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).

New Mexico state fair. Source: Beate Sass, https://beatesass.wordpress.com/2013/09/21/the-new-mexico-state-fair/.

Green chile is undoubtedly a popular product at the New Mexico State Fair.  But can another “green” product—medicinal marijuana—be displayed at the state fair?  That question now rests with a federal district court.

New Mexico allows vendors of food, medical, and other products to display their products in booths at the annual state fair.  New Mexico Top Organics—Ultra Health, Inc., a medical cannabis company, sought to display its medical cannabis products at the fair, but New Mexico has a policy disallowing the display of drugs or drug paraphernalia at the fair.  In 2016 and 2017, the state prohibited Ultra Health from displaying its products, or images of its products, at the fair.  Ultra Health determined that, without images or examples of its products, it could not meaningfully participate in the fair, and it subsequently brought suit against several state fair officials, alleging violations of its free speech rights under the First Amendment. Continue Reading Land of Enchantment? Court Says Display of Marijuana is First Amendment-Protected, But Time Will Tell Whether State Fair Can Prohibit It

The U.S. District Court for the Southern District of New York recently declared unconstitutional New York City’s ban on advertising in vehicles other than exempted taxis.  Under the city’s program, medallion and certain other taxis could display advertising, including seat-back television content and advertising, but other for-hire vehicles (“FHVs”), like those used for Lyft and Uber rideshare services could not do the same. Vugo, Inc., a seat-back video advertising company, challenged New York City’s regulations on the ground that their distinction between taxis and other FHVs violated the First Amendment.  On the parties’ cross motions for summary judgment, the district court agreed.

The court reviewed the regulations under Central Hudson’s four-part commercial speech test.  Under that test, if the speech regulated is neither false nor unlawful (a component not at issue in this case) and the government can show a substantial interest to justify its regulation, the court then considers whether regulation directly advances the government’s interest and whether it is narrowly drawn and not more extensive than necessary to serve the interest.

On the second prong, the court agreed with New York City that its interest in regulating vehicle advertisements as annoyances to passengers was substantial—but beyond that point the city’s arguments fared worse.  Most problematic for the court was the city’s justification for allowing advertising in taxis but not other FHVs: that the advertisements allowed operators to offset the cost of expensive ride- and fare-monitoring equipment the city required taxis to maintain.  That justification for the distinction shared no relationship to the city’s concerns about passenger annoyances, however.  That is, the advertisements were equally annoying irrespective of whether they helped offset other costs.  And because the taxi exemption still allowed advertising for more than 370,000 daily trips, the court doubted that the distinction between taxis and FHVs advanced the city’s other stated interest in aesthetics.

The court also found the exemption lacking with respect to Central Hudson’s fourth prong.  Though it noted that the commercial speech test does not require cities to employ the least restrictive means to achieve their goals, it concluded New York City’s outright prohibition on advertising in FHV was far too broad.

The court’s suggested alternative: just let passengers turn the ads off.

View the complete decision here: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2015cv08253/448867/63/

Photo credit: slgckgc, flickr. Used pursuant to license: https://creativecommons.org/licenses/by/2.0/.

Don Karns and Robert Parker are evangelical Christian ministers.  The New Jersey Transit Corporation is a government entity providing mass transit services throughout the Garden State.  All three arrived together in court (the first time) after the preachers began proclaiming their creed on a Princeton-area train platform, leading first to passenger complaints and, soon afterward, to their arrest for obstruction of justice and defiant trespass.  Because NJ Transit employed the officers involved, Karns and Parker brought a Section 1983 action alleging that both the officers and the agency had violated the First and Fourteenth Amendments by selectively enforcing NJ Transit’s platform-speech-permitting policy, retaliating against their exercise of First Amendment rights, and restricting their ability to record the encounter.

The district court dismissed those claims, and the Third Circuit affirmed.  The bulk of the opinion concerned an issue interesting in its own right but tangential to the focus of this blog—whether the NJ Transit, in its official capacity, enjoyed 11th Amendment immunity.  After concluding that the 11th Amendment did shield NJ Transit as an arm of the state, the remainder of the opinion dispatched with the preachers’ individual-capacity 1983 claims against the officers themselves.  As to the selective enforcement argument, the ministers had presented no evidence to show that the officers had or would have treated any other platform-goers differently, so the claim failed as a factual matter.  On the First Amendment retaliation claim, Karns and Parker could not overcome the officers’ assertion of qualified immunity because no clearly established law demonstrated that an arrest supported by probable cause could constitute actionable retaliation.  The preachers’ third theory met a similar end: unable to find any clearly established law barring the officers from restricting video recording of police interactions, the court concluded that qualified immunity protected them from the preachers’ claims.

Complete opinion available here: https://law.justia.com/cases/federal/appellate-courts/ca3/16-2171/16-2171-2018-01-11.html

A Street Preacher (though not the one in this case) | by frankieleon, flickr. Used subject to reuse label.

The concrete pathways at the corner of University Boulevard and Hackberry Lane in Tuscaloosa, Alabama, may look and quack like

sidewalks, but as constitutional matter, the Eleventh Circuit considers them something less: an extension of the University of Alabama campus.  In a recent decision, that circuit concluded the sidewalks were not a “traditional public forum” within which the Constitution confines government control of speech and other demonstrations, but rather a “limited public forum” to which the University of Alabama could constitutionally control access. The practical result?  The unlicensed street preacher who sued ‘Bama won’t get a preliminary injunction against the university’s grounds-use policy.

The plaintiff preacher, Continue Reading Can University of Alabama control preacher’s access to campus sidewalks? 11th Circuit: Roll Tide.