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.”
Continue Reading U.S. Supreme Court Issues Rulings in Two First Amendment Cases

This post was originally authored by Evan J. Seeman of Robinson & Cole LLP on the RLUIPA Defense blog.  We have re-posted it here with permission.  The original post can be found here.  Any views expressed in this post are those of the author and do not necessarily reflect the views of Otten Johnson Robinson Neff + Ragonetti, P.C.

Last year, we reported about a case in which the city of St. Michael, Minnesota utilized RLUIPA’s “safe harbor” provision to avoid liability under the act’s substantial burden and equal terms provisions.  While the federal court found for the city as to Riverside Church’s RLUIPA claims at the summary judgment stage, the court concluded that there were genuine issues of fact regarding Riverside’s free speech claim that could only be resolved at trial.  Following a several-week-long trial, the court late last month issued its decision and found that the city’s zoning ordinance violated Riverside’s right to free speech under the First Amendment to the U.S. Constitution, and awarded Riverside $1,354,595 in damages.

Riverside identified property in the city’s B-1 district as an ideal satellite location to accommodate its growing congregation.  Riverside would use the new location much like a movie theater, where it would broadcast religious worship services being held at its primary church in Big Lake, Minnesota.  The property was already suited for Riverside’s intended use, since it had previously been operated as a 15-screen movie theatre, with nearly 2,800 seats, a maximum capacity of over 3,600 people, and having more than 91,000 square feet.  Although Riverside sought to use the property in much the same way as a movie theatre – an allowed use under the zoning code for this B-1 district – the city concluded that the proposed use was not allowed since “collective religious worship” was not among the uses permitted in this district.
Continue Reading RLUIPA Defense: Church Wins Free Speech Claim Over Zoning Ordinance and $1,354,595 in Damages

We interrupt our regularly scheduled First Amendment programming to bring our readers some information about an upcoming American Planning Association webinar that may be of interest.  See below for information and how to register:

Webcast— Controlling the Local Impacts of Hydrofracking

June 7, 2017

1:00 p.m. – 2:30 p.m. EDT

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Donation boxes in Oakland, California. Source: East Bay Express.

Yesterday, in a case that we have been following for the past year, the Ninth Circuit Court of Appeals affirmed a California federal district court’s denial of a motion for preliminary injunction in a case pertaining to unattended donation and collection boxes in Oakland.

The plaintiff, a nonprofit group called Recycle for Change, places donation and collection boxes around Oakland in order to obtain donated materials for the dual purpose of conserving environmental resources and raising funds for charity.  The city enacted an ordinance in 2015 to regulate unattended donation and collection boxes, which included a requirement that the property owner or operator of the boxes obtain a permit, produce a site plan, and carry at least $1 million in liability insurance.  The license fee established under the permitting scheme is $246 per year, and the initial application fee for the permit is $535.  The city’s regulations require maintenance of the boxes, place restrictions on the size and location of the boxes, and prohibit the placement of boxes within 1,000 feet of one another.

Recycle for Change sued Oakland on First Amendment and Equal Protection Clause grounds.  The district court denied the plaintiff’s motion for preliminary injunction.
Continue Reading Ninth Circuit Affirms Denial of Preliminary Injunction in Oakland Donation Box Case

Dairy cows at Ocheesee Creamery. Source: Institute for Justice.

Some questions probably never need to be answered, and the universe of such questions might include the question: “what exactly is skim milk?” In a decision that sheds light on the current state of the commercial speech doctrine—and which may provide some helpful guidance for our local government readers—the Eleventh Circuit additionally provides some good analysis of low-fat dairy products.
Continue Reading What is Skim Milk? Eleventh Circuit Provides Some Insight in Commercial Speech Decision

Last week, the federal Ninth Circuit Court of Appeals ruled that a tattoo shop owner had standing to challenge Long Beach, California’s zoning regulations.  The regulations had the effect of precluding the owner from operating his business in Long Beach.

James Real, who owns a tattoo parlor in Huntington Beach, California, sought to open a tattoo parlor in Long Beach.  Long Beach’s zoning regulations do not allow tattoo parlors in most zoning districts in the city; require a conditional use permit for operation of a tattoo parlor; may not be located less than 1,000 feet from another tattoo shop, adult entertainment use, arcade, or tavern; and tattoo parlors’ business hours are strictly limited.  Real sought approval from the city to locate in one of three locations, but the city responded by informing Real that none of the locations allowed for a tattoo parlor.

Real filed suit under the First Amendment, alleging that his tattooing was First Amendment-protected activity, and that the city’s zoning regulations were not proper time, place, and manner regulations and constituted an unconstitutional prior restraint.  The district court held that Real did not have standing to challenge the zoning regulations because he had failed to apply for a conditional use permit.
Continue Reading Ninth Circuit: Tattoo Parlor Owner Has Standing to Bring First Amendment Claims

An advertisement for the organization Keep Chicago Livable states that home sharing is a “fundamental right,” yet the district court disagreed that home sharing implicated First Amendment rights.

Two weeks ago, a federal court in Illinois denied a request for a preliminary injunction against the City of Chicago’s recently-enacted short-term rental ordinance.  In its order, the court determined that the ordinance, which seeks to regulate individuals’ rental of units on Internet-based services such as Airbnb, VRBO, or HomeAway, did not affect the plaintiffs’ First Amendment rights to free speech.  The decision marks an interesting constitutional development in continued efforts by local governments to regulate short-term rentals.

In summer 2016, Chicago enacted what it calls the “shared housing ordinance,” or SHO.  The SHO requires hosts of units available for short-term rent to register their housing units with the city prior to listing their units on any Internet-based services.  Airbnb, VRBO, HomeAway and other services are also required to register with the city.  As applied to individuals, the SHO imposes requirements on the services provided by the short-term rental, and also requires individuals to maintain guest registries, and post their licensing information at the unit.
Continue Reading Chicago Short-Term Rental Ordinance Does Not Implicate First Amendment: Federal District Court

We take a break from our regularly-scheduled programming to make an announcement on behalf of the Planning and Law Division of the American Planning Association regarding a topic that may be of interest to some of our readers in the land use and municipal law worlds…

Webcast— Drone Technology: Implications on Policymaking and Design of

Since 2015, San Francisco, California, has attempted to regulate the sharing economy by allowing short-term rentals under certain conditions.  These conditions include requirements that the host register the premises with the city, and also that the host demonstrate proof of liability insurance, compliance with local codes, and payment of taxes.  The city later revised the ordinance to prohibit listing of short-term rentals on sites such as Airbnb without prior city registration.  The latter prohibition would impose potential liability on Airbnb, HomeAway, and other short-term rental websites that post listings without prior city registration.

In June 2016, Airbnb and HomeAway filed a lawsuit against San Francisco.  The city responded in August 2016
Continue Reading Court Denies Preliminary Injunction in San Francisco Airbnb Case

Late last month, the First Circuit Court of Appeals upheld a lower court decision finding that a New Hampshire law prohibiting digital photography of completed election ballots violated the First Amendment.  In the case of Rideout v. Gardner, the court found that the law was not narrowly tailored to a significant governmental interest, and therefore failed intermediate scrutiny review.

The New Hampshire law in question was commonly referred to as the “ballot selfie” law, since it prohibited individuals from taking cell phone photographs of themselves with their completed ballots.  The law was a 21st century update of an earlier state law dating back to the late 1800s
Continue Reading First Circuit Rejects New Hampshire “Ballot Selfie” Law