Our friend and colleague, Professor Daniel R. Mandelker of Washington University in St. Louis, has published a new article, titled Billboards, Signs, Free Speech, and the First Amendment. The article is featured in the Real Property, Trust, and Estate Law Journal. The article traces the history of billboard regulation and the eventual application
Recent litigation against the city of Fort Worth has once again confirmed that localities should steer clear of content-based sign codes and free-wheeling approval processes. Dallas’s neighbor learned that lesson after a federal district court struck down portions of its regulations, concluding they were both content-based and a prior restraint, and also unable to survive strict scrutiny.
The case arose from plaintiff Brookes Baker’s efforts to place crosses in the city right-of-way alongside an abortion clinic.
Continue Reading Federal District Court Strikes Down Fort Worth’s Prohibition and Exemption Scheme for Materials in the Right-of-Way
In a case of first impression within the Sixth Circuit, a district court held that a city’s interest in protecting the exercise of a permit holder’s First Amendment rights is—at least in some circumstances—a significant interest supporting the content-neutral regulation of speech.
In 2018, Johnson City, Tennessee granted a Special Events Permit to LGBTQ organization TriPride to hold a parade and festival in a city park. At the festival, city officers enforcing the Special Events Policy moved religious protesters from blocking the park’s entrance. The protesters filed suit, claiming that this allegedly arbitrary enforcement violated their rights to free speech and free exercise of religion.Continue Reading District Court Upholds Tennessee City’s Enforcement of Policy Against Special Event Interference
Earlier this month, the court held that the City of Norman, Oklahoma may enforce a disturbing-the-peace ordinance against anti-abortion protesters while their litigation claiming it violates the First Amendment is pending. The ordinance prohibits “disturb[ing] the peace of another . . . by [p]laying or creating loud or unusual sounds.” City police had cited and threatened to cite the protesters for violation when their amplified speech on sidewalks outside an abortion clinic could be heard inside the clinic. The protesters claimed that the ordinance violates their rights to free speech and free exercise of religion, facially and as applied, but the district court denied their request for a preliminary injunction.
Continue Reading Tenth Circuit Upholds Denial of Preliminary Injunction Against Enforcement of Disturbing-the-Peace Ordinance
As a company that sells advertising space on benches in public areas, Bench Billboard Company has a long and storied litigation history against municipalities in Ohio and Kentucky. In this most recent iteration, the BBC challenged the constitutionality of Colerain Township’s (a Cincinnati suburb) restriction on signage in its right of way after the Township…
Simi Valley, California, like many cities, bans mobile advertising displays on public streets. It also, however, exempts certain authorized vehicles from the general ban. The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.
Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation. Following that conclusion, it returned the case to the district court for further proceedings to determine whether
Continue Reading Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny
In a midnight per curiam opinion that generated several concurring and dissenting opinions, the Supreme Court recently enjoined the state of New York from enforcing certain COVID-19 restrictions against religious institutions. Although the injunction is limited to the pendency of the underlying appeal in the Second Circuit, it represents the Court’s most thorough treatment of pandemic-related restrictions on religious exercise to date. It also marks an about-face from Chief Justice Roberts’ solo concurrence to the Court’s denial of a similar application for injunctive relief earlier this year. In May, the Chief Justice deferred to the coordinate branches in dealing with the pandemic. Now, however, the full Court has grown more skeptical of pandemic restrictions affecting religious exercise, and lower courts will probably follow suit.
The facts are as follows: New York has adopted a tiered system of pandemic restrictions. The state applies those restrictions to a number of geographic districts based on the severity of the pandemic in those districts. Restrictions for a “red zone” are more severe than those for a “yellow zone” and so on. New York’s regulations also distinguish between “essential” and non-essential business, and further identify religious institutions among the various uses regulated. Religious institutions are not an “essential” use, though they receive preferential treatment relative to other large, indoor gatherings. In “red zones” no more than ten people may attend each religious service. In “orange zones,” the regulations cap attendance at twenty-five, irrespective of building capacity. “Essential” businesses, which include acupuncture clinics and liquor stores, face no such capacity restrictions.
The per curiam opinion (which legal writing analysts believe was authored by
Continue Reading Supreme Court Sides with Religious Institutions Against New York Restrictions on Worship Services
Earlier this year, the federal Court of Appeals for the Eleventh Circuit upheld a district court’s denial of a preliminary injunction requested by a street preacher who alleged that a county government had infringed upon his First Amendment rights.
Adam LaCroix is a street preacher who discusses “Biblical principles of sexual morality” outside public venues …
A billboard company’s challenge to the Troy, Michigan sign variance standards–which we reported on three years ago–has now resulted in an appellate decision that has the potential to greatly change commercial speech regulation as we know it. Two weeks ago, the Sixth Circuit Court of Appeals ruled that the city’s sign code was an unconstitutional prior restraint and was content-based in its regulation of temporary signs. The most remarkable aspect of the decision, however, was the court’s conclusion that any content-based commercial sign regulation should now be subjected to strict scrutiny analysis, which is nearly always fatal to a sign regulation.
The Troy sign ordinance allows property owners to post one ground sign of up to 12 feet in height and not exceeding 100 square feet, plus one additional ground sign, so long as the second sign is set back 200 feet from a right-of-way, is no more than 25 feet tall, does not exceed 300 square feet in area, and is not less than 1,000 feet from any other sign exceeding 100 square feet. International Outdoor sought to install 672-square-foot, double-sided advertising signs in Troy that did not meet the foregoing requirements and sought a variance. The criteria used by the city’s appeals board were threefold: “(1) the variance would not be contrary to the public interest or general purpose and intent of this Chapter; and (2) the variance does not adversely affect properties in the immediate vicinity of the proposed sign; and (3) the petitioner has a hardship or practical difficulty resulting from the unusual characteristics of the property that precludes reasonable use of the property.” The board denied the variance for failure to meet the criteria.
Continue Reading In Billboard Company’s Challenge to a Michigan Sign Ordinance, the Sixth Circuit Finds That Content-Based Commercial Speech Regulations Are Now Subject to Strict Scrutiny
Late last month, a federal district court in Washington, D.C. dismissed First Amendment and other constitutional claims filed against the District by a non-Black Christian group pertaining to the now-famous “Black Lives Matter” mural painted on 16th Street.
Following widespread protests in U.S. cities in response to the death of George Floyd, a Black man, at the hands of white police officers in Minneapolis—and shortly after federal law enforcement officials cleared protesters in Lafayette Park with tear gas to allow for a photo opportunity for President Trump—D.C. Mayor Muriel Bowser directed the D.C. Department of Public Works to paint the words “Black Lives Matter” in large yellow letters on 16th Street. The mural, which is in close proximity to the White House, was widely acknowledged as expressing support for protesters and the Black community and in protest of actions taken by the President.
Continue Reading Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural