A housing encampment along Ben Franklin Parkway in Philadelphia. Source: Philly Voice.

Late last month, a district court in Pennsylvania entered an order denying preliminary injunctive relief in a First Amendment case filed by a group of homeless advocates seeking to raise awareness of homelessness in Philadelphia.

The case involves three homeless encampments at locations on city- and state-owned properties near Philadelphia’s Center City.  The encampments started in the summer of 2020, and over 200 people reside in them.  The plaintiffs in the case alleged that the encampments are protests relating to city policies toward the homeless.  In July, the city provided notice that it would sweep and remove the encampments on or before August 18.  On August 17, the plaintiffs filed their claim in federal district court and moved for a temporary restraining order and preliminary injunction.
Continue Reading District Court Denies Preliminary Injunction in Philadelphia Homeless Encampment Case

Panhandlers on a street median in Oklahoma City. Source: KGOU.

Last week, the federal Court of Appeals for the Tenth Circuit ruled that an Oklahoma City law prohibiting people from remaining on street medians violated the First Amendment.  The law was challenged by a diverse group, including panhandlers, minority political parties, and even joggers.

In 2015, apparently in response to concerns regarding panhandling, Oklahoma City passed a law that prohibited individuals from sitting, standing, or remaining in street medians throughout the city.  Although the law was motivated by concerns regarding panhandlers, the city sought to justify the law with the presentation of safety statistics regarding pedestrians in street medians.  A group of plaintiffs sued the city, and it revised the ordinance in 2017 to limit the law’s coverage to medians along streets with speed limits of 40 miles per hour or greater.  Again, the city justified its amended law with safety information.
Continue Reading Tenth Circuit Strikes Down Oklahoma City Median Restrictions

Earlier this month, the Fifth Circuit Court of Appeals vacated a lower court’s summary judgment order in order favor of a non-theist group that sought to place a nonreligious display in the rotunda of the Texas state capitol during the holiday season.  The lower court found that the state, in denying the group’s display, had engaged in viewpoint discrimination.  However, the court found that the order granting retrospective relief was improper, but directed the lower to court to consider the group’s claim for prospective relief and reinstated its claim that the state’s regulations constituted an impermissible prior restraint.

We reported on this case in 2017.  The facts of the case can be found on our earlier post.  Since our last report on the case, the district court entered a declaratory summary judgment in favor of Freedom From Religion Foundation, finding that Texas Governor Greg Abbott’s and Texas State Preservation Board Executive Director Rod Welsh’s interference in the matter constituted viewpoint discrimination.  However, the district court denied summary judgment on the group’s Establishment Clause claim and a claim against Abbott in his individual capacity.
Continue Reading Fifth Circuit Remands in Texas Capitol Rotunda Display Case

Last week, the Tenth Circuit Court of Appeals issued an order denying a motion by the plaintiff in the case of Evans v. Sandy City for an en banc rehearing.  In ruling on the motion, the court issued a revised opinion.  In the revised opinion, the court reaffirmed that Sandy City, Utah’s prohibition on sitting

In a case that we reported on previously, the Third Circuit Court of Appeals has entered a ruling in favor of a group of animal rights activists that wished to protest the Barnum and Bailey Circus in a government-owned convention center and arena in Wilkes-Barre, Pennsylvania.

The facts of the case can be found in our earlier posts.  At issue on appeal were questions of whether the government could limit the area allowed for protests at the arena, whether the protesters could be prohibited from using profane language, and whether the convention center could prohibit the use of sound amplification.
Continue Reading Appeals Court Affirms District Court Ruling in Favor of Pennsylvania Animal Rights Activists

The plaintiff in the case against Sandy City, Utah, who sought to overturn the city’s median restriction.

Earlier this summer, the Tenth Circuit Court of Appeals held that Sandy City, Utah’s restriction on sitting or standing in a street median of less than 36 inches in width met constitutional muster.  Although the regulation was principally aimed at addressing panhandling activity, the court found the regulation to be content neutral, affirming an earlier district court ruling in the case.  The court’s decision appears to offer an avenue for local governments to address safety concerns associated with panhandling, without treading on constitutionally unstable ground.

The Supreme Court’s 2015 decision in Reed v. Town of Gilbert resulted in the invalidation of many restrictions on panhandling in municipalities around the United States.  To get around the legal defects associated with panhandling prohibitions, municipalities—like Sandy City—have adopted general restrictions on sitting, standing, and remaining in street medians to achieve the same ends.
Continue Reading Utah City’s Median Restriction Found Content Neutral, Constitutional

The Planned Parenthood location on Virginia Cove in Memphis. Source: The Business Journals.

In a case we reported on last year, the Sixth Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction in a case involving protests outside of a Planned Parenthood location in a Memphis, Tennessee business.  The case previously turned on the fact that the street in front of the clinic was a private street.  The district court had determined that, because the street was private, it could not be a public forum in which anti-abortion protests could take place.

The Sixth Circuit’s decision, issued yesterday, turned on the fact that the private street in question was “physically indistinguishable” from adjacent public streets.  The court reasoned that, because the private street was paved and had no signage indicating that it was privately-owned, a reasonable member of the public would likely consider the street public.  Thus, the court classified the street as a traditional public forum.  The court was also swayed by the fact that there appeared to be a dedication of the street on the subdivision plat for the business park in question, and that the public had impliedly accepted the street as a public street through public use of the street.  The court went on to apply strict scrutiny (although it did not conduct any analysis as to whether the restrictions on the street’s use were content based), and reversed the district court’s order.
Continue Reading Sixth Circuit Reverses Denial of Preliminary Injunction in Memphis Planned Parenthood Case

The Bladensburg cross. Source: The Humanist.

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.
Continue Reading Supreme Court Rules That Cross Monument Can Remain, Despite Religious Meaning

The rats and cats are back.  We first reported on this case in 2016, after the Seventh Circuit determined that it might be moot.  As it turns out, the case was not moot, and “Scabby the Rat” returned to the appeals court again.  In a ruling last month, the Seventh Circuit found that the district court properly determined that the town’s ordinance prohibiting the inflatable rat was not content based and accorded with the First Amendment.

The facts of the case can be found in our earlier post.  After the Seventh Circuit suggested that the case might be moot due to an agreement between the union and employer, the case went back to the district court.  The district court subsequently found the case not to be moot, as the union was seeking damages for its inability to place the rat in the right-of-way.  In its ruling, the district court then found that the ordinance in question—which prohibited the placement of private signs in town right-of-ways—was content neutral and survived First Amendment scrutiny.
Continue Reading Seventh Circuit Upholds Wisconsin Ordinance Prohibiting Inflatable “Scabby the Rat”