The controversial church sign in Shickshinny. Source: citizensvoice.com.

Last week, the Third Circuit Court of Appeals entered an order upholding the district court’s decision in the case of Tearpock-Martini v. Shickshinny Borough, which we reported on last summer.  The case involved an Establishment Clause challenge by a citizen to a Pennsylvania borough’s decision to install a sign in the right-of-way stating “Bible Baptist Church Welcomes You!”  The district court found, on a motion for summary judgment, that the sign did not violate either the three-part Lemon test under the Establishment Clause, and that it did not violate the endorsement of religion test.

The Third Circuit found the plaintiff’s arguments regarding the posting of other signs in the right-of-way unconvincing.  The plaintiff made much of the fact that the only other sign in borough right-of-way was a directional sign to a boat launch, and that the borough had not permitted a post office sign in the right-of-way.  But the Third Circuit noted that the post office never applied for a sign in the right-of-way, and further pointed out that the borough’s approval and subsequent installation of the church sign did not send a message of endorsement.

Tearpock-Martini v. Shickshinny Borough, ___ Fed. App’x ___, 2017 WL 35714 (3d Cir. Jan. 4, 2017).

One of the images that FFRF wished to display in the Texas capitol. Source: New York Post.

Late last month, a federal court in Texas denied a motion for summary judgment filed by the State of Texas in a case challenging the state’s policy for allowing privately-sponsored displays in the state capitol building.

The Texas State Preservation Board allows private individuals and groups to display exhibits “for a public purpose” in the public areas of the Texas state capitol building, subject to the board’s approval.  A private group, Freedom From Religion Foundation, which advocates for separation of church and state, wished to display an exhibit in December 2015 depicting life-size figures celebrating the birth of the Bill of Rights, along with Continue Reading Exhibits in Texas State Capitol Do Not Constitute Government Speech, Viewpoint Discrimination Claim Moves Forward

Some of Higher Society’s decor on the Tippecanoe County courthouse. Source: WLFI.

Earlier this week, a federal court in Indiana issued a preliminary injunction in favor of a group of marijuana advocates, Higher Society of Indiana, who wish to hold rallies on the steps of the Tippecanoe County courthouse.  The county government denied the group’s request to hold rallies in that location because the county disagreed with the group’s message.

In 1999, the county issued a policy regarding use of the courthouse grounds by non-governmental groups.  The policy requires a group wishing to hold an event on the courthouse grounds to obtain a sponsorship approval Continue Reading Free Speech and Funny Cigarettes: “Higher Society” Wins Preliminary Injunction to Hold Pro-Marijuana Rally on Indiana Courthouse Steps

A photo of the “Temple Burn” engaged in by Catharsis on the Mall in 2015. Source: catharsisonthemall.com.

Last month, the federal district court in Washington, D.C. denied a request for a preliminary injunction against the National Park Service’s enforcement of its bonfire restrictions on the National Mall.  A group sought to host a demonstration on the Mall that would have attracted more than 4,000 participants and involved the burning of a wooden “Temple” as a symbol of support for additional protections and services for veterans.  The National Park Service denied the group’s request for a permit based on newly-enacted rules regarding bonfires on the Mall, which limited the size of bonfires for safety purposes.  Prior regulations allowed bonfires with a National Park Service permit.  Continue Reading No Preliminary Injunction in National Mall Bonfire Case

The Fremont Street Experience in Las Vegas. Source: Vegas Experience.

Fremont Street in Las Vegas is one of the city’s major tourist attractions.  It is operated and managed by a private concessionaire, Fremont Street Experience, LLC.  The city government regulates street performances on Fremont Street, controlling the areas in which street performances take place, limiting noise made by street performers, designating times in which street performances are allowed, establishing a lottery system to allocate times and locations among street performers (25 to 38 performers, depending on the time of the day), and requiring that street performers obtain a city license.  In a prior case, the Ninth Circuit Court of Appeals found Fremont Street to be a traditional public forum.

Continue Reading Court Denies Preliminary Injunction in Las Vegas Mall Case

Earlier this year, a federal district court in Washington granted the City of Port Orchard’s motion for summary judgment with respect to alleged violations of the First Amendment rights of Engley Diversified, Inc., a billboard company.  Engley sought damages under federal and state law for what it alleged were wrongful denials of billboard permits by the city.

The case, which has a lengthy and twisted procedural history, stems from the submission of six permit applications by Engley to the city in 2010.  Engley sought to construct three billboards in the city.  The city’s code enforcement officer denied the permits, interpreting the sign code as prohibiting them.  Engley appealed to the city’s hearing officer.  During the pendency of the appeal, the city council enacted an ordinance prohibiting all off-premises advertising billboards throughout the city.  The city’s hearing examiner subsequently denied the appeal on the merits, finding that the code enforcement officer’s interpretation of the sign code was not clearly erroneous.  In December 2010, Engley appealed to the city council, Continue Reading City’s Denial of Billboard Permits Does Not Violate First Amendment: Federal Court

The Ten Commandments monument outside of Bloomfield’s city hall. Source: wildhunt.org.

Earlier this month, the Tenth Circuit Court of Appeals ruled that Bloomfield, New Mexico’s installation of a Ten Commandments monument on the lawn in front of city hall violated the Establishment Clause of the First Amendment.

In 2007, upon request of one of its members, the Bloomfield city council approved the placement of the privately-donated monument.  At the time, the city lacked a policy regarding placement of permanent monuments, but it enacted one three months later.  The city’s policy required a statement to be placed on privately-donated stating that the speech was not that of the city but rather of the donor, and also required that such monuments relate to the city’s history and heritage.  After several years of fundraising and another city council approval, the 3,400 pound Ten Commandments monument was placed on the city hall lawn in 2011, and the city held a ceremony—replete with statements by elected officials and religious leaders—to dedicate the monument.  Over the course of the next two years, the city amended the monument policy, and allowed the installation of other monuments on the lawn, including monuments containing the Declaration of Independence, the Gettysburg Address, and the Bill of Rights, but did not advertise its policy of allowing donated monuments.

The federal district court held Continue Reading Installation of Ten Commandments On City Hall Lawn is Government Speech, Violates First Amendment

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

On Wednesday, November 9th, to celebrate the end of election season, the American Bar Association’s Section of Real Property, Trusts, and Estates will be holding a free teleconference on post-Reed speech regulation cases.  The dial-in information and a description of the call can be found below, and we hope that our readers will tune in:

Land use and Environmental Group (RP)
3:00 p.m. – 4:00 p.m. CST/4:00 p.m. – 5:00 p.m. EST
Call–in number: 866–646–6488
Participant Passcode: 601 676 1423
Group webpage

Our November call is hosted by the Land Use and Zoning Committee and will feature guest speaker Brian J. Connolly, Esq., of Otten Johnson Robinson Neff & Ragonetti, based in Denver, Colorado.  Brian will discuss key principles in municipal signage regulation, particularly with regard to election and political signs.  He will also cover recent developments in this area of the law in the wake of the Supreme Court’s 2015 decision in Reed v. Gilbert.  Please join us for this fun-filled, bi-partisan, post-election land use discussion!

The advertisement above was proposed to be placed in the Philadelphia airport. Source: ACLU of Pennsylvania.

In August, the Third Circuit Court of Appeals affirmed a lower court decision holding that the Philadelphia airport’s advertising policy was unreasonable in light of the purposes of the advertising space, in violation of the First Amendment.  The airport had previously enacted a policy that prohibited the display of any noncommercial advertising in city-owned advertising space.

The challenge was brought by the National Association for the Advancement of Colored People (NAACP), which wanted to place an advertisement in the airport that read “Welcome to America, home to 5% of the world’s people and 25% of the world’s prisoners.  Let’s build a better America together.  NAACP.org/smartandsafe.”  The city rejected the advertisement.

The appeals court assumed for purposes of argument that the city’s airport advertising space was a limited public forum, but found that the advertising policy was not reasonable.  The city’s purported interests in the prohibition of noncommercial advertising were to raise revenue and to avoid controversy in the airport.  The court found that the prohibition on noncommercial advertising did not reasonably advance either goal, because there was no evidence that the restriction on noncommercial advertising would advance the airport’s revenue goals and the airport was otherwise full of televisions and newsstands that already contained noncommercial speech that could be controversial.

The Third Circuit’s analysis is interesting in several respects.  The court undertook a long, detailed analysis of the litigation burdens in a limited public forum case.  Philadelphia argued that the court should analyze the policy under the rational basis standard of review, where the burden of proof is on the plaintiff to demonstrate that the government’s policy was not rationally related to a legitimate governmental interest.  However, the court, relying on several Supreme Court decisions, found that because the case addressed a fundamental right—the freedom of speech—the burden of proving that the policy was reasonable in light of the purposes of the forum was on the city.  This approach to burdens in limited public forum cases imposes a higher standard on the government to ensure that a regulation is actually reasonable.

The court also went into a lengthy discussion about how the city could meet its burden in this instance.  Again relying on prior Supreme Court precedent, the court found that a government need not back up every conclusion regarding speech in a limited forum with evidence, but some record evidence could be appropriate in helping the city to meet its burden.  Noting the holding in United States v. Kokinda, the court indicated that common sense and historical experience can also underlie a government policy restricting certain speech from a limited public forum.  With respect to the Philadelphia airport advertising policy, the court found that the city had provided neither record evidence nor any common sense rationale for the noncommercial speech prohibition.  In particular, the court focused on the deposition of one of the airport’s managers, who admitted in his deposition that the noncommercial ban did not actually do anything to further the city’s interest in revenue and could not establish how the ban actually helped travelers avoid potentially offensive content.

This decision follows two other recent cases out of Chicago and Fort Wayne that have also held advertising policies in limited public fora to be unreasonable.

N.A.A.C.P. v. City of Philadelphia, 834 F.3d 435 (3d Cir. 2016).