A marine mammal swims at Six Flags in Vallejo, California. Source: San Francisco Chronicle.

Last week, the federal Ninth Circuit Court of Appeals found that Vallejo, California’s requirement that a person obtain a permit before using a sound amplification is likely unconstitutional.  The court’s decision reverses the district court’s order denying the plaintiff’s motion for preliminary injunction, and allows the case to proceed to additional stages of litigation.

Joseph Cuviello is an animal rights activist in Vallejo who wished to protest alleged animal mistreatment at Six Flags Discovery Park, an amusement park.  Cuviello has been active in protesting Six Flags since 2006.  In 2014, Cuviello decided to begin protesting on a public sidewalk outside of the park, using a bullhorn.  Vallejo, however, requires a permit for the use of sound amplification devices, and the city imposes restrictions on the use of such devices.  Cuviello filed suit against the city, challenging the permit requirement as an unconstitutional prior restraint, and the ordinance as impermissibly vague and content based.  Cuviello eventually abandoned the latter arguments, and the court’s decision focused entirely on the prior restraint question. Continue Reading Ninth Circuit Finds That Permit Requirement For Bullhorns Violates First Amendment

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 or standing in a street median narrower than 36 inches was constitutional.  The court reiterated that the restriction was content neutral, and that it was narrowly tailored to the city’s interest in protecting public safety.

Evans v. Sandy City, ___ F.3d ___, 2019 WL 6519431 (10th Cir. Dec. 3, 2019).

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

Murals in Oakland, California. Source: Oaktown Art.

In August, the Ninth Circuit Court of Appeals affirmed a district court’s rejection of claims by the Building Industry Association of the Bay Area that the City of Oakland’s program requiring developers to contribute 1% of the cost of a development project to public art violated the First Amendment.  In an unpublished opinion, the circuit court concluded that, although such a program implicated free speech concerns, it did not compel any particular speech.  The court noted that the program offered developers wide latitude to determine how they might incorporate artwork into their projects.  The court agreed that the program was related to the city’s interests in encouraging aesthetic interest in the community. Continue Reading Federal Court Denies Challenge to Oakland, California’s “1% for Art” Program

A billboard in Texas. Source: Austin American-Statesman.

A federal district court in Texas recently found that the City of Cedar Park’s sign code was content based and unconstitutional due to its failure to distinguish between commercial and noncommercial billboards.

A billboard company sought permits to convert existing billboards to digital signs, as well as to erect new signs.  The city denied the permit applications for failure to comply with the city’s sign code, and the billboard company sued.  In its lawsuit, the billboard company argued that the city’s decision to distinguish between on- and off-premises signs was content based, because it applied to noncommercial signs in the same manner as commercial signs.  Generally speaking, the government may not distinguish between the content or message of various noncommercial signs.  Per the billboard company, a code enforcement officer would be required to determine the permissibility of the sign based on its content, in violation of the First Amendment.  The federal district court agreed and granted summary judgment in favor of the plaintiff.  About a month ago, the court denied the city’s motion for reconsideration. Continue Reading Texas City’s Sign Code Found Content Based, Unconstitutional

This past summer, the Seventh Circuit Court of Appeals found that a billboard company’s challenge to a billboard restriction in Bellwood, Illinois was mooted by the fact that the company lost its lease on the property that it intended to construct a billboard.  The court affirmed dismissal of the company’s First Amendment, equal protection, and antitrust claims.

In 2005, Paramount Media obtained leasehold rights to a property in the village abutting I-290, a high-traffic interstate corridor outside of Chicago.  Although it sought the necessary state permits for a billboard, it failed to seek permits from the village.  In 2009, the village amended its sign code to prohibit new billboards.  The village later amended the code again to allow billboards on village-owned property.  Paramount then sought to lease village-owned property along the interstate, but was rebuked, as the village had leased its property to another billboard company. Continue Reading Billboard Company Loses Suit Against Illinois Village

In a case that we reported on previously, the Third Circuit Court of Appeals has entered a ruling in favor of a group of animal rights activists that wished to protest the Barnum and Bailey Circus in a government-owned convention center and arena in Wilkes-Barre, Pennsylvania.

The facts of the case can be found in our earlier posts.  At issue on appeal were questions of whether the government could limit the area allowed for protests at the arena, whether the protesters could be prohibited from using profane language, and whether the convention center could prohibit the use of sound amplification. Continue Reading Appeals Court Affirms District Court Ruling in Favor of Pennsylvania Animal Rights Activists

The painted wall sign at issue in Downers Grove, Illinois. Source: CBS Local Chicago.

Last week, in a case that we reported on several years ago, the Seventh Circuit Court of Appeals has ruled that an Illinois village’s restriction on painted wall signs passes constitutional muster.  The case, which originated with a challenge by a local moving and storage company, confirms that restrictions on sign materials are generally content neutral and legally defensible.

The facts of the case can be found on our original post.  In ruling on the appeal, the Seventh Circuit confirmed that the village’s restriction on painted wall signs and the size of any wall sign are content neutral forms of regulation.  Although the village contended that the restriction in question was a commercial speech regulation and thus Central Hudson applied, the appeals court determined that whether Central Hudson or Reed applied was of no consequence.  Because the restrictions were content neutral, and because they were narrowly tailored to the village’s interests in aesthetics and traffic safety, they were sufficient to satisfy First Amendment requirements.

Leibundguth Storage & Van Service, Inc. v. Village of Downers Grove, No. 16-3055, ___ F.3d ___, 2019 WL 4629897 (7th Cir. Sept. 24, 2019).

The plaintiff in the case against Sandy City, Utah, who sought to overturn the city’s median restriction.

Earlier this summer, the Tenth Circuit Court of Appeals held that Sandy City, Utah’s restriction on sitting or standing in a street median of less than 36 inches in width met constitutional muster.  Although the regulation was principally aimed at addressing panhandling activity, the court found the regulation to be content neutral, affirming an earlier district court ruling in the case.  The court’s decision appears to offer an avenue for local governments to address safety concerns associated with panhandling, without treading on constitutionally unstable ground.

The Supreme Court’s 2015 decision in Reed v. Town of Gilbert resulted in the invalidation of many restrictions on panhandling in municipalities around the United States.  To get around the legal defects associated with panhandling prohibitions, municipalities—like Sandy City—have adopted general restrictions on sitting, standing, and remaining in street medians to achieve the same ends. Continue Reading Utah City’s Median Restriction Found Content Neutral, Constitutional

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 State Bar

Gentrification is one of the complex planning challenges of our times, but the legal limits on how local communities can respond to these pressures are often unclear. While there is no shortage of well-meaning ideas about how to slow the gentrification process or mitigate its impacts, some of those ideas may not be legal, and others could have significant unintended consequences. This webinar will review those laws that impose obligations to protect America’s citizens against some forms of pressure and discrimination, as well as those that prohibit certain local government actions. This review ill include the Community Reinvestment Act, the Fair Housing Amendments Act, and the Americans with Disabilities Act, and constitutional limits on interference with contracts or the fundamental right to buy and sell property. However, the real action on gentrification is at the local level, so panelists will also review selected municipal laws and policies.

Click here to register.