The City of Boston flies three flags in City Hall Plaza just outside the Boston City Hall: those of the United States, the Commonwealth of Massachusetts, and the City of Boston. From time to time, and at the request of civic groups, organizations, businesses, and others, Boston replaces its flag with another. The Pride Flag
Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny
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…
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Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural
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.…
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COVID-19 and the First Amendment: Thoughts for State and Local Regulators
Since the rest of the world seems to be taking a break from regular activities amid the COVID-19 outbreak, we’ll take a break from our regularly-scheduled programming to offer our view of the pandemic through the lens of our favorite topic: First Amendment rights.
China’s response to the outbreak in Wuhan is well-documented. Mandatory quarantines, citywide shutdowns, prohibitions on gatherings, and other such actions were implemented swiftly. We in the United States have not yet seen such a response, and there’s no telling whether such a response will be needed. But because we enjoy more individual liberties than do Chinese citizens, what might be the legal consequences of some of these actions? We offer some thoughts below for state and local regulators:…
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Supreme Court Rules That Cross Monument Can Remain, Despite Religious Meaning
In a widely-anticipated decision, the U.S. Supreme Court ruled late last month that a large concrete cross located on public property at a major intersection in Bladensburg, Maryland, could remain in place. The nearly 90-year-old cross, which was placed to honor victims of World War I, had been challenged by an atheist organization as a violation of the First Amendment’s prohibition on establishment of religion.
In a fractured decision, seven of the Justices agreed that the cross could stay. Writing for a plurality of the Court, Justice Alito argued that, although the Latin cross has a religious meaning, its longtime placement at a major intersection as a war memorial meant that it had taken on a secular meaning as well. In light of this longstanding history, he concluded that the cross was not a violation of religious liberty. In rendering his opinion, Justice Alito eschewed use of the widely-criticized Lemon test, developed by the Supreme Court in 1971, which looks at the government’s purpose and the effect of a regulation to determine whether an unconstitutional establishment of religion is created. Justices Breyer and Kagan concurred in the opinion, noting that each Establishment Clause case must be reviewed individually and observing that no particular judicial test works in every situation.
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Federal Court Denies Preliminary Injunction in Boston Flag Case
The City of Boston has three flagpoles in the plaza in front of its city hall. Typically, the city displays an American flag and POW/MIA flag on one pole and the flag of Massachusetts on the second pole. The third pole is used for the City of Boston flag, or alternatively, the flag of a third party. The third pole has been used for flags of foreign nations, civic organizations, the LGBT rainbow flag, and others. Parties can submit applications to fly their flag on the third pole, and the city has guidelines that prohibits flags that involve illegal or dangerous activities or conflict with scheduled events. The city reviews applications to determine whether a flag is consistent with the city’s message, policies, and practices, but does not have any guidelines as to the content of the flags. When an applicant was denied the opportunity to place a “Christian flag” on the City Hall on the grounds that the city refrains from flying religious flags on the Plaza, he filed suit.
Late last month, on the plaintiff’s motion for preliminary injunction, a federal district court found for the city. The court determined that the display of flags in front of City Hall constituted government speech. Applying the factors established by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court found that flags are a longstanding form of government speech, the flags in front of City Hall are likely understood to be government speech, and the city has effective control over the flags in front of City Hall. Finding that the flags constitute government speech, that effectively ended the First Amendment inquiry.
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Appeals Court Finds That Concrete Cross Violates Establishment Clause, But Is Reversal In Sight?
Last week, a three-judge panel of the Eleventh Circuit Court of Appeals held that a 75-year old cross displayed in Pensacola, Florida’s Bayview Park was a violation of certain individuals’ constitutional rights under the First Amendment’s Establishment Clause, which prohibits the establishment of religion. But the court’s decision was based entirely on its “prior panel precedent” rule—meaning that the court was bound by a 35-year old decision on nearly identical facts—and the panel openly questioned the correctness of its decision.
Three individuals, represented by the American Civil Liberties Union, brought the case in federal district court in Florida. They alleged that they felt offended by the presence of the cross in the park. Pensacola moved to dismiss on standing grounds, arguing that the plaintiffs’ injuries were sufficient ethereal so as not to pass muster under current-day standing doctrine. The parties also filed cross-motions for summary judgment on the question of whether the cross violated the Establishment Clause.
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Offensive Name Not a Constitutional Reason to Ban Food Truck from Public Lunch Programs, Says Second Circuit
[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…
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Upcoming APA Webinar to Discuss First Amendment Issues
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…
New ABA Book Discusses Local Government and First Amendment Issues
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…