The editor and authors of the Rocky Mountain Sign Law blog are pleased to announce that we will be participating in several upcoming programs on the topics of sign regulation and other free speech and land use matters.  We hope that our readers will have the opportunity to attend or tune into one of these upcoming programs:

  • On Monday, October 24, 2016 at 10:15 a.m. MT, Brian Connolly will, along with Don Elliott of Clarion Associates and Todd Messenger of Fairfield and Woods, P.C., lead a program entitled “Defining Sign & Other Pesky Sign Regulation Problems” at the 2016 annual conference of the Colorado Chapter of the American Planning Association in Colorado Springs, Colorado.
  • On Wednesday, October 26, 2016, Brian Connolly will lead a two-part workshop at the 2016 Planning Michigan Annual Conference in Kalamazoo, Michigan.  The first part of the workshop will be a discussion of Reed v. Town of Gilbert and some of the case law that has come down since the Supreme Court’s 2015 decision.  The second part of the workshop will be a sign code “fix-it” clinic, where attendees will review their own sign codes for content neutrality and other First Amendment problems.
  • On Friday, November 4, 2016, Brian Connolly will be addressing CLE International’s 22nd annual Land Use Law: How-To conference on the topic of sign regulation after Reed v. Town of Gilbert.
  • On Friday, January 6, 2017, Brian Connolly will be speaking on “Update on Zoning and First Amendment Cases Since the Supreme Court’s Ruling on Sign Regulation in Reed v. Town of Gilbert” at the 34th Annual National CLE Conference in Snowmass, Colorado.
  • Mark your calendar for the annual Rocky Mountain Land Use Institute conference at the University of Denver Sturm College of Law March 15-17, 2017.  Brian Connolly will speak on a panel at the conference with Cameron Artigue of Gammage & Burnham about signs, free speech, religious land uses, and much more.

In a case that we reported on last year, the Second Circuit Court of Appeals last week upheld a federal district court’s decision to dismiss a case involving an illuminated peace sign high above the sidewalks of New York City.  Bridget Vosse desired to display a lighted peace sign from her condominium in the Ansonia Building, but New York City prohibits lighted displays more than 40 feet above sidewalk level.  The Second Circuit previously held that New York City’s ban on lighted sign displays more than 40 feet above street level was content neutral.  On remand, the district court found that the regulation served a significant governmental interest in aesthetics, that the regulation was narrowly tailored to that interest, and that the regulation provided ample alternative channels for communication of the information.  The Second Circuit’s opinion affirmed for the same reasons contained in the district court decision.  Despite the plaintiff’s objection that the ban on illuminated signs was not narrowly tailored due to several exceptions, the Second Circuit found that New York City passed the narrow tailoring test because the city was only required to focus on its most pressing concern, not solve all problems at the same time.  With respect to ample alternative channels, the court found that the plaintiff’s reliance on the Supreme Court case of City of Ladue v. Gilleo was misplaced, since Ladue involved a complete ban on all residential signs, while the New York City ban applied only to lighted signs placed at a certain height.

Vosse v. City of New York, ___ Fed. App’x. ___, 2016 WL 6037372 (2d Cir. Oct. 14, 2016).

An inflatable rat in Grand Chute, Wisconsin.
An inflatable rat in Grand Chute, Wisconsin.

In 2014, a labor union decided to protest the practices of an employer in Grand Chute, Wisconsin by placing large inflatables in public right-of-ways.  These inflatables included a giant rat and a large cat wearing a suit and strangling a worker.  Grand Chute’s sign code prohibited the placement of private signs in the right-of-way.  After the town government took enforcement action against the union, a federal district court denied the union’s request for a preliminary injunction and granted summary judgment in favor of the town.

On appeal from the summary judgment order, however, Judge Easterbrook, writing for the panel, questioned whether the case involved a live controversy.  Continue Reading Seventh Circuit: Wisconsin “Rats and Cats” Case May Be Moot

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

The Halloween “Trump Wall” in West Hartford. Source: Hartford Courant.

Halloween is a time for ghouls, goblins, monsters, and . . . scary sign regulation problems.

An interesting Halloween tradition in West Hartford, Connecticut has taken on a political dimension in advance of the 2016 presidential election.  Matt Warschauer has constructed, as part of his home Halloween display, a “Trump Wall” in his yard, complete with statues of The Donald, Hillary Clinton, and plenty of orange and black accoutrement.

So, the question (for sign regulation geeks such as ourselves) comes to mind:  is the “Trump Wall” a sign?  The West Hartford code defines “sign” as “Any device for visual communication which is used for the purpose of bringing the subject thereof to the attention of the public, including the devices displayed within three feet behind windows and visible from outside of the building. Merchandise or facsimile merchandise shall not be considered a sign.”  Thus, it seems like the Trump Wall could be a sign.  And it seems almost certain that the Trump Wall is a noncommercial sign, since it does not appear to propose a commercial transaction.

The West Hartford sign code goes on to describe special regulations for “holiday decorations” as follows:  “Holiday decorations without commercial advertising” have no limits on maximum sign area, maximum number of signs, location on the property, and do not require a permit.  This provision bodes well for the Trump Wall.

But to avoid further questions about our mental state, we’ll refrain from comment on whether the West Hartford code is content neutral.  Happy Halloween!

Special thanks to Evan Seeman of Robinson & Cole for bringing this story to our attention.

Late last month, a federal district court in Louisiana upheld the City of Shreveport’s ban on door-to-door commercial solicitation, finding that the ban was supported by a substantial governmental interest in community safety, and further finding that the ban directly advanced the government’s interest.  The plaintiff, Vivint Louisiana, LLC, is a maker and seller of residential home security systems that markets primarily through door-to-door solicitation.  Claiming that it was unable to conduct its business in Shreveport, Vivint sued the city.  The court found that the case was governed by Central Hudson, and that the city’s prohibition on solicitation should be reviewed as a restriction on commercial—as opposed to noncommercial—speech.  The court’s treatment of the ban as a commercial speech regulation was based entirely on the language of the ban, which prohibited solicitation “for the purpose of soliciting orders for the sale of goods, wares and merchandise, or for the purpose of disposing of or peddling or hawking such goods, wares and merchandise.”

Vivint Louisiana, LLC v. City of Shreveport, slip op., No. 15-0821, 2016 WL 5723983 (W.D. La. Sep. 30, 2016).

A digital billboard in New Jersey. Source: nj.com.

In a surprising decision, the New Jersey Supreme Court found earlier this month that a township ordinance prohibiting digital billboards violated the free speech provisions of the U.S. and New Jersey constitutions.

Franklin Township, New Jersey, a suburban community in Somerset County, enacted sign regulations that allowed billboards in zoning districts near interstate highways.  The regulations prohibited digital billboards.  The township justified its regulations on the basis of traffic safety and aesthetics.  Various township bodies suggested that the ban on digital billboards was enacted because the township did not have sufficient information on the safety of digital billboards in order to craft appropriate regulations.  Because state law imposes dispersal requirements on billboards, it was established that the township could have just three static billboards and just one digital billboard.

In 2009, E&J Equities sought a variance to allow the placement of a digital billboard in the township.  Because digital billboards were not allowed, the request was brought before the township’s Zoning Board of Adjustment.  The ZBA did not approve the application.

Thereafter, E&J brought an action against the township in state trial court.  The trial court found that the township failed to meet intermediate scrutiny Continue Reading New Jersey Supreme Court: Digital Billboard Ban Unconstitutional

The City of Harrisburg, Pennsylvania enacted a “buffer zone” ordinance that disallows an individual to “knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility.”  A group of plaintiffs, protesters and sidewalk counselors near abortion clinics, challenged the law on First Amendment grounds.  Two weeks ago, a federal district court in Pennsylvania granted the city’s motion to dismiss several of the plaintiffs’ claims and denied a preliminary injunction to the plaintiffs.

Citing the 2014 Supreme Court case of McCullen v. Coakley, the court found that the city’s 20-foot buffer zone restriction was content neutral and therefore subject to intermediate scrutiny review.  The court determined, however, that the city should be required to present evidence that the regulation in question was narrowly tailored to a significant governmental interest as required by the First Amendment.  Accordingly, the court allowed the plaintiffs’ narrow tailoring claim to proceed.  The court dismissed the plaintiff’s claims regarding vagueness, prior restraint, selective enforcement, and Free Exercise Clause claims.  With respect to the plaintiff’s request for a preliminary injunction, the court found that the plaintiffs did not show how they might succeed on the merits of the case:

Although Defendants have not made a clear showing, at the preliminary injunction stage, it is Plaintiffs who have the burden of clearly establishing a probability of success on the merits. Based on the record before the court, Plaintiffs have failed to carry that burden.

We have reported on several buffer zone cases in recent months, as more plaintiffs challenge these common methods of protecting patients and employees at reproductive health care clinics.  Given the higher evidentiary burdens placed on local governments following McCullen, it remains to be seen how many of these buffer zone laws will survive judicial scrutiny.

Reilly v. City of Harrisburg, Slip Op., No. 1:16-CV-0510, 2016 WL 4539207 (M.D. Pa. Aug. 31, 2016).

Last month, a federal magistrate judge in New York recommended invalidating yet another sign code as content based in violation of the First Amendment to the U.S. Constitution.  In February 2015, a resident of the Village of Perry, New York, Carolyn Grieve, posted signs complaining about the village’s spending policies.  Grieve received a notice of violation from the village.  In April 2015, Grieve filed suit against the village, alleging that the sign code was content based and an unconstitutional prior restraint on speech, and that the village had engaged in selective enforcement of the code against her.  Because the village code allowed the display of several types of commercial signs without a permit while requiring permits for the display of noncommercial signs, the magistrate judge found the sign code to be content based.  As the village offered no rationale to support its code provisions, the magistrate found that the village failed strict scrutiny review, and recommended summary judgment in favor of the plaintiff.

Grieve v. Vill. of Perry, Slip Op., No. 15-CV-00365-RJA-JJM, 2016 WL 4491713 (W.D.N.Y. Aug. 3, 2016).

The court ruled that signs like the one shown above are forced speech in contradiction of First Amendment rights of utility companies. Source: Newsday.

In a decision that could have far-reaching consequences, earlier this year, a federal court in New York found a town law requiring the placement of warning signs on utility posts violated the First Amendment as a content based restriction on noncommercial speech.

In 2014, the Town of North Hempstead, New York adopted a local law requiring warning signs on utility posts in the town.  The law came about following local opposition to the erection of a new overheard electricity transmission line through the town.  As part of the project, the Long Island Power Authority (LIPA) and PSEG Long Island LLC (PSEG) placed new utility poles Continue Reading Court:  Utility Pole Warning Signs are Forced Speech in Violation of First Amendment