ample alternative channels

Photo by Peter Kaminski, used pursuant to Creative Commons 2.0 license.

Fewer than six months after it was enacted as an “emergency” measure, a Cincinnati ordinance singling out billboards for special taxes has succumbed to a constitutional challenge. The ordinance, which met legal headwinds from the start, transparently aimed to make life miserable for the city’s billboard operators and consisted of two primary components: (1) a special tax on revenues from billboard advertising and (2) a hush provision preventing those operators from telling advertisers about the tax.  An Ohio judge wasted little time in finding both provisions unconstitutional and Continue Reading Cincinnati “Billboard Tax” Found Unconstitutional Just Months After Enactment

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. Continue Reading On Summary Judgment, District Court Upholds Lexington Newspaper-Distribution Law

The Ocean City boardwalk. Source: Bill Price III, from Wikimedia Commons.

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

Just in time for summer, the federal district court in Maryland has determined that the show must go on for a group of performance artists challenging an ordinance restricting public performance on the Ocean City boardwalk.  In Christ v. Ocean City, which we first reported on last year, a federal district judge concluded that Chapter 62, a new ordinance limiting performance to designated spaces at designated times, was mostly unconstitutional.

The Ocean City Boardwalk Task Force hoped Chapter 62 would survive scrutiny after a lengthy history of successful First Amendment challenges to prior regulations of speech on the boardwalk.  The Mayor and City Council charged the five-member Boardwalk Task Force to draft a new ordinance addressing the “issues that had plagued the Boardwalk” with respect to public safety, traffic congestion, and managing competing uses for limited space.  A cast of eleven street performers, including a puppeteer, stick balloon artist, magician, mime, portrait sketch artist, and musician, filed suit asserting that Chapter 62 violated the First Amendment.

Further background and details of the ordinance are detailed in our earlier post. Continue Reading A Mime, A Stick Balloon Artist, A Puppeteer, and Others Win in Ocean City Boardwalk Regulation Case

A Hustler Hollywood store in Fresno, California. Source: KSFN.

Last month, the Seventh Circuit Court of Appeals affirmed a district court’s denial of an adult business’s motion for preliminary injunction against Indianapolis.  The appeals court found that the business, Hustler Hollywood (HH), was unlikely to prevail on the merits of its as-applied First Amendment claim against the city.

In the case, HH entered into a ten-year lease on a property located in the city’s C-3 commercial zoning district.  It had a problem, though:  the C-3 district prohibits adult entertainment businesses, except with a variance.  When the plaintiff applied for sign and building permits with the city’s Department of Business and Neighborhood Services, it was flagged as potentially disallowed by the zoning code.  While HH submitted various materials to try to convince city staff that it was not an adult entertainment business as defined by the code, staff determined that the use was not permitted in the C-3 district.  The plaintiff appealed to the city’s zoning appeals board, which voted 5-0 to affirm staff’s determination.

Instead of appealing the board’s decision to the Indiana state courts as provided by state statute, HH filed a federal First Amendment claim.  It sought preliminary injunctive relief, but the district court denied the motion.

On appeal, the Seventh Circuit found that the city’s zoning scheme was constitutional under the secondary effects doctrine.  The court held that the city’s regulation of sexually-oriented businesses, which allowed adult entertainment businesses in other zone districts (just not in the C-3 district), was properly aimed at preventing negative secondary effects of such establishments.  The court further found that HH had several alternative avenues for communication, including in several other zoning districts around the city—including the zoning district directly across the street from Hustler Hollywood’s property.  To the extent HH believed that city staff erred in classifying its business as an adult entertainment business, the Seventh Circuit advised that HH should have brought a state court appeal, as the classification of the business is not of First Amendment concern.

The Seventh Circuit’s decision in the case is yet another indicator that the secondary effects doctrine remains alive and well following Supreme Court cases that have walked back a more liberal content neutrality standard.

HH-Indianapolis, LLC v. Consolidated City of Indianapolis and Cnty. of Marion, 889 F.3d 432 (7th Cir. 2018).

Earlier this month, the Sixth Circuit vacated a preliminary injunction preventing Lexington-Fayette Urban County Government (the “City”) from enforcing Ordinance 25/2017 (the “Ordinance”), which would regulate where unsolicited written materials may be delivered. Here is what you need to know about the procedural posture of the case:  The Ordinance would allow delivery of unsolicited written materials in six specific locations around a person’s residence or business but would prohibit driveway delivery.  Plaintiff, Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader, delivers The Community News free of charge to more than 100,000 households per week via driveway delivery.  In their motion for a preliminary injunction, Plaintiff claimed that the Ordinance would make their publication financially unfeasible and that it would violate the First Amendment if allowed to go into effect.  The lower court, after applying strict scrutiny analysis to the Ordinance, granted Plaintiff’s request for a preliminary injunction, finding Plaintiff was likely to succeed on the merits of its First Amendment claim.  The City timely appealed to the Sixth Circuit. Continue Reading Prohibition on Driveway Delivery of Unsolicited Materials Survives Intermediate Scrutiny of Sixth Circuit

Sam Shaw and one of his signs. Source: Indiana Public Media.

Last week, a federal district court in Indiana ruled that the enforcement of the City of Bedford’s sign ordinance would not be enjoined, finding that the sign code was content neutral, supported by a significant governmental interest, and narrowly tailored.  The court’s denial of the preliminary injunction indicates that the ordinance is likely to survive constitutional scrutiny. Continue Reading Indiana Town’s Sign Ordinance Withstands Motion for Preliminary Injunction

A tattered campaign sign on a D.C. lamppost. Source: Washington Times.

Yesterday, the Court of Appeals for the D.C. Circuit determined that Washington, D.C.’s regulation of event-based signage on public lampposts is not content based.  On its face, the court’s decision appears to conflict with one of the central holdings of the Supreme Court’s 2015 decision in Reed v. Town of Gilbert.  But the lengthy, well-written opinion made significant efforts to distinguish the case from Reed, and the D.C. Circuit’s decision potentially offers new avenues for local governments to control proliferations of signage.

Washington, D.C. has long regulated signage on public lampposts. Continue Reading In Apparent Departure From Reed, D.C. Circuit Says Event-Related Sign Restrictions Are Not Content-Based

In a case that we reported on last year, the Second Circuit Court of Appeals last week upheld a federal district court’s decision to dismiss a case involving an illuminated peace sign high above the sidewalks of New York City.  Bridget Vosse desired to display a lighted peace sign from her condominium in the Ansonia Building, but New York City prohibits lighted displays more than 40 feet above sidewalk level.  The Second Circuit previously held that New York City’s ban on lighted sign displays more than 40 feet above street level was content neutral.  On remand, the district court found that the regulation served a significant governmental interest in aesthetics, that the regulation was narrowly tailored to that interest, and that the regulation provided ample alternative channels for communication of the information.  The Second Circuit’s opinion affirmed for the same reasons contained in the district court decision.  Despite the plaintiff’s objection that the ban on illuminated signs was not narrowly tailored due to several exceptions, the Second Circuit found that New York City passed the narrow tailoring test because the city was only required to focus on its most pressing concern, not solve all problems at the same time.  With respect to ample alternative channels, the court found that the plaintiff’s reliance on the Supreme Court case of City of Ladue v. Gilleo was misplaced, since Ladue involved a complete ban on all residential signs, while the New York City ban applied only to lighted signs placed at a certain height.

Vosse v. City of New York, ___ Fed. App’x. ___, 2016 WL 6037372 (2d Cir. Oct. 14, 2016).