday, our appetite for Supreme Court First Amendment law was only moderately satiated.  The U.S. Supreme Court issued its much-awaited ruling in the hot-button First Amendment case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

In the case, a gay couple sought relief when a baker refused to bake them a wedding cake on the grounds that his religious beliefs did not support same-sex marriage.  The Colorado Civil Rights Commission found that Colorado’s anti-discrimination laws, which prohibit discrimination on the basis of sexual orientation, prohibited the baker from denying service to the couple, and the Colorado Court of Appeals affirmed the Civil Rights Commission’s decision.

In a 7-2 decision, the Supreme Court reversed, finding that statements made by members of the Civil Rights Commission evinced hostility toward religion, and that the Commission’s action thus violated the Free Exercise Clause of the First Amendment.  During their deliberations, Commission members had commented on prior use of religion to condone discriminatory action, and made other statements that the Supreme Court interpreted as being hostile toward religion.  Justice Kennedy authored the majority opinion, and Justices Kagan, Gorsuch, and Thomas authored concurrences in the decision.  Justice Ginsburg, joined by Justice Sotomayor, dissented, on the grounds that they did not believe that any statements of the Commission evidenced discrimination.

While the entire Court declined to address the appellant’s free speech claim, the conservative duo of Justices Thomas and Gorsuch wrote separately to address that issue.  Justice Thomas began his concurrence by noting that the Court has previously held anti-discrimination laws unconstitutional as applied when the discriminatory conduct at issue is expressive, citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston and Boy Scouts of America v. Dale.  The two justices, applying a long line of cases that have held various forms of artistic expression to be First Amendment-protected, found that Masterpiece Cakeshop’s baker, Jack Phillips, engages in expressive activity when he creates wedding cakes.  Once they found that Phillips’s cake-making was expressive, Justices Thomas and Gorsuch would have applied strict scrutiny review.  They expressed concern with the fact that Colorado law would apparently command someone engaged in expressive activity to express particular views, whereas prior Supreme Court case law makes clear that offensive speech cannot constitutionally be prohibited.

While the majority opinion in Masterpiece Cakeshop gives us little with respect to the Court’s direction on free speech issues, the concurrence of Justice Thomas at least hints at the direction that two of the justices would lean.  We’ll have to wait for the next major religion-free speech battle to see how this one plays out.

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, ___ S. Ct. ____, 2018 WL 2465172 (U.S. Jun. 4, 2018).