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  In an unpublished opinion, the circuit court concluded that, although such a program implicated free speech concerns, it did not compel any particular speech.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.
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Earlier this month, the Sixth Circuit Court of Appeals struck down Tennessee’s outdoor advertising statute, finding it to be content-based in violation of the First Amendment.  The court’s ruling affirms an earlier ruling by a federal district court.

A billboard owner challenged the Tennessee Billboard Act after he posted a sign supporting the 2012 U.S. Olympic Team.  The sign was located on vacant land, and the owner had failed to secure a permit from the Tennessee Department of Transportation for the billboard, as required by the law.  The transportation department’s rationale for denying the permit was that it was not entitled to the law’s exception to permitting for on-premises signs, which the law generally defined as relating to the premises on which the sign was posted.  While the TBA was generally intended to apply exclusively to commercial off-premises speech, the state’s denial of a permit to the plaintiff appeared to apply to noncommercial speech, i.e., the owner’s support for the Olympic team.
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One of the signs at issue in the case. Source: Riverfront Times.

In a case that we reported on around this time last year, late last month, the Eighth Circuit Court of Appeals reversed a federal district court’s ruling denying a motion for preliminary injunction against Bel-Nor, Missouri’s “one sign” rule.  The Eighth Circuit’s ruling means that the city will be temporary enjoined from enforcing the law.

The facts of the case are discussed in our earlier post.

The court of appeals had no problem finding that the city’s sign regulation violated the First Amendment.  The law allows just one freestanding yard sign, as well as one flag.  The definition of “flag” in the city’s code indicates that the object must be a “symbol of a government or institution,” thus drawing a distinction based on the message a speaker conveys.  Applying the Supreme Court’s holding in Reed v. Town of Gilbert, the court found the regulation was content based.  The court then found that the code was not narrowly tailored so as to pass muster under strict scrutiny.
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Under Lexington’s ordinance, newspapers cannot be delivered to residential driveways. Image source: CBS San Francisco.

In a case that we previously reported on last winter, a federal district court in Kentucky ruled last month that Lexington’s law restricting the locations where newspapers may be delivered meets intermediate scrutiny under the First Amendment.  Lexington’s ordinance requires that newspapers be delivered on porches, attached to doors, placed in mail slots, left in distribution boxes, or personally delivered.

The facts of the case can be found in our January 2018 post on the case of Lexington H-L Services, Inc. v. Lexington-Fayette Urban County Government.  After the Sixth Circuit Court of Appeals reversed the district court’s entry of a preliminary injunction in the case, the parties proceeded to summary judgment briefing on the understanding that there were no genuine disputes as to material fact.

In ruling on cross-motions for summary judgment, the court first found that the restriction on the locations where newspaper can be delivered is content neutral:  the regulation is not dependent upon the content of the newspaper, but simply identifies the locations on private property where a newspaper may be delivered.  Moreover, the court observed that the city’s goals in reducing litter, visual blight, and public safety were content neutral in purpose.  The court went on to find that the restrictions on delivery were narrowly tailored to these goals.
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Wagner’s sign in Garfield Heights. Source: Cleveland Plain Dealer.

Earlier this month, the Sixth Circuit Court of Appeals upheld an Ohio district court’s decision to permanently enjoin the enforcement of the City of Garfield Heights’s sign code.  The court found that the sign code’s restriction of “political signs” to six square feet was content based and unconstitutional.

The case began in September 2011, when local resident Frank Wagner wanted to protest a local councilwoman’s support of traffic cameras and a waste disposal tax.  Wagner placed a sixteen-square foot sign in his front yard that called out the councilwoman. 
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