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

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

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

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

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

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.

[The following case centered on an ethnic slur and this post therefore includes two references to that slur.]

Reaffirming the First Amendment’s virtual prohibition on viewpoint discrimination, the Second Circuit recently held that New York state could not prohibit a vendor from participating in public lunch program simply because its name and menu featured ethnic slurs.

The case emerged from a dispute over access to the publicly owned Empire State Plaza in Albany, New York.  After years of contracting with a single vendor to supply food for a daily lunch program hosted in the plaza, New York’s Office of General Services (OGS) chose instead to feature a rotating line-up of food trucks—similar to Civic Center Eats program in Denver’s Civic Center Park—subject to a permitting regime.  Plaintiff Wandering Dago, Inc. (“WD”), which operates a food truck with the same name, applied to OGS for a vending permit.  Though the application proceeded normally at first, when OGS officials realized the term
Continue Reading Offensive Name Not a Constitutional Reason to Ban Food Truck from Public Lunch Programs, Says Second Circuit

Earlier this month, the Sixth Circuit vacated a preliminary injunction preventing Lexington-Fayette Urban County Government (the “City”) from enforcing Ordinance 25/2017 (the “Ordinance”), which would regulate where unsolicited written materials may be delivered. Here is what you need to know about the procedural posture of the case:  The Ordinance would allow delivery of unsolicited written materials in six specific locations around a person’s residence or business but would prohibit driveway delivery.  Plaintiff, Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader, delivers The Community News free of charge to more than 100,000 households per week via driveway delivery.  In their motion for a preliminary injunction, Plaintiff claimed that the Ordinance would make their publication financially unfeasible and that it would violate the First Amendment if allowed to go into effect.  The lower court, after applying strict scrutiny analysis to the Ordinance, granted Plaintiff’s request for a preliminary injunction, finding Plaintiff was likely to succeed on the merits of its First Amendment claim.  The City timely appealed to the Sixth Circuit.
Continue Reading Prohibition on Driveway Delivery of Unsolicited Materials Survives Intermediate Scrutiny of Sixth Circuit