Government Speech

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[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

Webcast— Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More

December 14, 2017

1:00 p.m. – 2:30 p.m. EDT

CM | 1.50 | Law

CLE 1.50 through Illinois State Bar

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More on December 14 from 1:00 p.m. to 2:30 p.m. EDT. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

Planning and zoning in areas involving rights protected under the First Amendment, including the rights to free speech and freedom of religion, can be tricky. This webinar will review several areas in which planners interact with the First Amendment, including in the areas of signs, religious land uses, adult businesses, and even some other interesting areas such as the regulation of gun shops, tattoo parlors, public monuments, and other topics. Presenters will poll the audience at the beginning of the webinar to determine specific topics in which attendees are interested, and will tailor the presentation to attendees’ interests.

Speakers include Daniel Bolin of Ancel Glink, Brian Connolly of Otten Johnson Robinson Neff & Ragonetti, P.C., and Evan Seeman of Robinson & Cole LLP.

Register here

We are pleased to announce the publication of a new book, Local Government, Land Use, and the First Amendment: Protecting Free Speech and Expression.  The book is published by ABA Publishing, and was edited by the editor of Rocky Mountain Sign Law, Brian Connolly.  Twelve authors contributed to the book, which contains chapters on everything from signs, religious land uses, adult businesses, the public forum doctrine, and government speech.

More about the new book is available from ABA:

This book is an re-mastered, retooled version of the ABA publication “Protecting Free Speech and Expression: The First Amendment and Land Use Law” which was published by the ABA.

The book contains some theoretical discussion of First Amendment law as it pertains to land use issues (e.g. sign and billboard regulation, regulation of artwork and aesthetics, regulation of religious land uses, regulation of adult businesses, etc.), but also provides information which will be relevant to practitioners, and will include some regulatory strategies and case studies. In order to strategically illustrate their points, the authors included cases as source material.

The book is available for purchase from ABA and will also be available on Amazon.

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Late last month, the U.S. Supreme Court handed down two opinions addressing separate free speech issues.  While neither decision related specifically to local government regulations, both hold some important lessons for local government practice, as we outline below.

In Packingham v. North Carolina, the Court struck down a North Carolina law making it a felony for registered sex offenders “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  Gerard Packingham, having previously been convicted of “taking indecent liberties with a child,” was cited for violating the law when he posted a statement on his Facebook page about a “positive experience in traffic court.”

At trial, Packingham filed a motion to dismiss on the grounds that the charge violated his First Amendment free speech rights.  The trial court denied Packingham’s motion, and he was subsequently convicted.  Upon appeal, the Court of Appeals of North Carolina struck down the law on First Amendment grounds, explaining that “the law is not narrowly tailored to serve the State’s legitimate interest in protecting minors from sexual abuse.”  The North Carolina Supreme Court reversed, holding the law constitutional “in all respects,” and explaining that the law was carefully tailored to prevent sex offenders from accessing “only those Web sites that allow them the opportunity to gather information about minors.” Continue Reading U.S. Supreme Court Issues Rulings in Two First Amendment Cases

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Last week, the Seventh Circuit Court of Appeals upheld a preliminary injunction preventing an Indiana county from denying a marijuana advocacy organization’s request to demonstrate.  We first reported on this case last December.  As a refresher, the Higher Society of Indiana is a non-profit organization currently lobbying for “full legalization of Cannabis in Indiana.”   In 1999, the Tippecanoe County board declared the courthouse grounds a “closed forum,” and enacted the following policy for those seeking demonstration approval on the grounds:

Only displays and events sponsored and prepared by a department or office of county government will be allowed in the windows of the Tippecanoe County Office Building or on the grounds of the Tippecanoe County Courthouse. Said displays and events shall be scheduled through the Board of Commissioners of the County of Tippecanoe. Continue Reading Seventh Circuit Upholds Preliminary Injunction in “Higher Society” Case

An aerial view of the Grand Haven cross. Source: Grand Haven Tribune.

Late last month, in an unpublished opinion, the Michigan Court of Appeals determined that a monument commemorating those who served and died in the Vietnam War, located on land owned by the City of Grand Haven, was government speech and not subject to First Amendment limitations.  The monument, placed on a sand dune along the Grand River, contains a lifting mechanism that allows the monument to display a cross or, when certain attachments are included on the monument, an anchor.  When members of the community requested that the monument be lifted to display the cross, the city would raise the lifting mechanism.

In 2015, the city passed a resolution allowing the monument to display only the anchor, not the cross.  Members of a local church challenged the resolution as violating the free speech and equal protection provisions of the Michigan Constitution.  The trial court granted summary judgment to the city on the grounds that the monument was government speech. Continue Reading Michigan Court of Appeals: Cross/Anchor Monument is Government Speech

One of the images that FFRF wished to display in the Texas capitol. Source: New York Post.

Late last month, a federal court in Texas denied a motion for summary judgment filed by the State of Texas in a case challenging the state’s policy for allowing privately-sponsored displays in the state capitol building.

The Texas State Preservation Board allows private individuals and groups to display exhibits “for a public purpose” in the public areas of the Texas state capitol building, subject to the board’s approval.  A private group, Freedom From Religion Foundation, which advocates for separation of church and state, wished to display an exhibit in December 2015 depicting life-size figures celebrating the birth of the Bill of Rights, along with Continue Reading Exhibits in Texas State Capitol Do Not Constitute Government Speech, Viewpoint Discrimination Claim Moves Forward

Some of Higher Society’s decor on the Tippecanoe County courthouse. Source: WLFI.

Earlier this week, a federal court in Indiana issued a preliminary injunction in favor of a group of marijuana advocates, Higher Society of Indiana, who wish to hold rallies on the steps of the Tippecanoe County courthouse.  The county government denied the group’s request to hold rallies in that location because the county disagreed with the group’s message.

In 1999, the county issued a policy regarding use of the courthouse grounds by non-governmental groups.  The policy requires a group wishing to hold an event on the courthouse grounds to obtain a sponsorship approval Continue Reading Free Speech and Funny Cigarettes: “Higher Society” Wins Preliminary Injunction to Hold Pro-Marijuana Rally on Indiana Courthouse Steps

The Ten Commandments monument outside of Bloomfield’s city hall. Source: wildhunt.org.

Earlier this month, the Tenth Circuit Court of Appeals ruled that Bloomfield, New Mexico’s installation of a Ten Commandments monument on the lawn in front of city hall violated the Establishment Clause of the First Amendment.

In 2007, upon request of one of its members, the Bloomfield city council approved the placement of the privately-donated monument.  At the time, the city lacked a policy regarding placement of permanent monuments, but it enacted one three months later.  The city’s policy required a statement to be placed on privately-donated stating that the speech was not that of the city but rather of the donor, and also required that such monuments relate to the city’s history and heritage.  After several years of fundraising and another city council approval, the 3,400 pound Ten Commandments monument was placed on the city hall lawn in 2011, and the city held a ceremony—replete with statements by elected officials and religious leaders—to dedicate the monument.  Over the course of the next two years, the city amended the monument policy, and allowed the installation of other monuments on the lawn, including monuments containing the Declaration of Independence, the Gettysburg Address, and the Bill of Rights, but did not advertise its policy of allowing donated monuments.

The federal district court held Continue Reading Installation of Ten Commandments On City Hall Lawn is Government Speech, Violates First Amendment

This post is authored as a joint post of the RLUIPA Defense (www.rluipa-defense.com) and Rocky Mountain Sign Law (www.rockymountainsignlaw.com) blogs.  Evan Seeman of Robinson & Cole and Brian Connolly of Otten Johnson Robinson Neff + Ragonetti contributed to this post.

Late last month, a federal district court in Pennsylvania ruled that directional signs to a church, which contained images of a cross and bible, did not violate the Establishment Clause of the First Amendment.

The borough of Shickshinny, Pennsylvania installed a sign in a borough right-of-way that was designed and produced by a third party and which read “Bible Baptist Church Welcomes You!”  The signs contained images of a cross and bible, and a directional arrow pointing motorists to the church.  The sign was approved by the borough council.  The plaintiff in the case, Francene Tearpock-Martini, is a former borough council member who voted against the sign.  The sign is within sight of her house.

In 2013, the district court granted the borough’s motion to dismiss on statute of limitations grounds.  In 2014, the Third Circuit affirmed the dismissal of the plaintiff’s Equal Protection and Free Speech claims, but reversed on the plaintiff’s Establishment Clause claim.

On summary judgment, the district court held that the sign constituted a “religious display” because it contains religious symbols.  The court analyzed the Establishment Clause claim under what is known as the “endorsement” of religion test, which asks “whether a reasonable observer of the sign who is familiar with the history and context of the display would perceive it as an endorsement of religion.”  The court found that the sign did not constitute an endorsement of religion by the borough because it was merely a sign pointing in the direction of a church and a reasonable observer would perceive it as “a sign to a church and nothing more.”  The court rejected the claim that government employees’ assistance in placing the sign, as well as the fact that the borough may have used its own cement for the sign, was an illegal endorsement of religion.

Out of an “abundance of caution,” the court also reviewed the Establishment Clause claim under a separate test established by the Supreme Court in Lemon v. Kurtzman.  The Lemon test looks to whether: (a) the government practice has a secular purpose; (b) the principal effect of the government’s action either advances or inhibits religion; and (c) the government created an excessive entanglement of government with religion.  Here, the court found that the church sign passed this test as well – there was a secular purpose (providing direction to people); the principal effect did not inhibit but only very slightly advanced religion by providing directions to the church; and the government was not entangled with religion, as it only approved the sign and helped install it.

Interestingly, the decision in Tearpock-Martini did not address the government speech doctrine, which would have been highly appropriate in this case given the factual similarities to the U.S. Supreme Court case of Pleasant Grove City v. Summum.  In that case, the Supreme Court held that a Ten Commandments monument in a public park constituted government speech and was therefore not subject to First Amendment scrutiny.

Tearpock-Martini v. Shickshinny Borough, ___ F. Supp. 3d ___, 2016 WL 3959034 (M.D. Pa. Jul. 22, 2016).