Protests & Demonstrations

A nudist political protest in San Francisco. Source: Change.org.

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.

Is a birthday suit like burning a draft card?  Last week, the Ninth Circuit Court of Appeals took on a First Amendment challenge to San Francisco’s public nudity ordinance, which prohibits an individual from exposing “his or her genitals, perineum, or anal region on any public street, sidewalk, street median, parklet, plaza, or public right-of-way . . . or in any transit vehicle, station, platform, or stop of any government operated transit system in the City and County of San Francisco.”  “Body freedom advocates” Oxane “Gypsy” Taub and George Davis brought an action challenging the City’s enforcement of the ordinance, alleging that it unconstitutionally prohibited expressive nudity at a political rally. The case came before the Ninth Circuit following dismissal by the United States District Court for the Northern District of California.
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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.

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.
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A Spokane Transit Authority bus. Source: Spokane Public Radio.

The union representing Spokane Transit Authority employees will have an opportunity to continue its challenge to the STA’s bus advertising policy, now that a federal court has denied the transit authority’s motion to dismiss.

Like many transit agencies, the STA has an advertising policy.  Until November 2016, the STA delegated administration and enforcement of the policy to an advertising contractor called ooh Media LLC.  The policy allows “Commercial and Promotional Advertising” and “Public Service Announcements.”  Commercial and promotional advertising includes general commercial advertisements for products, services, events, and the like.  Public service announcements are required to meet three criteria: the sponsor must be a governmental or 501(c)(3) nonprofit entity, the announcement must relate to one of five topics (including public health, safety or personal well-being, family or child social services, broad-based contribution campaigns, or services for low-income people or persons with disabilities), and the announcement may not include a commercial message.  The policy also prohibits deceptive advertising, political speech, or ideological or religious messages.
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A 20-foot buffer zone at a Planned Parenthood facility in Harrisburg. Source: PennLive.com.

Last week, in a case that we reported on last summer involving protests near abortion clinics in Harrisburg, Pennsylvania, the Third Circuit Court of Appeals remanded the plaintiffs’ request for a preliminary injunction back to the district court, finding that the lower court misapplied the narrow tailoring analysis.

The facts of the case, which challenges Harrisburg’s protest-free buffer zone requirement around abortion clinics, can be found on our post from last fall.  The buffer zone in question is a 20-foot zone extending from the entrance to a reproductive health care clinic in which congregating, patrolling, picketing, and demonstrating are unlawful.  Following the district court’s denial of a preliminary injunction, the plaintiffs appealed that ruling to the Third Circuit. 
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This weekend (May 6th-9th, 2017) brings us to the American Planning American’s National Conference in New York City.  Along with colleagues from around the country, we’ll be talking about everything land use and the First Amendment, from signs to adult businesses, religious land uses, and the public forum doctrine.  If you’re planning to be at

The Great Hall of the Jeppesen Terminal at Denver International Airport. Source: Denver Post.

Last week, a federal district judge in Colorado partially granted a motion for preliminary injunction filed by two individuals who sought to protest President Trump’s executive order banning immigration from seven predominantly Muslim countries.  The court found that the plaintiffs were likely to succeed on the merits of their claim, which was filed in connection with demonstrations held at Denver International Airport immediately following the order.

Denver regulates First Amendment activities at its airport via a municipal regulation that requires demonstrators to first obtain a permit, which must be applied for no more than 30 and no less than seven days before the proposed activity.  In addition, any signs carried by protestors may not exceed one square foot, and picketing by more than two persons on items unrelated to a labor dispute is generally prohibited throughout the airport.  The chief executive officer of the airport has the discretion under the regulation to determine where protest activity may occur.
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Wagner’s sign in Garfield Heights. Source: Cleveland Plain Dealer.

Earlier this month, the Sixth Circuit Court of Appeals upheld an Ohio district court’s decision to permanently enjoin the enforcement of the City of Garfield Heights’s sign code.  The court found that the sign code’s restriction of “political signs” to six square feet was content based and unconstitutional.

The case began in September 2011, when local resident Frank Wagner wanted to protest a local councilwoman’s support of traffic cameras and a waste disposal tax.  Wagner placed a sixteen-square foot sign in his front yard that called out the councilwoman. 
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Earlier this month, the First Circuit Court of Appeals held that a group of abortion protesters did not have standing to challenge a New Hampshire buffer zone law.  The First Circuit’s decision affirmed a decision by the federal district court, which we reported on last summer.

The law in question prohibited protesters from entering

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
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