Last week, in a case that we reported on several years ago, the Seventh Circuit Court of Appeals has ruled that an Illinois village’s restriction on painted wall signs passes constitutional muster. The case, which originated
Earlier this month, the Sixth Circuit Court of Appeals struck down Tennessee’s outdoor advertising statute, finding it to be content-based in violation of the First Amendment. The court’s ruling affirms an earlier ruling by a federal district court.
A billboard owner challenged the Tennessee Billboard Act after he posted a sign supporting the 2012 U.S. Olympic Team. The sign was located on vacant land, and the owner had failed to secure a permit from the Tennessee Department of Transportation for the billboard, as required by the law. The transportation department’s rationale for denying the permit was that it was not entitled to the law’s exception to permitting for on-premises signs, which the law generally defined as relating to the premises on which the sign was posted. While the TBA was generally intended to apply exclusively to commercial off-premises speech, the state’s denial of a permit to the plaintiff appeared to apply to noncommercial speech, i.e., the owner’s support for the Olympic team.…
In a case that we’ve reported on previously, the Third Circuit Court of Appeals held last week that the Pennsylvania Department of Transportation’s rules pertaining to billboard permitting violate the First Amendment. The court’s decision is yet another in a string of decisions from around the country making it more difficult for government to restrict the proliferation of off-premises signage.
To refresh our readers’ memory, Pennsylvania regulates billboards under its Outdoor Advertising Control Act of 1971. That law prohibits the placement of billboards within 500 feet of a highway interchange or rest area, with an exception for official signs or on-premises “for sale or lease” signs. The law also requires that a billboard advertiser obtain a permit from the state’s transportation department, but does not set forth a timeframe for such a permit to be processed.
Adams Outdoor, a billboard company, sought to install a billboard in Hanover Township, Pennsylvania. After processing the permit application for over a year, the state’s transportation department eventually denied the permit on the grounds that the sign violated the interchange restriction. Adams challenged the interchange restriction and permitting procedures under the First Amendment, and also claimed that the billboard law was unconstitutionally vague.…
This blog post was authored by Alexandra Haggarty, a summer clerk with Otten Johnson. Alex is a rising 3L at the University of Colorado Law School.
A federal judge in North Dakota recently granted a temporary restraining order to enjoin the City of Mandan from enforcing a content-based ordinance regulating murals and signs.
The ordinance requires building owners to obtain a permit before displaying a sign or figurative wall mural. A commission reviewing applications makes decisions based on guidelines and regulations, including those prohibiting murals that are commercial, have words as a dominant feature of the art, have political messages, or are on the front of the building.
The Lonesome Dove, a saloon that’s been a fixture on a main road for twenty-eight years, had until recently only decorated its exterior with beer ads. Most recently, it had a Coors Light logo painted on the front wall. Although the saloon never sought a permit for the logo, it was never cited for violation. Seeking to reinvigorate its exterior, the saloon – not knowing it needed a permit – painted a 208 square-foot Western-themed “Lonesome Dove” mural on the front of the building in 2018. …
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.…
This post was authored by Alexandra Haggarty. Alex is a summer clerk at Otten Johnson, and a rising 3L at the University of Colorado Law School.
In a case challenging a Portland, Oregon ordinance, a federal judge granted a preliminary injunction to a group of building owners who would have been compelled to post a potentially misleading message. The judge, suspecting the city was not forthcoming about its real motive behind the ordinance, found the requirements failed strict scrutiny and burdened First Amendment rights.
Portland has long encouraged owners of unreinforced masonry buildings (“URMs”) to retrofit and reinforce their properties to be stronger in the event of a major earthquake, but has remained unable to garner enough political and public support to mandate doing so. Instead, it implemented an ordinance requiring owners of designated buildings to display exterior placards disclosing the risks of major earthquakes in URMs. The ordinance required the placard state: “This is an unreinforced masonry building. Unreinforced masonry buildings may be unsafe in the event of a major earthquake.” The ordinance also required owners to (1) include a tenant notification provision in lease applications disclaiming risk and (2) document compliance with the ordinance.…
In a case that we reported on around this time last year, late last month, the Eighth Circuit Court of Appeals reversed a federal district court’s ruling denying a motion for preliminary injunction against Bel-Nor, Missouri’s “one sign” rule. The Eighth Circuit’s ruling means that the city will be temporary enjoined from enforcing the law.
The facts of the case are discussed in our earlier post.
The court of appeals had no problem finding that the city’s sign regulation violated the First Amendment. The law allows just one freestanding yard sign, as well as one flag. The definition of “flag” in the city’s code indicates that the object must be a “symbol of a government or institution,” thus drawing a distinction based on the message a speaker conveys. Applying the Supreme Court’s holding in Reed v. Town of Gilbert, the court found the regulation was content based. The court then found that the code was not narrowly tailored so as to pass muster under strict scrutiny.…
Earlier this month, a federal district court in Kansas awarded summary judgment to a plaintiff who claimed that the City of Williamsburg’s sign code violated the First Amendment.
The plaintiff, Eric Clark, placed several signs and other objects in a city right-of-way easement. The city issued a notice of violation, which set off a series of interactions between the city’s code enforcement officer and Clark, and Clark issued several letters to the city claiming various violations of his civil rights. Although the city desisted from further enforcement action, Clark, representing himself, filed a lawsuit against the city.…
Two weeks ago, a federal district court granted the motion to dismiss of Joe Daus, the zoning administrator for Howell Township, Michigan, in a case challenging the township’s billboard regulations.
Crossroads Outdoor is a billboard company that sought to install a sign on property owned by the local American Legion post in Howell Township. The township, through Daus, denied the variance on the grounds that it was not permissible to place the sign in the parking lot of the American Legion. After some back and forth on the application, the township eventually passed a moratorium on new signs in 2018 pending the adoption of a new sign ordinance. Crossroads’s sign application has not yet been approved.…
Fortunately for those of us in the practice of First Amendment-related law, expressive conduct can be wildly entertaining. And in Westford, Vermont, a local land use dispute has turned into a full-blown First Amendment fiasco.
Apparently operating on the old…