Government Speech

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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…

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Virginia exercises “editorial control” over the brochures placed in kiosks located in its welcome centers, like this one in the Town of Skippers, limiting content to advertisements and other speech relevant to highway safety and the traveling public.

In a recent case involving the State of Virginia’s authority to regulate the placement of informational brochures in its welcome centers and rest areas, an advertiser brought suit.
Continue Reading “Chilling Effect” Must Be Reasonable to Show Standing, plus an Expansion of the Government Speech Doctrine