New Jersey bars may now post signs this like this one. Source: steezdesign.com.

Last month, a federal court ruled that New Jersey’s prohibition on “BYOB” advertising—that is, advertising by drinking and entertainment establishments allowing patrons to bring their own alcoholic beverages—violated the First Amendment.  As a result of the court’s ruling, Garden State restaurants will now be allowed to post advertisements encouraging their patrons to bring their own wine and beer.

New Jersey law allowed patrons to bring wine or beer onto the premises of establishments that are not licensed to serve alcoholic beverages, but prohibited such establishments from advertising that it was permissible to do so.  An Atlantic City nightclub, Stiletto, filed suit in federal district court against Atlantic City and the state, seeking to invalidate the state law.  Stiletto wished to advertise that patrons could bring their own beverages to the nightclub. Continue Reading New Jersey Prohibition On “BYOB” Advertising Found Unconstitutional

The U.S. District Court for the Southern District of New York recently declared unconstitutional New York City’s ban on advertising in vehicles other than exempted taxis.  Under the city’s program, medallion and certain other taxis could display advertising, including seat-back television content and advertising, but other for-hire vehicles (“FHVs”), like those used for Lyft and Uber rideshare services could not do the same. Vugo, Inc., a seat-back video advertising company, challenged New York City’s regulations on the ground that their distinction between taxis and other FHVs violated the First Amendment.  On the parties’ cross motions for summary judgment, the district court agreed.

The court reviewed the regulations under Central Hudson’s four-part commercial speech test.  Under that test, if the speech regulated is neither false nor unlawful (a component not at issue in this case) and the government can show a substantial interest to justify its regulation, the court then considers whether regulation directly advances the government’s interest and whether it is narrowly drawn and not more extensive than necessary to serve the interest.

On the second prong, the court agreed with New York City that its interest in regulating vehicle advertisements as annoyances to passengers was substantial—but beyond that point the city’s arguments fared worse.  Most problematic for the court was the city’s justification for allowing advertising in taxis but not other FHVs: that the advertisements allowed operators to offset the cost of expensive ride- and fare-monitoring equipment the city required taxis to maintain.  That justification for the distinction shared no relationship to the city’s concerns about passenger annoyances, however.  That is, the advertisements were equally annoying irrespective of whether they helped offset other costs.  And because the taxi exemption still allowed advertising for more than 370,000 daily trips, the court doubted that the distinction between taxis and FHVs advanced the city’s other stated interest in aesthetics.

The court also found the exemption lacking with respect to Central Hudson’s fourth prong.  Though it noted that the commercial speech test does not require cities to employ the least restrictive means to achieve their goals, it concluded New York City’s outright prohibition on advertising in FHV was far too broad.

The court’s suggested alternative: just let passengers turn the ads off.

View the complete decision here: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2015cv08253/448867/63/

Last week, a federal district court in Nevada ruled on the City of Reno’s motion to dismiss several claims brought against it by a billboard company and landowner relating to the placement of off-premises billboards in the city.

The plaintiffs in the case are a billboard company called Strict Scrutiny Media (which perhaps implies the type of judicial review that the company wanted, but did not get, in this case) and the Independent Order of Odd Fellows Reno Lodge #14.  SSM obtained billboard leases at three sites owned by the Oddfellows, constructed signs on all three locations, and obtained permits for the construction of one of the signs.  In late 2016, the city informed SSM and Oddfellows that the permitted sign’s permit was invalid due to the fact that it was issued to a different sign operator, and also informed Oddfellows that two other signs that had been installed by SSM and Oddfellows were constructed without a permit in violation of the city’s code.  Oddfellows and SSM then challenged the city’s action, and also challenged the city’s ban on the erection of new, permanent off-premises signs and the city’s exemptions to permit requirements for certain temporary or permanent on-premises signs. Continue Reading Court Allows First Amendment Claims to Move Forward in Reno Sign Code Case

Last week, the Ninth Circuit Court of Appeals upheld San Francisco’s prohibition on new off-site commercial billboards, rejecting a First Amendment claim to the contrary made by a billboard company.  The case reaffirms the distinction between commercial and noncommercial speech regulation under the First Amendment, and limits the scope of Reed v. Town of Gilbert.

Since 2002, San Francisco has prohibited the erection of new off-site billboards—which advertise products or services not available on the property where the billboards are located—while allowing new on-site business signs.  The prohibition amounts to an effective ban on new billboards in San Francisco, although billboards that predated the ban are allowed to remain in place.  The plaintiff, Contest Promotions, LLC, is a billboard company that challenged San Francisco’s regulation under the First Amendment.  The district court for the Northern District of California granted a motion to dismiss filed by the City and County of San Francisco. Continue Reading Ninth Circuit Allows San Francisco’s Billboard Ban to Stand

Day laborers in Oyster Bay. Source: New York Times.

On Tuesday, the Second Circuit Court of Appeals ruled that the Town of Oyster Bay, New York’s prohibition on motor vehicle solicitation of employment violated the First Amendment.  The appellate court’s ruling affirms an earlier district court ruling that found similarly.  The plaintiffs in the case were two groups that advocate for the interests of day laborers.

Oyster Bay enacted an ordinance in 2009 that read, in relevant part, “It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.”  Oyster Bay’s ordinance was ostensibly an effort to curb day laborer solicitation. Continue Reading Second Circuit Affirms District Court Injunction Against Oyster Bay Solicitation Ordinance

Dairy cows at Ocheesee Creamery. Source: Institute for Justice.

Some questions probably never need to be answered, and the universe of such questions might include the question: “what exactly is skim milk?” In a decision that sheds light on the current state of the commercial speech doctrine—and which may provide some helpful guidance for our local government readers—the Eleventh Circuit additionally provides some good analysis of low-fat dairy products. Continue Reading What is Skim Milk? Eleventh Circuit Provides Some Insight in Commercial Speech Decision

In a case that we reported on last year, a federal district court in California granted summary judgment in favor of the City of San Diego in a case involving art murals.

Some of the facts of the case are reported in our prior post.  The San Diego sign code exempts from permitting “[p]ainted graphics that are murals, mosaics, or any type of graphic arts that are painted on a wall or fence and do not contain copy, advertising symbols, lettering, trademarks, or other references to the premises, products or services that are provided on the premises where the graphics are located or any other premises.”  Otherwise, all signs visible from the right of way are required to obtain a permit, and signs on city-controlled property must obtain a permit as well.  Messages on city-controlled property are limited to on-premises speech and “public interest” messages.  As we previously noted, the plaintiff, a mural company, was granted approval to place two wall murals in San Diego, but received a violation for the placement of a third mural.  The plaintiff believes that the annual Comic-Con event was given special treatment by the city, because certain signs posted around the city during the event were not issued citations. Continue Reading San Diego’s Motion for Summary Judgment Granted in Mural Case

Last week, the U.S. District Court for the District of Montana issued an order granting the City of Missoula’s motion for summary judgment in a case challenging the constitutionality of its sign code.  The court found that the city’s code was content neutral as applied to the plaintiff, and that the code satisfied the Central Hudson intermediate scrutiny test for commercial speech regulations.

Carwerks, a used car dealership in Missoula, challenged the city’s sign code after the city issued several citations to Carwerks for placing helium balloons on its vehicles in violation of a code provision that prohibited banners, flags, pennants, streamers, spinners, and “other types of wind signs.”  Carwerks claimed that the sign code was content based and failed the Central Hudson test.  Carwerks took issue with two aspects of the ordinance:  first, that the code distinguished between commercial and noncommercial speech; and second, that the code’s definition of “sign” exempted window displays and national flags. Continue Reading Missoula, Montana Sign Code Withstands First Amendment Challenge

Since 2015, San Francisco, California, has attempted to regulate the sharing economy by allowing short-term rentals under certain conditions.  These conditions include requirements that the host register the premises with the city, and also that the host demonstrate proof of liability insurance, compliance with local codes, and payment of taxes.  The city later revised the ordinance to prohibit listing of short-term rentals on sites such as Airbnb without prior city registration.  The latter prohibition would impose potential liability on Airbnb, HomeAway, and other short-term rental websites that post listings without prior city registration.

In June 2016, Airbnb and HomeAway filed a lawsuit against San Francisco.  The city responded in August 2016 Continue Reading Court Denies Preliminary Injunction in San Francisco Airbnb Case

Late last month, a federal district court in Louisiana upheld the City of Shreveport’s ban on door-to-door commercial solicitation, finding that the ban was supported by a substantial governmental interest in community safety, and further finding that the ban directly advanced the government’s interest.  The plaintiff, Vivint Louisiana, LLC, is a maker and seller of residential home security systems that markets primarily through door-to-door solicitation.  Claiming that it was unable to conduct its business in Shreveport, Vivint sued the city.  The court found that the case was governed by Central Hudson, and that the city’s prohibition on solicitation should be reviewed as a restriction on commercial—as opposed to noncommercial—speech.  The court’s treatment of the ban as a commercial speech regulation was based entirely on the language of the ban, which prohibited solicitation “for the purpose of soliciting orders for the sale of goods, wares and merchandise, or for the purpose of disposing of or peddling or hawking such goods, wares and merchandise.”

Vivint Louisiana, LLC v. City of Shreveport, slip op., No. 15-0821, 2016 WL 5723983 (W.D. La. Sep. 30, 2016).