Protests & Demonstrations

Tents along Lake Shore Drive in Chicago. Source: Chicago Tribune.

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.  Continue Reading Homeless “Tent City” Is Not Expressive Conduct Protected by the First Amendment, Says Federal Court

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 for Supreme Court First Amendment law was only moderately satiated.  The U.S. Supreme Court issued its much-awaited ruling in the hot-button First Amendment case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

In the case, a gay couple sought relief when a baker refused to bake them a wedding cake on the grounds that his religious beliefs did not support same-sex marriage.  The Colorado Civil Rights Commission found that Colorado’s anti-discrimination laws, which prohibit discrimination on the basis of sexual orientation, prohibited the baker from denying service to the couple, and the Colorado Court of Appeals affirmed the Civil Rights Commission’s decision.

In a 7-2 decision, the Supreme Court reversed, finding that statements made by members of the Civil Rights Commission evinced hostility toward religion, and that the Commission’s action thus violated the Free Exercise Clause of the First Amendment.  During their deliberations, Commission members had commented on prior use of religion to condone discriminatory action, and made other statements that the Supreme Court interpreted as being hostile toward religion.  Justice Kennedy authored the majority opinion, and Justices Kagan, Gorsuch, and Thomas authored concurrences in the decision.  Justice Ginsburg, joined by Justice Sotomayor, dissented, on the grounds that they did not believe that any statements of the Commission evidenced discrimination.

While the entire Court declined to address the appellant’s free speech claim, the conservative duo of Justices Thomas and Gorsuch wrote separately to address that issue.  Justice Thomas began his concurrence by noting that the Court has previously held anti-discrimination laws unconstitutional as applied when the discriminatory conduct at issue is expressive, citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston and Boy Scouts of America v. Dale.  The two justices, applying a long line of cases that have held various forms of artistic expression to be First Amendment-protected, found that Masterpiece Cakeshop’s baker, Jack Phillips, engages in expressive activity when he creates wedding cakes.  Once they found that Phillips’s cake-making was expressive, Justices Thomas and Gorsuch would have applied strict scrutiny review.  They expressed concern with the fact that Colorado law would apparently command someone engaged in expressive activity to express particular views, whereas prior Supreme Court case law makes clear that offensive speech cannot constitutionally be prohibited.

While the majority opinion in Masterpiece Cakeshop gives us little with respect to the Court’s direction on free speech issues, the concurrence of Justice Thomas at least hints at the direction that two of the justices would lean.  We’ll have to wait for the next major religion-free speech battle to see how this one plays out.

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, ___ S. Ct. ____, 2018 WL 2465172 (U.S. Jun. 4, 2018).

Silvie Pomicter protesting outside Mohegan Sun Arena. Source: The Times Leader.

We previously reported on this case, wherein a group of animal rights activists sought to protest the Barnum and Bailey Circus outside of Mohegan Sun Arena in Wilkes-Barre, Pennsylvania.  In 2016, the district court for the Middle District of Pennsylvania granted a preliminary injunction against the convention center’s protest policy, which required protesters to gather in two areas of approximately 500 to 700 square feet in the arena’s parking lot.  The facts of the case are reported in our earlier blog post. Continue Reading Animal Rights Activists Win Another Round in Circus Case

James Deferio protesting same-sex marriage in Syracuse. Source: Syracuse University Student Voice.

In a case that we reported on in 2016, a federal district court in New York has granted summary judgment to the plaintiff.  The case involves the regulation of protest speech—specifically, a protester’s activities during an LGBTQ rights parade—on public sidewalks.

A brief recap of the facts is merited.  James Deferio is a Christian evangelist who has protested each year at the Central New York Pride Parade and Festival, held in Syracuse.  Each year, the city issued a permit to the organizers of the parade.  That permit indicated that no speakers would be allowed on sidewalks adjacent to the parade.  At the 2014 event, Syracuse police officers threatened Deferio with arrest in reliance on the permit, and he relocated from the site.  In 2015, the city again approved a permit for the parade, giving the parade exclusive control over First Amendment activities and limiting the use of sound amplification devices near the parade route.  The 2015 permit also allowed for a zone where protest activities could occur.  Deferio again attended the parade to protest.  After minor verbal altercations ensued, a Syracuse police officer told Deferio that he could be arrested for his activities, and he relocated to the zone designated for protest activity. Continue Reading Summary Judgment Granted to Christian Evangelist in Syracuse Pride Parade Case

Last week, the Tenth Circuit vacated a preliminary injunction preventing Denver International Airport from enforcing much of its public protest policy.  We reported on that injunction after it issued and now return to discuss its reversal on appeal.  In short, the unanimous appellate panel concluded that the airport could reasonably require a seven-day permitting period for protests, even if that requirement quashed most spontaneous demonstrations.

Denver International Airport’s Jeppesen Terminal

A bit of background, though, before we get any further: after the Trump administration unveiled its so-called “Muslim Ban”  (more formally, but less memorably, titled Executive Order 13769) suspending nationals from several predominantly Muslim countries from entering the United States, spontaneous protests broke out in airports nationwide.  Plaintiffs in this case joined in those protests at DIA, where Continue Reading Tenth Circuit: No Constitutional Need for Speedier Protest Permitting at Denver International Airport

Seabrook Nuclear Power Plant. Source: Northeastern University.

A local nuclear power activist, who expresses concern about the possibility of a nuclear meltdown at a Massachusetts nuclear power, watched his First Amendment claims against the Town of Rowley “melt down” late month.  A federal district court in Massachusetts entered judgment on the pleadings in favor of the town, finding it did not engage in viewpoint discrimination, retaliation, or selective enforcement.

Stephen Comley, a town resident, posted signs in public right-of-ways throughout the town pertaining to his concerns about safety at the Seabrook Power Plant.  In 2015, Comley appeared before the town’s governing body to demand that the town take action against the power plant.  Following Comley’s appearance before the town board, he noticed that his signs began disappearing from the public right-of-ways, which reportedly hosted several other signs relating to elections and other subjects.  He then brought First Amendment claims for viewpoint discrimination, retaliation, and selective enforcement. Continue Reading Massachusetts Town Prevails in Nuclear Power Protest Case

Protesters near Planned Parenthood in Pittsburgh. Source: CBS Pittsburgh.

Last week, a federal district court granted summary judgment to the City of Pittsburgh, Pennsylvania in a long-running dispute over a buffer zone law applicable to protest activities outside of reproductive health facilities such as Planned Parenthood.  The court held that the city’s 15-foot buffer zone law was content neutral and narrowly tailored to a substantial governmental interest, and thus valid under the First Amendment.

Pittsburgh enacted its buffer zone law in 2005.  The initial buffer zone law initially imposed a 15-foot buffer zone around the entrance to a hospital or health care facility in which no person was permitted to congregate, patrol, picket, or demonstrate.  The buffer zone excepted public safety officers, emergency workers, employees or agents of the facility, and patients.  The law also imposed an eight-foot “personal” buffer zone around individuals.  In the eight-foot buffer zone, no person could approach an individual to provide a leaflet or to protest, where the individual was within 100 feet of a hospital or health care facility entrance.  The eight-foot personal buffer zone was struck down in the case of Brown v. City of Pittsburgh in 2009.  The 15-foot buffer zone remained in effect, but was challenged again in 2014 following the Supreme Court’s decision in McCullen v. Coakley, in which the Court struck down a Massachusetts law imposing a 35-foot buffer zone around health care clinics.  The plaintiffs in the case are religiously-motivated protesters who engage in protest activities around a Planned Parenthood facility in Pittsburgh.  In 2016, as we reported, the Third Circuit reversed the district court’s dismissal of the case. Continue Reading District Court Finds in Favor of Pittsburgh Buffer Zone Law

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

Nashville Pride Festival. Source: Nashville Pride.

Late last month, a federal district court in Tennessee granted summary judgment to the Nashville metropolitan government in a case involving the rights of protesters at the 2015 Nashville Pride Festival, which is a celebration of LGBTQ rights and culture.

Nashville Pride Festival is held in the City’s Public Square Park.  In order to hold the festival in the park, Nashville required the organization Nashville Pride to obtain a permit.  The event was ticketed, such that only those with tickets could enter into the park.  The plaintiffs in the case, John McGlone and Jeremy Peters, believe that homosexuality is a sin.  They attended the festival in protest, but stayed outside the ticketed area.  A festival employee asked them to leave the area outside of the gate, as it was subject to Nashville Pride’s permit.  Eventually, the protesters were removed to a location on the other side of the street from the park.  This location was unsatisfactory to the plaintiffs, because they believed that their message would reach less people. Continue Reading Court Upholds Relocation of Protesters at Nashville Pride Festival

Signs on the pedestrian overpass in Campbell, Wisconsin. Source: Milwaukee Journal.

Late last week, in a case that involved made-for-TV shenanigans by a local police officer, the Seventh Circuit Court of Appeals ruled that a town’s total ban on signs, flags, and banners within 100 feet of an interstate highway could survive with respect to overhead signs, but remanded the case for additional proceedings with respect to other parts of the ban.

Campbell, Wisconsin bans all signs, flags, and banners along interstate highways.  The town enacted its regulation after members of the community hung political protest banners containing messages commonly identified with the Tea Party on a pedestrian overpass over Interstate 90.

Following the enactment of the regulation, the local police began issuing citations to individuals displaying signs along the highway.  Some of the individual sign-posters took videos of the police issuing citations—including in response to the protesters’ display of American flags and other patriotic signs along the interstate highway.  Concerned about the videos, in an apparent attempt at vigilante justice, the local police chief posted the name and email address of one of the Tea Party sign-posters on same-sex dating and pornographic websites.  The police chief also took to local newspapers to accuse the man of failing to pay his taxes.  Continue Reading Amid Interstate Overpass Soap Opera, Seventh Circuit Says No Empirical Evidence Required to Support Sign Regulation