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 Portland ordinance required a sign much like this one to be posted on an unreinforced masonry building. Source: Willamette Week.

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.
Continue Reading Portland’s “Earthquake Warning” Placards Found To Violate First Amendment

One of the signs at issue in the case. Source: Riverfront Times.

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.
Continue Reading Appeals Court Reverses Order Upholding Missouri Enclave’s One-Sign Rule

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.
Continue Reading Pro Se Plaintiff Claims Victory Against Kansas Community In Sign Code Dispute

The American Legion in Howell Township. Source: www.whmi.com.

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.
Continue Reading Court Grants Zoning Administrator’s Motion to Dismiss in Michigan Billboard Case

Earlier this fall, a federal district court in California entered an order dismissing a challenge to election sign regulations promulgated by the City of Coalinga, California.  Coalinga had a sign regulation that prohibited the display of election signs more than 60 days prior to and more than seven days after an election.  June Vera Sanchez and the Dolores Huerta Foundation sought to display political messages outside of the election season, and challenged the regulation on First Amendment grounds in an action filed in June 2018.  Following the filing of the lawsuit, in July 2018, the city amended its regulations to withdraw the challenged election sign regulation.  In August 2018, the city filed a motion to dismiss, arguing that the plaintiffs lacked standing to bring their claim and that the action was moot.
Continue Reading California City Successfully Moots Challenge By Withdrawing Election Sign Rules

A recent discovery dispute over Madison, Wisconsin’s revised sign codes recently provided a reminder regarding the evidence that is and isn’t relevant in a Free Speech challenge.  And let’s not bury the lede: a legislator’s private motivations for amending the sign code, the court concluded, don’t matter.

A only-in-Wisconsin billboard. Photo credit: Environmental Protection Agency, public domain

Adams Outdoor Advertising, a billboard operator, brought a facial and as-applied First Amendment challenge to Madison’s sign code after the city’s 2017 overhaul severely restricted off-site advertising.  The challenge itself is ongoing and Adams Outdoor contends that Reed v. Town of Gilbert’s test for content-based regulations—and not Central Hudson’s more permissive test for commercial speech regulations—should invalidate Madison’s new approach.

In the hopes of bolstering that contention, Adams Outdoor submitted discovery requests for information about the purpose of the 2017 amendment and, in particular, legislators’ personal motivations for adopting it.  The city refused to provide the information, invoking legislative privilege, and the dispute eventually reached the court.
Continue Reading No Discovery on Legislators’ Personal Motivations for Sign Code Overhaul, says District Judge

Photo Credit: Robert Coure-Baker. Used subject to creative commons license https://creativecommons.org/licenses/by/2.0/

In an effort to curb visual clutter and reduce litter, Chicago’s sign ordinance has, since 2007, prohibited posting “commercial advertising material” on city-owned property.  No longer, however.  Writing recently, the U.S. District Court for the Northern District of Illinois struck

The U.S. District Court for the Eastern District of Missouri recently sided with a St. Louis-area locality of 1,500 best known as the home of the events behind The Exorcist, upholding its sign code against a motion for preliminary injunction.  The principle facts were these: the City of Bel-Nor code allows one double-faced stake-mounted yard sign per improved parcel.  Plaintiff Lawrence Willson placed three such signs in his yard, a window sign near his front door asking first responders to rescue his pets, and an “Irish for a Day” flag in his garden.  Bel-Nor cited him for violating the one-sign-per-yard ordinance, but did not take issue with the window sign or garden flag, although they too likely violated its sign code.

Lawrence, represented by the ACLU, sought a preliminary injunction to enjoin Bel-Nor from enforcing its entire sign code ordinance, arguing that the ordinance violated his Constitutional right to Free Speech.  The district court rejected the request with a rote application of First Amendment principles.
Continue Reading Tiny Enclave’s One-Sign Rule Survives Initial Constitutional Challenge