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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

Bourbon Street in New Orleans. Source: neworleans.com.

This week, a federal district court denied the City of New Orleans’s motion to dismiss a First Amendment claim challenging the application of the city’s short-term rental law.

Plaintiff Dawn Adams Wheelahan challenged the city’s short-term rental regulations on a variety of grounds.  The city had revoked her license to rent her property on a short-term basis, in part for failing to display her license on the property or in her advertising of the property for short-term rental.  Wheelahan brought several claims against the city, including a Fifth Amendment takings claim, an Eighth Amendment excessive fines claim, and other constitutional claims.  Included in the complaint were claims of an unconstitutional prior restraint and content-based restrictions under the First Amendment.  The plaintiff argued, in essence, that the city’s permitting requirement and other restrictions on short-term rentals operated as a prior restraint on her advertising of the short-term rental, and that the requirement that she include her license in advertising was content based, compelled speech.
Continue Reading Court Denies New Orleans’s Motion to Dismiss First Amendment Claim Against Short-Term Rental Ordinance

Large religious gatherings, such as Catholic masses, may result in virus transmission, but may be difficult for U.S. governments to prohibit. Source: Catholic Sun.

Since the rest of the world seems to be taking a break from regular activities amid the COVID-19 outbreak, we’ll take a break from our regularly-scheduled programming to offer our view of the pandemic through the lens of our favorite topic:  First Amendment rights.

China’s response to the outbreak in Wuhan is well-documented.  Mandatory quarantines, citywide shutdowns, prohibitions on gatherings, and other such actions were implemented swiftly.  We in the United States have not yet seen such a response, and there’s no telling whether such a response will be needed.  But because we enjoy more individual liberties than do Chinese citizens, what might be the legal consequences of some of these actions?  We offer some thoughts below for state and local regulators:
Continue Reading COVID-19 and the First Amendment: Thoughts for State and Local Regulators

Our friends at the APA Planning and Law Division will host a webinar on Deregulatory Trends in Land Use later this month.  We encourage our readers to register!  A description of the webinar and registration link follows:

Rising housing costs and environmental concerns have led to efforts to “upzone” communities by deregulating limits on higher-density…

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 …

A Broke Ass Phone location in Strongsville, Ohio. Source: Broke Ass Phone.

In a somewhat entertaining case out of Boardman Township, Ohio, the state court of appeals has ruled that a business called “Broke Ass Phone” may display its sign under the Boardman Township zoning ordinance, which otherwise prohibits obscene or offensive signs.

Broke Ass Phone is a company that specializes in repairing broken smartphones and other devices.  In 2015, the company applied for a sign permit in Boardman to allow the company to post its business sign.  The township zoning inspector denied the permit application, finding that it violated the township code provision prohibiting obscene signs.  The applicant then appealed the decision to the township’s Board of Zoning Appeals.  In 2017, the board denied the appeal.  The company then appealed the denial to the local common pleas court, asserting First Amendment arguments.  The common pleas court affirmed the decision of the zoning appeals board, and the company appealed to the state appeals court.
Continue Reading Ohio Appeals Court Finds That “Broke Ass Phone” Is Not Obscene, May Be Displayed On A Business Sign

We take a break from our regularly-scheduled program to advise our readers of a webinar that will be hosted by our friends at the American Planning Association’s Planning and Law Division:

Gentrification, Displacement, and the Law

Thursday, October 10, 2019
2:30 p.m. – 4:00 p.m. CT

CM I 1.50 I Law
CLE 1.50 through Illinois…

New York City taxi cabs. Source: New York Post.

In a decision issued last week, the Second Circuit Court of Appeals ruled that New York City’s Taxi and Limousine Commission can restrict in-vehicle commercial advertising in for-hire vehicles, including yellow cabs, Uber, and Lyft.  The decision reverses an earlier ruling by a district court holding that the ban violated the First Amendment rights of advertisers.

New York City’s TLC regulates for-hire vehicles in the city.  For nearly 20 years, the TLC has prohibited commercial advertising in for-hire vehicles, except on screens installed in yellow cabs called “Taxi TV,” which otherwise allow patrons to use credit cards to pay their cab fares.  Noncommercial messages are permitted to be displayed in for-hire vehicles.  Vugo is a company that wished to sell a software platform for advertising in Uber and Lyft vehicles, which are not otherwise equipped with Taxi TV.  The TLC rules prohibited Vugo’s proposal, and Vugo sought relief in federal court. 
Continue Reading New York City Can Ban Commercial Advertising In Cabs, Uber, Lyft Under New Ruling

Tattooing is protected by the First Amendment. Source: Creative Commons.

Two weeks ago, a federal district court in California granted preliminary injunctive relief to a tattoo shop owner who challenged the City of Montebello, California’s geographic restrictions on body art establishments.

Montebello’s regulation prohibits tattoo parlors within 1,000 feet of certain sensitive uses, including residential properties, schools, libraries, and religious institutions.  The effect of the regulation is to limit such establishments to two small shopping centers in the city.  Tattoo parlors are also subject to a conditional use permit requirement, in which the city is required to determine that the use will not have an adverse effect on surrounding properties and that it is consistent with city planning goals.
Continue Reading Court Grants Preliminary Injunction in California Tattoo Parlor Case

An apartment advertised for short-term rental. Source: Creative Commons.

Last month, the federal Ninth Circuit Court of Appeals affirmed a district court’s denial of a preliminary injunction in a case initiated by HomeAway and Airbnb challenging the City of Santa Monica, California’s short-term rental regulations.  The plaintiffs in the case alleged violations of the First Amendment right to freedom of association.

Located on the Pacific coast and known as a tourist destination, by early 2018, Santa Monica had nearly 2,000 Airbnb or HomeAway listings—in a city of just 90,000 residents.  In response to the various problems created by short-term rentals, the city council passed an ordinance limiting short-term rentals to only “home-shares,” where the resident of the unit is present during the rental period.  Santa Monica also collects taxes on short-term rentals, requires licenses, and imposes disclosure obligations on hosts.  HomeAway and Airbnb filed a variety of challenges to the ordinance, and moved for a preliminary injunction, which was denied by the district court.
Continue Reading Ninth Circuit Affirms Denial of Preliminary Injunction in Santa Monica Short-Term Rental Case