In a case that has been percolating for more than five years and which we reported on last year, the Ninth Circuit Court of Appeals reversed a district court
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.…
Continue Reading Federal Court Denies Preliminary Injunction in Boston Flag Case
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.…
Continue Reading Appeals Court Finds That Concrete Cross Violates Establishment Clause, But Is Reversal In Sight?
Last month, a federal district court in Tennessee denied a motion for preliminary injunction filed by a man who wished to picket a Planned Parenthood location in a business park in Memphis. The court determined that the private street on which the plaintiff, John Brindley, intended to picket was not a public roadway and therefore was not a traditional public forum requiring content neutral speech regulations.
Planned Parenthood’s offices are located on Virginia Run Cove, a two-lane street that serves multiple businesses located within the park. The park is zoned as a planned unit development, and the street serves the businesses located within the park. Brindley sought to protest Planned Parenthood on Virginia Run Cove, but was asked to move by a police officer on the premise that Virginia Run Cove is a private street. Brindley subsequently moved to a nearby public street, but was dissatisfied that his protest location was nearly 300 feet from his target audience, Planned Parenthood. Brindley subsequently filed his complaint in federal district court.
In conducting a forum analysis to determine whether Virginia Run Cove was a public forum for First Amendment purposes, the court noted that some public fora are privately-owned. These areas include public sidewalks that run across private property, sidewalks on private university campuses, and even the streets of corporate-owned communities. However, the court observed, private areas are not converted into public fora where the owner of the property allows a more limited use of the property.…
Continue Reading In Tennessee Planned Parenthood Case, Court Finds Private Street is Not a Public Forum
Over the past couple of years, we’ve reported on a case involving pamphleteering activities on the plaza that lies outside of the Lindsey-Flanigan Courthouse here in our home city of Denver, Colorado. Things have gotten interesting again, as the Tenth Circuit last month reversed a decision of the federal district court finding the City and County of Denver in contempt following its decision to arrest an individual for distributing literature on the plaza.
We’ll first bring our readers back up to speed. This case involved the question of whether a group could lawfully distribute literature about jury nullification on the plaza. The Second Judicial District, a state court, prohibited demonstrations and literature distribution on the plaza. The plaza area is owned by Denver, and the state court is a tenant on the property. Denver Police arrested a member of the pamphleteering group, which resulted in a First Amendment claim against the city and the state court. Denver stipulated that the plaza was a public forum, and further stipulated that it would not enforce the prohibitions on literature distribution, but the Second Judicial District disagreed with Denver’s position. The federal court then entered a preliminary injunction against the Second Judicial District, and dismissed Denver from the case. A prior Tenth Circuit order upheld the preliminary injunction. On a motion for permanent injunction, the court agreed with the Second Judicial District and found that the plaza was not a traditional public forum.…
Continue Reading In Another Chapter of Denver Courthouse Plaza Battle, Tenth Circuit Reverses Contempt Order
In a decision last month, an atheist group lost its challenge to an advertising policy promulgated by the transit system for Lackawanna County, Pennsylvania, COLTS, that prohibited, among other things, religious messages. Following a trial, a federal district court found in favor of the transit agency, on the grounds that its advertising space was a limited public forum and the policy was viewpoint neutral. The decision follows several recent decisions that have found transit advertising policies constitutional.
Beginning in 2012, the atheist group, the Freethought Society of Northeastern Pennsylvania, sought to place advertising on buses owned by COLTS. The Society’s initial advertising attempt was blocked by COLTS on the ground that its advertisement was controversial, in violation of the agency’s advertising policy. The transit agency rejected similar advertisements submitted in 2013 and 2014 as well, even after COLTS changed its advertising policy to more explicitly prohibit political or religious messages.…
Continue Reading In Another Transit Advertising Case, Federal District Court Upholds “No Religion” Policy
Last December, we reported on a federal district court’s denial of a motion for preliminary injunction relating to the Archdiocese of Washington’s unsuccessful efforts to post Christmas-season advertising on transit vehicles owned and operated by the Washington Metropolitan Area Transit Authority. Unfortunately for the Archdiocese, Christmas did not come in July either. Last week, the federal Court of Appeals for the D.C. Circuit affirmed the denial of preliminary injunctive relief.
The facts of the case are available on our post regarding the district court’s decision.
On appeal, the appellate court (which included as a panelist Supreme Court nominee Judge Kavanaugh) agreed with the district court. First, the court agreed that the advertising space on WMATA transit vehicles constitutes a non-public forum, where the government can exercise greater control over content yet must adhere to requirements of viewpoint neutrality and reasonableness. In so ruling, the D.C. Circuit joins a majority of federal appeals courts that have now ruled that transit advertising spaces are non-public fora.…
Continue Reading No Christmas in July for Archdiocese of Washington; Appeals Court Affirms Denial of Preliminary Injunction
Tea Partiers in the Land of 10,000 Lakes, as well as those hipsters who like to wear vintage political t-shirts (think “Nixon’s the One!” or “LBJ All the Way!”) on election day scored a big victory at the Supreme Court last week. In a 7-2 decision, the Court held that a Minnesota law prohibiting individuals from wearing or displaying certain types of political attire was unconstitutional under the First Amendment. The Minnesota law in question also prohibited displays of campaign materials within 100 feet of a polling place and the distribution of political materials to be worn at a polling place.
The law was challenged by a Tea Party group, and was upheld by lower courts.
Applying the public forum doctrine, the Supreme Court found in Minnesota Voters Alliance v. Mansky that the interior of a polling place constitutes a nonpublic forum. In a nonpublic forum, speech regulations must be viewpoint neutral and reasonable in light of the purposes of the forum. While the Court observed that Minnesota could constitutionally prohibit political attire, buttons, and other paraphernalia from the interior of a polling place, it found that the law in question failed the reasonableness standard. The Court noted, for example, that the statute failed to define the term “political,” such that voters and those enforcing the law had no standards by which to determine what attire would pass muster. While local polling places had been issued some guidance on the issue, the Court found that the guidance similarly lacked clarity regarding what constituted political speech. The Court observed that other states, including California and Texas, had much clearer laws that narrowed the class of prohibited speech to that which advocates for or against a candidate or ballot measure appearing on the ballot.…
Continue Reading Supreme Court to Minnesotans: Wear Your Political Buttons, Badges, and T-Shirts to the Polls
This post was authored by Otten Johnson summer associate Chelsea Marx. Chelsea is a rising third-year law student at the University of Denver Sturm College of Law.
Just in time for summer, the federal district court in Maryland has determined that the show must go on for a group of performance artists challenging an ordinance restricting public performance on the Ocean City boardwalk. In Christ v. Ocean City, which we first reported on last year, a federal district judge concluded that Chapter 62, a new ordinance limiting performance to designated spaces at designated times, was mostly unconstitutional.
The Ocean City Boardwalk Task Force hoped Chapter 62 would survive scrutiny after a lengthy history of successful First Amendment challenges to prior regulations of speech on the boardwalk. The Mayor and City Council charged the five-member Boardwalk Task Force to draft a new ordinance addressing the “issues that had plagued the Boardwalk” with respect to public safety, traffic congestion, and managing competing uses for limited space. A cast of eleven street performers, including a puppeteer, stick balloon artist, magician, mime, portrait sketch artist, and musician, filed suit asserting that Chapter 62 violated the First Amendment.
Further background and details of the ordinance are detailed in our earlier post.…
Continue Reading A Mime, A Stick Balloon Artist, A Puppeteer, and Others Win in Ocean City Boardwalk Regulation Case
Green chile is undoubtedly a popular product at the New Mexico State Fair. But can another “green” product—medicinal marijuana—be displayed at the state fair? That question now rests with a federal district court.
New Mexico allows vendors of food, medical, and other products to display their products in booths at the annual state fair. New Mexico Top Organics—Ultra Health, Inc., a medical cannabis company, sought to display its medical cannabis products at the fair, but New Mexico has a policy disallowing the display of drugs or drug paraphernalia at the fair. In 2016 and 2017, the state prohibited Ultra Health from displaying its products, or images of its products, at the fair. Ultra Health determined that, without images or examples of its products, it could not meaningfully participate in the fair, and it subsequently brought suit against several state fair officials, alleging violations of its free speech rights under the First Amendment.…
Continue Reading Land of Enchantment? Court Says Display of Marijuana is First Amendment-Protected, But Time Will Tell Whether State Fair Can Prohibit It