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

Last week, a federal district court in Indiana rejected a billboard company’s claim that sign code amendments passed by Indianapolis following the Supreme Court’s decision in Reed v. Town of Gilbert violated the company’s First Amendment rights.  Although the decision was a win for the city’s current code, the city is being forced to pay damages to the billboard company for the monetary losses faced by the company prior to the city’s passage of the sign code amendments.
Continue Reading Post-Reed Indianapolis Sign Code Amendments Survive Judicial Scrutiny; City Must Pay Damages for Past Errors

Following cross-motions for summary judgment, last week, a federal court determined that a Michigan township’s billboard restrictions were constitutional, but found that the variance provisions contained in the township’s zoning ordinance were an unconstitutional prior restraint on speech.  In the same order, the court rejected a billboard owner’s regulatory taking, equal protection and unconstitutional tax claims.
Continue Reading Federal Court in Michigan Upholds Township Billboard Regulations, but Variance Criteria are too Subjective