Allegations of a politically motivated lay-off were the subject of a recent U.S. District Court decision out of Gary, Indiana.  In Moore v. Calumet Township of Lake City, Plaintiff Marsha Moore filed suit against Calumet Township of Lake County and the Calumet Township Trustee, Kimberly Robinson, claiming that Defendants violated her First Amendment right to political association when they terminated her employment. 2:18-CV-106-TLS, 2022 WL 196366, at *1 (N.D. Ind. Jan. 21, 2022).  In 2014, Ms. Moore, who had worked in the Calumet Township Trustee Office since 1990, actively supported and campaigned for the reelection of her then-supervisor, Mary Elgin, to the Township Trustee position.  Ms. Robinson, one of the defendants, was the opposing candidate in the race.  On several occasions Ms. Robinson witnessed the plaintiff campaigning in an Elgin t-shirt, holding an Elgin sign, and displaying an Elgin bumper sticker on her car.

Continue Reading Political Association Claims Brought by Fired Government Employee Survive Summary Judgment

Before Halloween in 2018, the Butts County Sheriff’s Office placed signs in the front yards of registered sex offenders in the County, warning against trick-or-treating there.  The next year, three registered sex offenders sued to enjoin County Sheriff Gary Long from placing the signs again, claiming that they constituted compelled speech in violation of the First Amendment.  Although the district court granted summary judgment in favor of the Sheriff, the Eleventh Circuit recently reversed, finding the signs to be unconstitutional compelled speech.

Prior to 2018, the Sheriff’s Office had distributed warning fliers to registered sex offenders and asked that they place them on their doors before Halloween.  No evidence suggested that any sexual offenses or unwanted contact with minors had occurred in these prior years; on the contrary, the Sheriff admitted that no such incidents had been known in his tenure with the County.  However, simply because the Sheriff believed that signs would be more effective than fliers, the County changed its practice.  Officers placed signs (depicted below) in the yards of all registered sex offenders and told residents that only the Sheriff’s Office could remove them.

At trial, the district court found that the signs did not constitute compelled speech because a reasonable third party would not view the sign as endorsed by the registrant.  That court focused on two major factors: (1) that the signs were clearly government speech, and (2) that registrants were not prohibited from placing their own competing signs.  However, as pointed out on appeal, neither of these factors are relevant when determining whether speech is compelled by the government.

The Eleventh Circuit easily found that the signs were a “classic example” of compelled speech because they stated that the warning was “a community safety message from Butts County Sheriff Gary Long,” were placed on yards despite homeowners’ and/or residents’ objections, and could only be removed by the Sheriff’s office.  Well-established Supreme Court precedent does not require that a reasonable third party would view the speech as endorsed, and any ability to offer competing speech does not cancel out the compelled speech.  Unless narrowly tailored to meet a compelling state interest, the forced display of government speech on private property violates the constitutional right to refrain from speaking.

Here, all parties agreed that preventing child sex abuse is a compelling interest, but the court found that the signs failed strict scrutiny because they were not narrowly tailored to serve this interest.  As the Sheriff admitted, no evidence existed to support the need for the signs to prevent child sex abuse on Halloween.  Additionally, although the Sheriff’s Office could have limited posting to yards of registrants with a known risk of recidivism, it posted signs on the yards of all registrants–even those determined to be rehabilitated.

The court reversed the district court’s holding as it applied to one plaintiff who owned his residence, with instructions to enter summary judgment and a permanent injunction in that plaintiff’s favor.  Because the other two plaintiffs did not own their residences, the court vacated and remanded for proceedings consistent with the opinion, taking into consideration any issues of standing.

 

McClendon v. Long, No. 21-10092, 2022 WL 165992 (11th Cir., Jan. 19, 2022).

University City, Missouri, home to Washington University and the Loop, a buzzy restaurant and theater district bordering the City of St. Louis, recently survived a challenge to its ordinance prohibiting activities that obstructed sidewalks and walkways.  That victory followed litigation against an earlier ordinance that had prohibited a much broader, vaguer set of activities, like “tending to hinder or impede the free and uninterrupted passage of … pedestrians” and remaining stationary in a public sidewalk while engaged in speech or performance.  The original ordinance also prohibited musical performances on private property without a permit.

Diners enjoying an evening in the Loop, presumably without a permit. (Image in the public domain.)

After several street performers challenged the original ordinance, the city amended it to add Continue Reading St. Louis Suburb Wins Some, Loses Some in Challenge to Ordinance Regulating Sidewalk Obstructions and Street Performances

It was only a few weeks ago that the winter holidays were upon us, and with them came the usual seasonal festivities: ice skating, caroling, or perhaps a ride on a horse-drawn carriage.  But to animal rights activists in Frederick, Maryland, horse-drawn carriage rides are not a source of holiday cheer, but rather a form of animal cruelty. In Saltz v. City of Frederick, MD, the United States District Court for the District of Maryland recently addressed the First Amendment claims of one animal rights activist. 538 F. Supp. 3d 510 (D. Md. 2021).

Plaintiff Jason Saltz sued the City of Frederick and four police officers employed by the City under 42 U.S.C. § 1983, alleging that the defendants violated his First Amendment rights by denying him the ability to chant against horse-drawn carriages from a position located directly across the street from where carriage riders were waiting to embark on their rides.  He also claimed that his rights were infringed when the defendants prevented him from handing out leaflets and engaging in peaceful discussion with people waiting in line to ride.  Id. at 523.

The defendants had set up a designated “First Amendment Area” for Mr. Saltz and his fellow animal rights protestors, pursuant to an operations plan issued by the Frederick police department. Id. at 527–529. Continue Reading U.S. District Court in Maryland Upholds Animal Rights Protestor’s First Amendment Claims

One of the trickier aspects of First Amendment jurisprudence has always been deciding whether and when conduct receives constitutional protection.  Regulations that involve words or speech are easy enough.  But does the First Amendment protect the heap of garbage your neighbor piled in his front lawn to protest the city’s tardy trash collection?  (Probably, but the city can constitutionally regulate it anyway.)  Does the Constitution care if you want to direct a spotlight against your neighbor’s home to express your displeasure with his trash heap?  (Harder to say, but probably not.)  These and other questions continue to vex courts assessing the First Amendment’s reach.

Enter Donald Burns and his quest to build a massive midcentury mansion amidst minimally more modest mansions in Palm Beach, Florida.  (We’ve reported on his effort before.)  Palm Beach considers itself “a worldwide synonym for beauty, quality and value,” and to preserve that reputation, it applies architectural review to new homes.  Its standards observe that the “essential foundation of beauty in communities is harmony” and therefore prohibit structures that are too dissimilar from the surrounding buildings.

Dissatisfied with his 10,000 square-foot mansion, Burns approached Palm Beach about replacing it with a Continue Reading 11th Circuit: First Amendment Doesn’t Protect Florida Man’s Proposed Midcentury Mansion Because No One Can See It

On Monday, the U.S. Supreme Court granted the City of Austin, Texas’s petition for writ of certiorari in a case that may determine the legal fate of states’ and local governments’ efforts to restrict billboard advertising.

In the case, which we reported on previously, Austin denied permits to two billboard companies that were seeking to convert existing, static billboards to digital signs.  The billboard companies challenged, and the city removed to federal court.  The district court rejected the billboard companies’ challenge.  The Fifth Circuit Court of Appeals reversed, holding that the city’s sign code, which prohibited the erection of new off-premises advertising signs (i.e. signs that advertise goods and services that are not available on the property on which the sign is located) and further prohibited technological changes to nonconforming signs, violated the First Amendment.  The appeals court concluded that the regulation was content based.  Content based laws implicate the Supreme Court’s 2015 ruling in Reed v. Town of Gilbert, where the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect.  The appeals court’s holding in the City of Austin case was premised upon the fact that the off-premises advertising restriction related specifically to the content of a sign.  Under the sign code, if the sign’s message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited.  This, the court found, was impermissible. Continue Reading U.S. Supreme Court to Review Austin Billboard Case

Some things go together: funnel cakes, summer crowds, and street vendors, for instance.  The prospect of eternal damnation, on the other hand, tends to dampen the mood.  So it was that several Davenport, Iowa police officers escorted street preacher Cory Sessler out of the city’s long-running “Street Fest,” leaving him to condemn the throngs from afar.  Citing violations of his First Amendment rights to free speech and the free exercise of religion, he sued both the officers and city.  The district court denied his request for a preliminary injunction, and in March, the 8th Circuit upheld that decision.

Begin by recalling that, pre-pandemic, we used to gather in the tens of thousands to gnaw on turkey legs while browsing misshapen pottery and paintings of old barns.  Twenty thousand frequented Davenport’s annual Street Fest, which event organizers ran pursuant a city permit allowing them to take over selected streets for several days each July.

Sessler recognized these festival goers as wayward souls, and, bullhorn in hand, descended upon the event to remind them, “if you are involved in . . . sex out of marriage, homosexuality, drunkenness, night clubbing . . . you are destined for a burning hell.”  This naturally disrupted the nearby, fee-paying juggling and magic acts, and several officers proposed Sessler preach elsewhere.  Although Sessler moved to a new location, festival goers continued to find his messages disturbing.  Officers asked he preach across the street from the festival’s entrance.  Sessler agreed, and continued his work for a few hours.

Sessler eventually sued the city, claiming that he intended to preach his message again and that the city’s practices violated the First Amendment.  He also sought a preliminary injunction to prevent the city from enforcing its special events policy against him.  As applied, Sessler argued, the city’s special events policy prioritized paying vendors’ speech over his own.

The trial court denied Sessler’s requested injunction, and on appeal, the 8th Circuit did as well.  While the panel recognized Sessler’s complaints as reasonable at first blush, it concluded that Sessler’s First Amendment rights did not encompass the right to disrupt a permitted event.  The panel also concluded that Sessler had failed to demonstrate an irreparable harm because he had no intention of becoming a vendor at a permitted event and identified only vague plans to speak at future events—something he had been allowed to do from different public property during Street Fest.  Sessler therefore failed to demonstrate any entitlement to injunctive relief.

Sessler v. City of Davenport, Iowa, 990 F.3d 1150 (8th Cir. 2021)

In a recent case out of Fall River, Massachusetts, the state supreme court found a panhandling law so riddled with constitutional problems as to require entire invalidation.  Plaintiffs, each a homeless person who sometimes panhandled to meet their basic needs, sought declaratory and injunctive relief against a state law that criminalized signaling to a motor vehicle on a public way “for the purpose of solicitating any alms, contribution or subscription or selling of any merchandise,” but expressly permitted the same conduct undertaken for other purposes or by a nonprofit organization.  They alleged violations of free speech rights under the First Amendment and state constitution.

Continue Reading Massachusetts Supreme Court Strikes Down State Panhandling Law

Today, we depart from our regularly scheduled sign-litigation programming to explore a development in the realm of Anti-SLAPP statutes—laws protecting the public from “Strategic Lawsuits Against Public Participation.”

If you’re already familiar with Anti-SLAPP statutes, skip ahead to the next paragraph.  If you aren’t, here’s a primer:  SLAPP suits prototypically arise when more powerful organizations bring doubtful claims against citizens who’ve criticized them, knowing the costs of litigation alone will silence the critics.  Most, but not all, states have Anti-SLAPP laws, and they all layer protections on top of the First Amendment’s right to petition.  Generally, Anti-SLAPP statutes supply defendants with a special motion to dismiss that operates in two steps:  first, the defendant must show that they engaged in speech, debate, or petitioning activity on an issue of public interest, and second, if they succeed, then the plaintiff must prove that its lawsuit enjoys a reasonable shot at success.  If it can’t, the suit is dismissed, and the defendants receive an award of attorneys’ fees and costs.  It’s strong medicine for would-be plaintiffs.

That brings us to a recent Nevada Supreme Court case:  Kosor v. Olympia Companies, LLC.  Olympia, a real estate developer, sued Michael Kosor, Jr., a resident in one of its developments, for defamation after Mr. Kosor criticized Olympia in public meetings and online.  His complaints concerned Olympia’s control of the development’s HOA, which he likened to “foreign dictatorship.”

After Olympia filed sued, Mr. Kosor sought dismissal under Nevada’s Anti-SLAPP statute, and the trial court granted it.  The question before the Nevada Supreme Court was whether the Anti‑SLAPP statute applied at all.  The Court concluded it did, providing guidance that could easily be applied in other states.

First, the court concluded Mr. Kosor’s statements were “made in direct connection with an issue of public interest.”  Although the case concerned a dispute between a private citizen and a private company, the court reasoned that issues of HOA governance, as well as alleged malfeasance and mismanagement, could affect Mr. Kosor’s 3,000-member community and were therefore sufficiently public.

Second, and more interestingly, the court concluded that Mr. Kosor’s statements on Nextdoor.com satisfied statute’s requirement that the protected statements be made in a “place open to the public or in a public forum.”  (Nextdoor is neighborhood-based social media platform that launched in 2011 with the prediction, “When neighbors start talking, good things happen.”)  Private websites don’t always, or even often, qualify as a public forum, but the court viewed Nextdoor as a place for the public to exchange ideas and solicit discussion.  Thus, Mr. Kosor’s statements in that forum received the same protections under the statute as they would have if he’d made them at a city council meeting.

The court ultimately remanded the case to the district court to make findings as to whether Mr. Kosor had made his statement in good faith (another statutory requirement) but assumed the statute would otherwise apply.

The case provides a reminder to real estate developers and managers:  retaliating against nettlesome community members can come at a high price.

Kosor v. Olympia Companies, LLC, 478 P.3d 390 (Nev. 2020)

In a recent order on cross motions for summary judgment, a federal district court in Florida reiterated the high bar to upholding prior restraints on speech.  Plaintiffs Florida Beach Advertising and its owner and operator David Duvernay were cited on three occasions for violating a section of the City of Treasure Island’s code that requires any person to obtain a license before displaying a sign, banner, or advertisement.  They brought claims that the code violated the First Amendment—facially and as applied—and was preempted by state statute.  Although the plaintiffs challenged the entire code, the court found they had standing only to challenge the specific section they were cited for violating.  While the court quickly ruled for the City on the preemption challenge, it provided more robust analysis of the First Amendment claims.

Continue Reading District Court Strikes Down Florida City’s Sign License Requirement