Early this month, the federal district court for the Southern District of New York ruled that a New York City law requiring food service industry employers to provide a payroll deduction system for their employees to make donations to non-profit organizations did not violate the First Amendment rights of such employers.

New York City’s law became effective in late 2017.  Fast food establishments are required to create and maintain deduction systems.  Upon request from an employee, the establishment must deduct a donation to a non-profit organization from the employee’s pay check and remit it to the designated organization.  Non-profit organizations that receive funds through the system are required to reimburse employers for the cost of maintaining the deduction system, if requested by the employers. Continue Reading Court Upholds New York City’s Fast-Food Payroll Deduction System For Donations

We at the Rocky Mountain Sign Law are pleased to announce the following webinar from our friends at the American Planning Association’s Planning and Law Division:

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning and Law Caselaw Update on Thursday, January 31st, 2019 from 1:00 to 2:30 p.m. ET. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

The U.S. Supreme Court, federal courts, and state courts all play an important role in shaping planning throughout the country. This annual review delves into the important cases, the decisions that were made — or not made — and how this will affect planning at many levels.  It will also consider new legislative developments, both at the local and federal levels, which may influence the future of planning.  Speakers are John Baker, Esq., founding attorney of Greene Espel,  Deborah M. Rosenthal, Esq., FAICP, partner at Fitzgerald Yap Kreditor LLP, and Alan Weinstein, Esq., Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law and Professor of Urban Studies at CSU’s Maxine Goodman Levin College of Urban Affairs.

Register here

Ted Pelkey’s middle finger to the Town of Westford. Source: boston.com.

Fortunately for those of us in the practice of First Amendment-related law, expressive conduct can be wildly entertaining.  And in Westford, Vermont, a local land use dispute has turned into a full-blown First Amendment fiasco.

Apparently operating on the old premise of “I’m from Vermont, I do what I want,” Ted Pelkey, a resident of Westford, decided to pursue a creative approach to expressing his First Amendment rights by erecting a decorative, 16-foot-tall, 700-pound wooden statue on his property.  That statute was, however, of a middle finger.  The statue, aimed directly at the local town hall, was erected in response to the Town’s denial of Pelkey’s application to construct a garage on his property.

While the particulars of the story can be found here, it appears that Westford’s sign regulations do not prohibit Pelkey’s statue.  The Westford sign code is contained in Section 326 of the Town’s Land Use and Development Regulations.  Pelkey’s middle finger meets the height and size limits for signs, and it may even be exempt from regulation as a “residential decorative sign.”  Although some might question whether the town should allow the sign, Supreme Court case law going back 50 years tells us that a middle finger–and the message it entails–may not be banned because it offends some community members.  So it seems as though Westford will have difficulty requiring Pelkey to remove his “decorative sign.”

Merry (expletive) Christmas, Westford!

New Jersey bars may now post signs this like this one. Source: steezdesign.com.

Last month, a federal court ruled that New Jersey’s prohibition on “BYOB” advertising—that is, advertising by drinking and entertainment establishments allowing patrons to bring their own alcoholic beverages—violated the First Amendment.  As a result of the court’s ruling, Garden State restaurants will now be allowed to post advertisements encouraging their patrons to bring their own wine and beer.

New Jersey law allowed patrons to bring wine or beer onto the premises of establishments that are not licensed to serve alcoholic beverages, but prohibited such establishments from advertising that it was permissible to do so.  An Atlantic City nightclub, Stiletto, filed suit in federal district court against Atlantic City and the state, seeking to invalidate the state law.  Stiletto wished to advertise that patrons could bring their own beverages to the nightclub. Continue Reading New Jersey Prohibition On “BYOB” Advertising Found Unconstitutional

Donald Burns’s current home in Palm Beach. Source: curbed.com.

Earlier this year, after a telecom millionaire with a checkered past challenged the Town of Palm Beach, Florida’s architectural review ordinance on First Amendment grounds, a federal magistrate judge in Florida issued a report and recommendation finding that the house proposed by the applicant was not entitled to First Amendment protection.  The court then entered summary judgment in favor of the town.

Donald Burns sought to construct a new, modern home in a neighborhood otherwise characterized by more traditional architecture.  He filed an application in 2014 to demolish his existing home and construct the new house.  His self-declared intent was to distinguish himself from his neighbors and to communicate modernist design elements to the community.  Neighbors opposed the project.  After reviewing several iterations of the proposed design, the town’s Architectural Commission denied Burns’s application in 2016.  Burns then filed suit, alleging violations of the First Amendment as well as claims under the Due Process and Equal Protection clauses of the Fourteenth Amendment.

The court first iterated that it was the plaintiff’s burden to establish that the activity in question was expressive conduct protected by the First Amendment.  The court considered the Eleventh Circuit’s two-part test for determining whether conduct receives First Amendment protection, which requires analyzing whether the actor intends to communicate a message and whether there is a “great likelihood” that a reasonable viewer would understand the conduct is communicative.  The court also considered case law on the distinction between commercial merchandise and expressive products.  The court noted that only two prior cases had addressed questions of whether architecture constituted protected speech:  a 2004 federal district court case in Nevada held that residential architecture was not protected, while a 1992 Washington case found that religious architecture was sufficiently expressive so as to receive First Amendment protection.

Applying the test typically applied to determine whether merchandise is expressive, the court found that Burns’s proposed home was not expressive conduct deserving of First Amendment protection.  The house, in the court’s eyes, had a predominantly non-expressive purpose:  it was intended for residence by an individual or family.  Additionally, the court found that it was unlikely that a reasonable person would view the house as expressive conduct.  Accordingly, the court declined to review the architectural review ordinance under the First Amendment.

The district court adopted the magistrate’s report and recommendation in late September.  The case is now on appeal to the Eleventh Circuit.  This case is of particular interest to First Amendment observers, as cases involving questions of whether architecture is protected under the First Amendment are few and far between.

Burns v. Town of Palm Beach, No. 17-CV-81152, 2018 WL 4868710 (S.D. Fla. Jul. 13, 2018).

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 properties in New Orleans, sought information from the city about the permit process and approval criteria for placing murals on his properties.  When he did not receive the requested information, Morris commissioned an artist to paint a mural on one of his properties.  The mural contained the infamous vulgar quote by President Donald Trump on the “Access Hollywood” tape, but replaced certain of the inflammatory words with images.  Morris was subsequently cited with a violation of the city’s historic district regulations.

In response, Morris filed suit against the city, alleging that the permitting scheme violated his First Amendment rights.  Specifically, he claimed that the permit scheme was an unconstitutional prior restraint and that it was a content based regulation.  He also claimed due process and equal protection violations.  The city subsequently amended its regulations, and the court denied the plaintiff’s motion for preliminary injunction as moot.  When the city then moved to dismiss the case, the plaintiff filed a response in opposition to the motion.

The court first found that the plaintiff had standing to challenge the mural ordinance.  Since the city was attempting to interfere with Morris’s placement of murals, the court found that he had standing.  The court moved on to analyze whether the mural ordinance is content neutral or an unconstitutional prior restraint.  The mural ordinance requires murals to be submitted to the city for design review, in which the city considers the mural’s compatibility with surrounding properties and neighborhoods and determines whether the mural furthers public welfare.  Because these analyses require analysis of the mural’s content, the court found that the regulation was content based.  Based on that finding, the court relied upon Thomas v. Chicago Park District to determine that the law was also an unconstitutional prior restraint, because it allowed unbridled administrative discretion in the issuance or denial of mural permits.

The court went on to find that Morris also pled sufficient facts to state an unconstitutional vagueness claim under the Due Process Clause, but dismissed the plaintiff’s “class of one” claim under the Equal Protection Clause.

Morris v. City of New Orleans, No. 18-2624, 2018 WL 5084890 (E.D. La. Oct. 18, 2018).

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 order granting summary judgment in favor of King County, Washington, finding that the county’s bus advertising policy and rejection of a proposed advertisement violated the First Amendment.  The Ninth Circuit had previously affirmed the district court’s order denying a preliminary injunction to the plaintiff, American Freedom Defense Initiative, a nonprofit concerned with the “Islamization of America.”  The advertisements that AFDI desired to run showed the faces of individuals on the nation’s “most wanted” list of jihadists.

For purposes of brevity, the facts and prior disposition of the case can be found in our earlier post.

In its analysis, the Ninth Circuit confirmed that advertising space on King County’s public buses constitutes a nonpublic forum, thus requiring the Seattle bus system’s advertising policy to be reasonable in light of the purposes of the forum, and viewpoint neutral.  The Ninth Circuit clarified that reasonableness is measured by reviewing the forum’s purpose, whether the standards for rejecting an advertisement are definite and objective, and by an independent review of the record.

The court found that the transit operator’s policies prohibiting false or misleading advertising were reasonable.  However, it disagreed that the policy prohibiting demeaning or disparaging advertising was viewpoint neutral.  Citing to the Supreme Court’s 2017 decision in Matal v. Tam, which held a similar prohibition to be viewpoint based, the court found offensive speech is, by its nature, expressive of a particular viewpoint and thus a prohibition on such speech is not viewpoint neutral.  And while the court found that the transit operator’s policy prohibiting advertising that would be disruptive to its transit service was viewpoint neutral and facially reasonable, it found the transit operator’s rejection of AFDI’s advertising to be unreasonable.  Namely, the court pointed to a U.S. State Department advertisement run by the transit operator that showed faces of global terrorists that was nearly identical to the advertisement rejected by the operator.  Because the bus system could not demonstrate harm to its operations from the State Department advertisement, the court found that the rejection of AFDI’s advertising was unreasonable.

Am. Freedom Defense Initiative v. King Cnty., 904 F.3d 1126 (9th Cir. 2018).

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