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 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

Our friend and colleague, Professor Daniel R. Mandelker of Washington University in St. Louis, has published a new article, titled Billboards, Signs, Free Speech, and the First Amendment.  The article is featured in the Real Property, Trust, and Estate Law Journal.  The article traces the history of billboard regulation and the eventual application of the First Amendment to commercial speech, as well as the trajectory of court decisions in recent years in light of the Supreme Court’s decision in Reed v. Town of Gilbert.  As always, Professor Mandelker’s contributions to this area of the law are greatly appreciated.  As has been well-documented on this blog, free speech law pertaining to commercial billboards remains in flux, and we look forward to continuing to inform our readers of legal developments in this area.

A federal district court in Illinois recently denied a church’s preliminary injunction motion and dismissed its suit alleging that a zoning ordinance violates RLUIPA and the Equal Protection Clause.  In all of its zoning districts, the Village of Homewood allows places of worship only as special uses.  Because non-religious assembly uses are permitted by right in some districts, the Word Seed Church claimed that the ordinance substantially restricts its ability to obtain property in Homewood.  Although the Church never sought the required special use permit, it filed suit alleging that the ordinance violates the equal terms, unreasonable limitations, and substantial burden provisions of RLUIPA and the Equal Protection Clause.  The Church also moved for a preliminary injunction against enforcement.

Continue Reading Court Dismisses RLUIPA and Equal Protection Clause Case for Lack of Standing

Recent litigation against the city of Fort Worth has once again confirmed that localities should steer clear of content-based sign codes and free-wheeling approval processes.  Dallas’s neighbor learned that lesson after a federal district court struck down portions of its regulations, concluding they were both content-based and a prior restraint, and also unable to survive strict scrutiny.

The case arose from plaintiff Brookes Baker’s efforts to place crosses in the city right-of-way alongside an abortion clinic. Continue Reading Federal District Court Strikes Down Fort Worth’s Prohibition and Exemption Scheme for Materials in the Right-of-Way

In November, the court sent parts of a case about a seemingly-unwelcome religious center back for district court reconsideration. The Thai Meditation Association of Alabama, a Buddhist organization, had applied for zoning permits to construct a meditation and retreat center in a residential area of Mobile. The neighborhood expressed fierce opposition to the construction, and the Planning Commission denied the application. Although the Planning Commission—and the City Council on appeal—cited concerns about site access, traffic, and compatibility with the neighborhood, the Association believed the denial was rooted in religious animosity.

Continue Reading Eleventh Circuit Remands Some RLUIPA and Related Claims in Buddhist Center Zoning Permit Case

In a case of first impression within the Sixth Circuit, a district court held that a city’s interest in protecting the exercise of a permit holder’s First Amendment rights is—at least in some circumstances—a significant interest supporting the content-neutral regulation of speech.

In 2018, Johnson City, Tennessee granted a Special Events Permit to LGBTQ organization TriPride to hold a parade and festival in a city park. At the festival, city officers enforcing the Special Events Policy moved religious protesters from blocking the park’s entrance. The protesters filed suit, claiming that this allegedly arbitrary enforcement violated their rights to free speech and free exercise of religion.

Continue Reading District Court Upholds Tennessee City’s Enforcement of Policy Against Special Event Interference

Earlier this month, the court held that the City of Norman, Oklahoma may enforce a disturbing-the-peace ordinance against anti-abortion protesters while their litigation claiming it violates the First Amendment is pending.  The ordinance prohibits “disturb[ing] the peace of another . . . by [p]laying or creating loud or unusual sounds.”  City police had cited and threatened to cite the protesters for violation when their amplified speech on sidewalks outside an abortion clinic could be heard inside the clinic.  The protesters claimed that the ordinance violates their rights to free speech and free exercise of religion, facially and as applied, but the district court denied their request for a preliminary injunction.

Continue Reading Tenth Circuit Upholds Denial of Preliminary Injunction Against Enforcement of Disturbing-the-Peace Ordinance

As a company that sells advertising space on benches in public areas, Bench Billboard Company has a long and storied litigation history against municipalities in Ohio and Kentucky.  In this most recent iteration, the BBC challenged the constitutionality of Colerain Township’s (a Cincinnati suburb) restriction on signage in its right of way after the Township attempted to

A bench advertisement. Source: Wikimedia Commons, Orin Zebast

remove BBC’s signs.


Noting that both the Ohio Appeals Court and the Sixth Circuit had answered virtually identical questions in two earlier BBC cases, the panel dispatched with the challenge in short order.  Quoting a 2016 decision, the panel concluded that Colerain held a substantial interest in maintaining its right-of-way, restrictions on signage directly related to those purposes, and BBC enjoyed numerous other avenues for displaying its signage.  The court also made the standard recitations about governments’ ability to regulate commercial signage in the interest of preserving aesthetics, addressing traffic safety, and reducing visual clutter.

BBC also raised concerns regarding Colerain’s restrictions regarding signage on private property, but the court made quick work of these too.  Somewhat curiously, the panel did not follow the standard Central Hudson or intermediate scrutiny rubric for commercial or content-neutral restrictions.  Instead, it upheld the township’s private property signage restrictions as applied to BBC, reasoning that Colerain had provided ample evidence of the traffic and aesthetic concerns it sought to regulate and its restrictions therefore bore a substantial relationship to health, safety, and welfare.

Colerain Twp. Bd. of Trustees v. Bench Billboard Co., 2020-Ohio-4684

Simi Valley, California, like many cities, bans mobile advertising displays on public streets.  It also, however, exempts certain authorized vehicles from the general ban.  The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.

A mobile billboard roaming the streets. Source: Wikimedia Commons, SammySosaa

Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation.  Following that conclusion, it returned the case to the district court for further proceedings to determine whether Continue Reading Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny