In a midnight per curiam opinion that generated several concurring and dissenting opinions, the Supreme Court recently enjoined the state of New York from enforcing certain COVID-19 restrictions against religious institutions.  Although the injunction is limited to the pendency of the underlying appeal in the Second Circuit, it represents the Court’s most thorough treatment of pandemic-related restrictions on religious exercise to date.  It also marks an about-face from Chief Justice Roberts’  solo concurrence to the Court’s denial of a similar application for injunctive relief earlier this year.  In May, the Chief Justice deferred to the coordinate branches in dealing with the pandemic.  Now, however, the full Court has grown more skeptical of pandemic restrictions affecting religious exercise, and lower courts will probably follow suit.

The facts are as follows:  New York has adopted a tiered system of pandemic restrictions.  The state applies those restrictions to a number of geographic districts based on the severity of the pandemic in those districts.  Restrictions for a “red zone” are more severe than those for a “yellow zone” and so on.  New York’s regulations also distinguish between “essential” and non-essential business, and further identify religious institutions among the various uses regulated.  Religious institutions are not an “essential” use, though they receive preferential treatment relative to other large, indoor gatherings.  In “red zones” no more than ten people may attend each religious service.  In “orange zones,” the regulations cap attendance at twenty-five, irrespective of building capacity.  “Essential” businesses, which include acupuncture clinics and liquor stores, face no such capacity restrictions.

The per curiam opinion (which legal writing analysts believe was authored by Continue Reading Supreme Court Sides with Religious Institutions Against New York Restrictions on Worship Services

Earlier this year, the federal Court of Appeals for the Eleventh Circuit upheld a district court’s denial of a preliminary injunction requested by a street preacher who alleged that a county government had infringed upon his First Amendment rights.

Adam LaCroix is a street preacher who discusses “Biblical principles of sexual morality” outside public venues in Lee County, Florida, including JetBlue Park, where the Boston Red Sox train.  The venue is owned by the county government, but leased to the Red Sox.  The team in turn allows special events, such as concerts, to occur at the facility.  LaCroix attempted to preach during one such event, in which only concert patrons were allowed to enter the property, and was told that he could not do so.

LaCroix then filed suit in federal district court on First Amendment grounds, claiming that the ordinance was content based and that the government left police officers with unbridled discretion.  He sought a preliminary injunction, which was denied on the grounds that LaCroix lacked standing and that he was not entitled to a preliminary injunction.  On appeal, the Eleventh Circuit agreed with the district court’s analysis.  The Eleventh Circuit concluded that LaCroix failed to specifically identify where his future free speech activity would be located, and thus did not establish a concrete injury in fact.  Because the court concluded that the plaintiff failed to show that he was presently or would be subject to a permitting ordinance for this type of speech, the appeals court confirmed that the case should be dismissed.

LaCroix v. Lee County, 819 Fed. Appx. 839 (11th Cir. 2020).

In a victory for plaintiff B&G Opa Holdings’s “Klub 24,” a federal district court recently struck down an ordinance used to shutter a strip club that briefly opened in a suburb north of Miami.  Three months after an Opa-locka, Florida licensing clerk stamped “approve” on B&G’s application for a “playhouse,” the city returned to shut down the operation.  Opa-locka explained that it had failed to run that use through its adult-entertainment special use permitting scheme and that Klub 24 was therefore operating without a license.

Klub 24’s Chained Doors Following City Shut-Down. Source: Miami Times

Litigation followed.  Adopting the magistrate’s recommendation, the district court granted summary judgment on B&G’s claims that the city’s ordinance unconstitutionally prohibited all adult-entertainment uses and also gave the city too much discretion to prohibit such uses.

In what appears to have been some administrative bungling—and perhaps some misdirection from B&G—the city first allowed Klub 24 as an “other club” in January 2018.  When it became clear that Klub 24 was in fact a Continue Reading Florida City’s Special Use Restriction on Strip Clubs Held Unconstitutional

A billboard company’s challenge to the Troy, Michigan sign variance standards–which we reported on three years ago–has now resulted in an appellate decision that has the potential to greatly change commercial speech regulation as we know it.  Two weeks ago, the Sixth Circuit Court of Appeals ruled that the city’s sign code was an unconstitutional prior restraint and was content-based in its regulation of temporary signs.  The most remarkable aspect of the decision, however, was the court’s conclusion that any content-based commercial sign regulation should now be subjected to strict scrutiny analysis, which is nearly always fatal to a sign regulation.

The Troy sign ordinance allows property owners to post one ground sign of up to 12 feet in height and not exceeding 100 square feet, plus one additional ground sign, so long as the second sign is set back 200 feet from a right-of-way, is no more than 25 feet tall, does not exceed 300 square feet in area, and is not less than 1,000 feet from any other sign exceeding 100 square feet.  International Outdoor sought to install 672-square-foot, double-sided advertising signs in Troy that did not meet the foregoing requirements and sought a variance.  The criteria used by the city’s appeals board were threefold:  “(1) the variance would not be contrary to the public interest or general purpose and intent of this Chapter; and (2) the variance does not adversely affect properties in the immediate vicinity of the proposed sign; and (3) the petitioner has a hardship or practical difficulty resulting from the unusual characteristics of the property that precludes reasonable use of the property.”  The board denied the variance for failure to meet the criteria. Continue Reading In Billboard Company’s Challenge to a Michigan Sign Ordinance, the Sixth Circuit Finds That Content-Based Commercial Speech Regulations Are Now Subject to Strict Scrutiny

D.C.’s Black Lives Matter street mural. Source: CNN.

Late last month, a federal district court in Washington, D.C. dismissed First Amendment and other constitutional claims filed against the District by a non-Black Christian group pertaining to the now-famous “Black Lives Matter” mural painted on 16th Street.

Following widespread protests in U.S. cities in response to the death of George Floyd, a Black man, at the hands of white police officers in Minneapolis—and shortly after federal law enforcement officials cleared protesters in Lafayette Park with tear gas to allow for a photo opportunity for President Trump—D.C. Mayor Muriel Bowser directed the D.C. Department of Public Works to paint the words “Black Lives Matter” in large yellow letters on 16th Street.  The mural, which is in close proximity to the White House, was widely acknowledged as expressing support for protesters and the Black community and in protest of actions taken by the President. Continue Reading Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural

A housing encampment along Ben Franklin Parkway in Philadelphia. Source: Philly Voice.

Late last month, a district court in Pennsylvania entered an order denying preliminary injunctive relief in a First Amendment case filed by a group of homeless advocates seeking to raise awareness of homelessness in Philadelphia.

The case involves three homeless encampments at locations on city- and state-owned properties near Philadelphia’s Center City.  The encampments started in the summer of 2020, and over 200 people reside in them.  The plaintiffs in the case alleged that the encampments are protests relating to city policies toward the homeless.  In July, the city provided notice that it would sweep and remove the encampments on or before August 18.  On August 17, the plaintiffs filed their claim in federal district court and moved for a temporary restraining order and preliminary injunction. Continue Reading District Court Denies Preliminary Injunction in Philadelphia Homeless Encampment Case

Panhandlers on a street median in Oklahoma City. Source: KGOU.

Last week, the federal Court of Appeals for the Tenth Circuit ruled that an Oklahoma City law prohibiting people from remaining on street medians violated the First Amendment.  The law was challenged by a diverse group, including panhandlers, minority political parties, and even joggers.

In 2015, apparently in response to concerns regarding panhandling, Oklahoma City passed a law that prohibited individuals from sitting, standing, or remaining in street medians throughout the city.  Although the law was motivated by concerns regarding panhandlers, the city sought to justify the law with the presentation of safety statistics regarding pedestrians in street medians.  A group of plaintiffs sued the city, and it revised the ordinance in 2017 to limit the law’s coverage to medians along streets with speed limits of 40 miles per hour or greater.  Again, the city justified its amended law with safety information. Continue Reading Tenth Circuit Strikes Down Oklahoma City Median Restrictions

One of the plaintiffs’ billboards in Austin, Texas. Source: Reagan National Advertising.

Last week, the U.S. Fifth Circuit Court of Appeals issued a ruling that the City of Austin, Texas’s sign ordinance was content based and unconstitutional due to the fact it impermissibly distinguished between on-premises and off-premises signs.  The Fifth Circuit’s ruling follows a similar ruling by the Sixth Circuit in a challenge to a Tennessee state law governing billboards, and sets up the possibility of further confusion in the area of billboard regulation.

In the Austin case, two billboard companies sought permits to convert existing billboards to digital signs.  The city denied the permits on the ground that its sign code prohibits new off-premises signs (i.e. signs that advertise business or services not located on the property on which the sign is located) and that conversion of existing billboards to digital faces would change the technology of a nonconforming sign in violation of the code.  The billboard companies challenged the denial in state court.  The city removed the case to federal court.  During the pendency of the litigation, the city amended its sign code to allow the substitution of noncommercial messages on any commercial sign in the city.  Following a bench trial, the district court determined that the sign code was content neutral and denied the billboard companies’ request for declaratory judgment. Continue Reading Austin, Texas Sign Ordinance Declared Content Based, Unconstitutional

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

In late May, the U.S. Supreme Court denied a Church’s application for injunctive relief from California’s temporary restrictions on religious gatherings in South Bay United Pentecostal Church v. Newsom. Governor Newsom’s executive order, which parallels mandates issued in several states since March, limited both religious and secular public gatherings in an attempt to curb the spread of COVID-19.  The executive order also allowed certain businesses to remain open–for example, grocery stores and hardware stores.

The order temporarily capped worship service attendance at 25% of building capacity or 100 attendees, whichever is lower. The applicants in South Bay filed suit under the Free Exercise Clause of the First Amendment, contending that secular activities impacted by the order, such as retail shopping or on-site office work, were afforded more generous occupancy caps than places of worship, and that the discrepancy amounted to unjustified and unconstitutional religious discrimination.  The Ninth Circuit Court of Appeals had previously denied the church’s application for an injunction pending appeal, after the district court in the case denied the plaintiff’s motion for a temporary restraining order.  The church sought a temporary injunction from the Supreme Court, which would have the effect of staying the executive order while the case was being litigated. Continue Reading Supreme Court Denies Church’s Application for Injunctive Relief in First Amendment Challenge to COVID-19 Restrictions

A billboard for Lion’s Den (not a truck trailer). Source: i70signshow.com.

In late April, in a case filed by an adult bookstore challenging the application of Kentucky’s Billboard Act to one of its advertisements, a federal judge of the Western District of Kentucky found the entire Billboard Act to violate the First Amendment.

Lion’s Den is a chain of adult “superstores” with locations along major highways throughout the Midwestern United States.  At one particular location along I-65 in Kentucky, Lion’s Den affixed one of its billboards to the side of a truck trailer, such that it was visible from the highway.  The Kentucky transportation department ordered Lion’s Den to remove the sign, on the grounds that it was not secured to the ground and located on a mobile structure and because the store lacked a permit for the billboard.  The basis for the state’s order was that the Kentucky Billboard Act prohibited the sign.  Under the statute, however, the regulations in question were only applied to off-premises signs. Continue Reading Federal Judge Rules Kentucky’s Billboard Act Unconstitutional In Its Entirety