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
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.…
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.…
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.…
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.…
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.…
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. …
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…
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.
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…