This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Two weeks ago, a federal court in California dismissed a plaintiff’s claim that casino gaming was a First Amendment-protected activity.

Wared Alfarah, the plaintiff in this case, ran a retail business selling e-cigarette products.  To encourage customers to linger around his store, Mr. Alfarah offered pay-to-play games where the player tried to stop a computer cursor on a specific bar in a series of rotating bars.  If done correctly, the player won a random amount of prize money.  Although the location of the bars was randomized, the player’s “skill” allegedly determined his success. Continue Reading Federal Court: Gaming is Not Protected Speech

Above, an advertisement that Women’s Health Link wished to place on the side of Citilink buses in Fort Wayne. Source: Alliance Defending Freedom.

In a case that we reported on earlier this year, last month, the Seventh Circuit Court of Appeals reversed an Indiana district court’s grant of summary judgment to the Fort Wayne public transit system, Citilink, holding that the transit company’s rejection of an advertisement for a healthcare organization was unreasonable in light of Citilink’s advertising policy. Continue Reading Seventh Circuit Finds Fort Wayne Bus Advertising Policy Unreasonable

Paula Soto speaking before the Cambridge City Council. Source: Cambridge Day.

This post was authored by Otten Johnson summer law clerk Alex Gano.  Alex is a rising third-year law student at the University of Colorado Law School.

Last week, a federal magistrate judge in Boston denied a plaintiff’s motion for summary judgment against the City of Cambridge, Massachusetts, in a case involving a municipal ordinance and state law that (might) prohibit non-commercial leafletting of parked cars. The court held that the plaintiff’s case against the City was moot because the City had recently amended its ordinance to allow non-commercial leafletting on private property.  The court also considered and rejected the City’s motion to join the Commonwealth of Massachusetts to the case citing the Eleventh Amendment.  The order in Soto v. City of Cambridge acknowledges a circuit split over the constitutionality of laws banning non-commercial leafletting, but the court ultimately declined to weigh in on the controversy. Continue Reading Federal Court in Massachusetts Rejects First Amendment Leafletting Challenge

It’s been a little while since we’ve done a news update, but here are some of the good stories we’ve been tracking over the past several weeks:

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

A Tennessee case is inquiring into the “similarly situated” requirement for Equal Protection claims and will likely decide the constitutionality of the Tennessee Billboard Act (TBA).  While the outcome of the case is far from finalized, Thomas v. Schroer, which stems from the denial of the plaintiff’s sign application, has already raised some interesting questions about the reach of the First Amendment under Reed v. Town of Gilbert. Continue Reading How Similar is “Similarly Situated”? And the Constitutionality of the Tennessee Billboard Act

As organizers here in Denver make final preparations for PrideFest this weekend, we report on a case stemming from a similar event scheduled in Syracuse, New York.

A plaintiff who had been prevented from protesting Pride Week in Syracuse in both 2014 and 2015 filed a motion in federal court seeking a preliminary injunction to enjoin the city from restricting the plaintiff’s ability to demonstrate at the upcoming Pride Week festival.  In 2014 and 2015, the plaintiff positioned himself on the sidewalk immediately adjacent to the festival’s entrance with a banner and a voice amplifier, and attempted to “explain[] [his] beliefs to those nearby.”  However, each year, city police officers approached the plaintiff and asked him to move across the street from the festival entrance.  According to video footage taken by the plaintiff, the police officer who approached the plaintiff in 2014 justified his request by stating that the festival organizers’ permit entitled them to exclusive use of the sidewalk area immediately adjacent to the festival entrance.  The police officer who approached the plaintiff in 2015 explained that the festival organizers were entitled to a 40-foot buffer on the area surrounding the festival entrance. Continue Reading Court Grants Preliminary Injunction in Connection with Syracuse Pride Week Festivities; Buffer Zone Not a Narrowly Tailored Restriction on Speech

This post was authored by Otten Johnson summer law clerk Alex Gano.  Alex is a rising third-year law student at the University of Colorado Law School.

On June 1, a three-judge panel of the U.S. Court of Appeals for the Third Circuit vacated a lower federal court’s dismissal of a First Amendment challenge to a City of Pittsburgh ordinance that created a fifteen-foot “buffer zone” around entrances to abortion clinics. The lower court dismissed the challenge filed by five self-described “sidewalk counselors” based on a 2009 opinion by the Third Circuit that upheld the same ordinance. Writing for the Court, Judge Kent Jordan interpreted the Supreme Court’s decision in McCullen v. Coakley to compel a more vigorous “narrow-tailoring” analysis to burdens on speech. Judge Jordan’s opinion also implies that McCullen will have the effect of prolonging litigation over buffer zone ordinances, which have become a cutting edge of First Amendment jurisprudence in recent years. Continue Reading Third Circuit Revives Challenge to Pittsburgh’s Abortion Clinic “Buffer Zone” Ordinance, Portends of More Litigation to Come

Abortion protesters outside of a Planned Parenthood clinic in Portland, Maine. Source: Bangor Daily News.

This post was authored by Otten Johnson summer law clerk Alex Gano.  Alex is a rising third-year law student at the University of Colorado Law School.

On May 23, a federal judge in Maine issued a preliminary injunction against enforcement of a portion of that State’s Civil Rights Act that prohibited “making noise” with the intention of either “jeopardize[ing] the health of persons receiving health services” or “interfer[ing] with the safe and effective delivery” of health services. The ruling in March v. Mills—together with another opinion issued by a federal appellate court in Pennsylvania nine days later—mark the latest chapter in a twenty-year jurisprudential saga on the constitutionality of speech restrictions around abortion clinics. Continue Reading Federal Judge Enjoins Enforcement of Maine “Noise Provision” as Not Content-Neutral

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Herson v. City of Richmond was all set on October 21, 2014, when the Ninth Circuit Court of Appeals issued its first opinion on the case, affirming the dismissal of the plaintiff’s First Amendment claims.  However, after the United States Supreme Court decided Reed v. Town of Gilbert, the Supreme Court vacated the original Ninth Circuit Herson decision so that the case could be reconsidered under Reed.  A year and a half later on January 22, 2016, the Ninth Circuit again issued an opinion on Herson v. City of Richmond.  While the Supreme Court thought things had changed due to Reed, the Ninth Circuit apparently did not as this second opinion is word-for-word identical to the first. Continue Reading A Pre-Reed Case Decided in a Very Similar Post-Reed World

In a case that we reported on back in March, the California Supreme Court denied to review a state appellate court decision upholding Los Angeles’s ban on off-premises billboards.  The billboard company that was the plaintiff in the case sought to have the California courts interpret the state’s constitution to prohibit the on-premises/off-premises distinction that is commonly found in municipal sign codes.  California’s high court denied certiorari after the billboard company filed a late petition.  The denial of the petition means that California cities can continue to rely on off-premises advertising bans to control billboards.

Read more here.