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Does the First Amendment require a public transit system to run an ad alerting riders to the “Faces of Global Terrorism”?  No, concluded a federal district court last month.  The case, which remains on appeal, comprises the latest salvo in a years-long battle between the American Freedom Defense Initiative (AFDI), a nonprofit specializing in creating and litigating advertisements decrying the “Islamization of America,” and King County Metro Transit (Metro), the Seattle area’s mass transportation system.

After AFDI submitted what Metro rejected as a false and misleading advertisement, and the Ninth Circuit refused to overturn a district court order denying AFDI’s request for a preliminary injunction, AFDI returned with a new version of its ad.  That latest iteration…
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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.…
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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…

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.…
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Klyde Warren Park in Dallas. Source: klydewarrenpark.org

Last month, the Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment.  The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others.  To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles.  The riddles are intended to attract people to stop by and ask him about them.  The park rules prohibit structures larger than four feet by four feet without a permit.  Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park.  In 2015, he received a criminal trespass warning.  After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds.…
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In July, a federal court in Wisconsin granted a preliminary injunction to Candy Lab, the maker of the popular “Pokemon Go” game, after Milwaukee County required the company to obtain a permit in order for players of its games to play in the county’s parks.

In 2016, Candy Lab released Pokemon Go, which allows players to use smartphones with location-sensing technology and “augmented reality”—whereby the phone displays an image suggesting that the image is physically present in front of the user—to play the game in a particular geolocation.  The runaway success of the game meant that many public parks became popular with players, including Milwaukee County’s Lake Park.  In summer 2016, the county observed large numbers of people playing the game in the park, and reported increases in litter, trampling of grass and flowers, players staying past the park’s closing hours. The park additionally had inadequate bathrooms, unauthorized vending, parking problems, and traffic congestion as a result of the game.  The county responded with an ordinance prohibiting virtual- and augmented-reality games in the county’s parks, except with a permit.  In 2017, Candy Lab released another augmented-reality game, Texas Rope ‘Em, but refused to obtain a permit from the county.  Candy Lab then sued the county, claiming a violation of its free speech rights.…
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The plaza in front of Pinnacle Bank Arena. Source: University of Nebraska.

Last week, a federal appeals court upheld an order granting summary judgment to the City of Lincoln, Nebraska in a case involving a prohibition on leafleting activity outside of the city’s basketball arena.  In the decision, the court determined that the plaza outside of the arena was a nonpublic forum, and that the city’s regulation met the basic requirement of reasonableness for regulations of speech in a nonpublic forum.

In 2010, Lincoln and the University of Nebraska created a joint agency to redevelop a portion of the city and to construct a new athletic arena for the university’s sports teams.  In connection with the redevelopment, new pedestrian areas were constructed, including a plaza immediately outside of the arena.  The city entered into a private management agreement allowing a concessionaire to manage and operate the arena and surrounding property.  After the arena opened in 2013, the concessionaire, SMG, adopted a policy establishing the plaza outside of the arena as a nonpublic forum, and specifically reserved use of the plaza for tenants of the arena.  Other pedestrian areas outside of the plaza were designated for public uses.…
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We are pleased to announce the publication of a new book, Local Government, Land Use, and the First Amendment: Protecting Free Speech and Expression.  The book is published by ABA Publishing, and was edited by the editor of Rocky Mountain Sign Law, Brian Connolly.  Twelve authors contributed to the book, which contains chapters…

Twin Oaks Park, the site of the photography dispute. Source: STLtoday.com

Last year, we reported on a case in Twin Oaks, Missouri, where a local wedding photographer, Josephine Havlak, challenged a town ordinance limiting commercial activity in a public park.  Late last month, the Eighth Circuit Court of Appeals affirmed the district court’s denial of the photographer’s motion for preliminary injunction, finding the ordinance content neutral and constitutional as applied to the photographer.

The facts of the case can be found on our post from last year.

On appeal, the Eighth Circuit first evaluated whether the plaintiff’s claim was an as-applied challenge or a facial challenge to the entire ordinance.  A facial challenge can result in invalidation of the entire ordinance, while an as-applied challenge only prohibits enforcement of the ordinance against the plaintiff.  Because the photographer failed to provide any evidence that third parties would be affected in a manner different from her, the court determined that Havlak’s challenge was an as-applied challenge.  Thus, the court only analyzed the ordinance’s application to the plaintiff.…
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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.”…
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