In April, we blogged about Eubanks v. Woods, in which the Sixth Circuit reversed a district court’s grant of summary judgment in favor of Ohio police officers sued for First Amendment retaliation and unlawful arrest after the officers arrested the plaintiff for speech against the police.  Also in April, the same court heard Novak v. City of Parma, in which a plaintiff appealed a district court’s grant of summary judgment in favor of Ohio police officers for First Amendment retaliation and unlawful arrest after the plaintiff was arrested for speech against the police.  This time, the Sixth Circuit affirmed.

The opinion begins “Anthony Novak thought it would be funny to create a Facebook page that looked like the Parma Police Department’s.” But beyond being “funny,” Novak asserted that the masquerading social media page was an exercise of his fundamental American right to mock government officials.

Continue Reading Cop Critic Unsuccessful on Constitutional Claims in the 6th Circuit

There is quite the fervor among certain American parents about the teaching of critical race theory in public schools.  In a recent case out of Missouri, Judge Stephen Clark granted an injunction in favor of one such group of parents.  Brooks v. Francis Howell Sch. Dist., 4:22-CV-00169-SRC, 2022 WL 1185147 (E.D. Mo. Apr. 21,

“This case is about a tree house.” Lepper v. Vill. of Babylon, 18CV7011JMAAYS, 2022 WL 939719, at *2 (E.D.N.Y. Mar. 29, 2022).  In a recent federal case out of Long Island, NY, plaintiffs John and Noelle Lepper and their minor children brought an action against the Village of Babylon and several Village officials. The plaintiffs asserted a slew of constitutional claims related to a tree house that the plaintiffs constructed on their property.  Their claims included, among others, First Amendment retaliation, violations of due process and equal protection, excessive fines in violation of the Eight Amendment, and conspiracy.

Mr. Lepper first began constructing a tree house in his yard after finding a hypodermic needle on the ground near where his children play.  The plaintiffs did not apply for a building permit prior to construction, despite the fact that the Village required building permits for tree houses, playgrounds, and outdoor gyms with lot areas of over 90 square feet.

Continue Reading U.S. District Court Rejects Tree House Builder’s Federal Claims

A few years ago, Joshua Herridge was waiting outside of a ZZ Top concert in Montgomery County, Texas, but unlike most people gathering near the event hall, he was not there to see the band.  He was spreading his religious message by preaching, holding signs, and leafletting near a right-of-way outside of the large pavilion.  Herridge was eventually approached by officers and asked to relocate his activities to a corner across the street.

Herridge brought suit against Montgomery County and the County’s Fire Marshal in the U.S. District Court for the Southern District of Texas, claiming that the County’s attempt to relocate him from his street pulpit violated his rights under the First and Fourteenth Amendments.  The district court found for the County, holding that Montgomery had a significant interest in removing people engaging in activities which entice people to stop and listen during crowded events, since these holdups can cause bottlenecks in foot traffic which redirect pedestrians into active roadways and increase their likelihood of being struck by cars.  Because the County limited its policy to a single block, provided an alternative space for preaching across the street, and only enforced the policy during large events, the district court found that the County’s policy was narrowly tailored.  Herridge appealed to the Fifth Circuit.

Continue Reading Fifth Circuit Remands Ban on Leafletting in Large Crowds

On Thursday, in the case of City of Austin v. Reagan National Advertising, a case on which we’ve previously reported, the U.S. Supreme Court ruled that the City of Austin, Texas’s off-premises sign regulations were permissible under the First Amendment.  The Court’s ruling ensures that state billboard laws and thousands of local sign regulations that distinguish between on-premises (i.e. signs whose messages relate to an activity occurring on the same property where the sign is located) and off-premises signs (i.e. billboards) will remain intact and constitutional.

In the case, Austin denied permits to two billboard companies that were seeking to convert existing, static billboards to digital signs.  The billboard companies challenged, and the city removed to federal court.  The district court rejected the billboard companies’ challenge.  The Fifth Circuit Court of Appeals reversed, holding that the city’s sign code, which prohibited the erection of new off-premises advertising signs and further prohibited technological changes to nonconforming signs, violated the First Amendment.  The appeals court’s decision was based on the conclusion that the regulation was content based.  Under prior cases, including the 2015 ruling in Reed v. Town of Gilbert, the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect.  The appeals court’s holding in the case was premised upon the fact that the off-premises advertising restriction related specifically to the content of a sign.  Under the sign code, if the sign’s message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited.
Continue Reading U.S. Supreme Court Rules in Favor of Austin, Texas in Billboard Case, Upholds Off-Premises Sign Regulations

Stepping beyond the strict confines of sign law this week, we turn to a Texas case exploring new boundaries in First Amendment law: regulations on drone footage.  Late last month, the U.S. District Court for the Western District of Texas struck down those regulations as unconstitutional speaker-based restrictions that were also impermissibly vague.

By statute

In 2021, the San Francisco International Arts Festival (“SFIAF”) and affiliated artist Nkechi Emeruwa were denied permits for two outdoor performance events due to city and state limitations on public gatherings implemented in response to the COVID-19 pandemic.  Together, SFIAF and Emeruwa brought suit in federal district court against San Francisco Mayor London Breed claiming the denials were unconstitutional.  Specifically, the plaintiffs sued Breed for violations of freedom of expression, equal protection, and due process under 42 U.S.C. § 1983.  Even after filing three amended complaints, the plaintiffs’ constitutional claims were still insufficient to withstand dismissal.

Continue Reading Court Dismisses with Prejudice Complaint that Permit Denials were Unconstitutional

Last month, the Sixth Circuit reversed a district court’s grant of summary judgment in favor of six Ohio police officers sued for unlawful arrest and retaliation against the free expression of protected speech.

In 2016, Michael Wood entered a county fair sporting an uncensored t-shirt that read “F**k the Police.” Within a few hours, six police officers and fairgrounds’ director Dean Blair had descended upon Wood asking to see the offending shirt. Although Wood had since covered up or changed out of the t-shirt, the officers heeded Blair’s demand that Wood be removed from the fair.  Wood agreed to go, but not quietly; as he was escorted off of the fairgrounds, Wood leveled profane insults at Blair and the officers and cited violations of his First Amendment right to free speech.  The officers then arrested Wood for disorderly conduct.

Continue Reading Cop Critic Prevails on Constitutional Claims in the 6th Circuit

“Love letters” will live a little longer in Oregon real estate transactions after the federal district court in Portland issued a preliminary injunction on a new state law banning the practice.

In a real estate market where multiple buyers compete for seemingly every home, creativity can afford an edge.  So it is that real estate agents often encourage “love letters” from buyers to sellers—those hand-crafted notes explaining (more or less) that the seller’s home is the stuff of dreams and would receive care and affection only if sold to the letter writers.

Evidence suggests these letters do in fact give buyers an edge.  It also suggests that they can inject discrimination against protected classes, as sellers, consciously or not, select buyers who share their own traits.  Worried that love letters were perpetuating biases and historic discrimination, the Oregon legislature banned the practice in 2021, in a law that limited brokers to exchanging nothing more than the “customary documents.”

Real estate brokerage Total Real Estate Group challenged the law in federal court, alleging that it abridged
Continue Reading Oregon Ban on Real Estate “Love Letters” Enjoined

Allegations of a politically motivated lay-off were the subject of a recent U.S. District Court decision out of Gary, Indiana.  In Moore v. Calumet Township of Lake City, Plaintiff Marsha Moore filed suit against Calumet Township of Lake County and the Calumet Township Trustee, Kimberly Robinson, claiming that Defendants violated her First Amendment right to political association when they terminated her employment. 2:18-CV-106-TLS, 2022 WL 196366, at *1 (N.D. Ind. Jan. 21, 2022).  In 2014, Ms. Moore, who had worked in the Calumet Township Trustee Office since 1990, actively supported and campaigned for the reelection of her then-supervisor, Mary Elgin, to the Township Trustee position.  Ms. Robinson, one of the defendants, was the opposing candidate in the race.  On several occasions Ms. Robinson witnessed the plaintiff campaigning in an Elgin t-shirt, holding an Elgin sign, and displaying an Elgin bumper sticker on her car.

Continue Reading Political Association Claims Brought by Fired Government Employee Survive Summary Judgment