Legacy Church in Albuquerque, New Mexico. Source: Legacy Church.

Last week, in one of the first judicial decisions addressing a First Amendment challenge to state-level social distancing requirements, a federal judge in New Mexico has denied preliminary injunctive relief to a church.  This outcome differs from another recently-decided case in Kentucky, where a district court enjoined enforcement of a city restriction that applied exclusively to drive-in church services.

Like most other states, New Mexico has taken significant steps to combat the coronavirus.  These actions began on March 11 with the declaration of a state of emergency, and urging from public officials to avoid gatherings and non-essential travel, and to engage in social distancing.  On March 24, the state ordered non-essential businesses to close, and prohibited indoor gatherings of more than five people, with a special exemption for houses of worship.  That was followed on March 27 by an order for recent travelers to self-quarantine.  On April 6, the state issued another order, this time prohibiting outdoor gatherings, but again exempting religious worship.  With Passover, Ramadan, and Easter approaching, the governor and health department encouraged religious organizations to use online methods of outreach.  On April 11, the day prior to Easter, the state issued a modified no-gathering order, this time including religious organizations in its sweep.

Legacy Church, which has nearly 20,000 members and locations in Albuquerque, Rio Rancho, and Edgewood, livestreamed its Easter services, but did not prohibit members from attending services in person.  The church has indicated that it plans to continue to hold in-person services during the COVID-19 pandemic.  The church filed its lawsuit against the state and its Secretary of Health, on the evening of April 11, and on April 14, filed a motion for a temporary restraining order allowing Legacy to conduct in-person services.
Continue Reading Federal Court in New Mexico Denies Temporary Restraining Order in First Amendment Challenge to COVID-19 Restrictions

Large religious gatherings, such as Catholic masses, may result in virus transmission, but may be difficult for U.S. governments to prohibit. Source: Catholic Sun.

Since the rest of the world seems to be taking a break from regular activities amid the COVID-19 outbreak, we’ll take a break from our regularly-scheduled programming to offer our view of the pandemic through the lens of our favorite topic:  First Amendment rights.

China’s response to the outbreak in Wuhan is well-documented.  Mandatory quarantines, citywide shutdowns, prohibitions on gatherings, and other such actions were implemented swiftly.  We in the United States have not yet seen such a response, and there’s no telling whether such a response will be needed.  But because we enjoy more individual liberties than do Chinese citizens, what might be the legal consequences of some of these actions?  We offer some thoughts below for state and local regulators:
Continue Reading COVID-19 and the First Amendment: Thoughts for State and Local Regulators

In a case involving violations of nearly every First Amendment protection for speech in public places, a federal court recently enjoined enforcement of new Chicago restrictions on speech in the city’s famed Millennium Park.  Evidently hoping to safeguard quiet contemplation of the “Bean” (pictured here) and all but a few other areas of the park, the City enacted an ordinance prohibiting a range of speech.

Visitors contemplate Cloud Gate in Chicago’s Millennium Park. Source: Wikimedia Commons, Sharon Mollerus

The ordinance outlawed conduct “that objectively interferes with visitors’ ability to enjoy the Park’s artistic displays” and the “making of speeches and the passing out of written communications” outside a few specified areas.  It did not, however, provide any guidance as to how to enforce those prohibitions—leading to an astonishing interaction in which a park employee explained that religion could not be discussed in the park.  On February 20th, the U.S. District Court for the Northern District of Illinois concluded these provisions violated the First Amendment and issued a preliminary injunction barring their enforcement.

The parties challenging the ordinance were a group of college-student evangelists and petition circulators whom the city had rebuffed in their attempts to champion their causes in Millennium Park.  Among Chicago’s various attractions, the park held special appeal for the challengers because
Continue Reading Federal Court Enjoins Chicago Park Speech Regulations

A sign welcomes visitors to Bentley Manor in Shavano Park. Source: mytexashomeresource.com

It is a rare free speech case where a court finds a regulation content based, but still upholds the regulation.  That very scenario played out in a federal district court in Texas, when it upheld the City of Shavano Park’s sign regulation prohibiting certain banner signs.

Shavano Park, a suburb of San Antonio, has a sign code that controls the placement of signs on private property.  The code allows one temporary sign per residential lot, with some additional allowances when properties are for sale or during election seasons.  The code also allows the placement of banner signs in residential zoning districts, with some limitations.  These limitations include that such signs may be erected by a homeowners’ association, they may be placed at entrances to residential neighborhoods, no more than one banner sign is allowed per owner, and banner signs are only permitted in the week before the first Tuesday in October, which coincides with National Night Out.  The sign code’s stated rationale for its restrictions focuses largely on aesthetics.
Continue Reading Texas City’s Banner Sign Limitation Found Content Based, But Survives First Amendment Challenge

The Planned Parenthood location on Virginia Cove in Memphis. Source: The Business Journals.

In a case we reported on last year, the Sixth Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction in a case involving protests outside of a Planned Parenthood location in a Memphis, Tennessee business.  The case previously turned on the fact that the street in front of the clinic was a private street.  The district court had determined that, because the street was private, it could not be a public forum in which anti-abortion protests could take place.

The Sixth Circuit’s decision, issued yesterday, turned on the fact that the private street in question was “physically indistinguishable” from adjacent public streets.  The court reasoned that, because the private street was paved and had no signage indicating that it was privately-owned, a reasonable member of the public would likely consider the street public.  Thus, the court classified the street as a traditional public forum.  The court was also swayed by the fact that there appeared to be a dedication of the street on the subdivision plat for the business park in question, and that the public had impliedly accepted the street as a public street through public use of the street.  The court went on to apply strict scrutiny (although it did not conduct any analysis as to whether the restrictions on the street’s use were content based), and reversed the district court’s order.
Continue Reading Sixth Circuit Reverses Denial of Preliminary Injunction in Memphis Planned Parenthood Case

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

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

A homeless individual’s sign in Slidell, Lousiana. Source: WWLTV.com.

This week, a federal district court in Louisiana granted a motion for summary judgment invalidating the City of Slidell’s law requiring panhandlers to register and wear identification before soliciting donations.  In a lengthy but thorough order, the court found the city’s law, which applied only to individuals seeking to solicit donations of money or services, content based and unconstitutional, and issued a permanent injunction against enforcement of the law.

The backstory of Slidell’s “panhandler ID” law starts in 2015.  Since then, the city received 70 complaints relating to panhandling and solicitation, but only 14 were “connected to an identifiable individual.”  Because of the difficulty of tracking down panhandlers who were violating city laws, the city council passed an ordinance containing certain registration and identification requirements.  Specifically, the ordinance required individuals to complete an application at least 48 hours prior to panhandling.  To complete the application, a person was to physically appear at the police department between 9:00 and 5:00 on a weekday, fill out the written application (which required listing an address, telephone number, email, and other identifying information), and show a photo identification.  After a group of indigent individuals sued the city over the law, the city removed the 48-hour waiting period and required issuance of a permit for up to 72 hours of panhandling following filing of a complete application.  The 72-hour permit can be extended for up to a year on certain conditions.
Continue Reading Louisiana Town’s “Panhandler ID” Law Struck Down

The case involved a dispute between the Minnesota Tea Party and election judges. Source: MinnPost.

In February, the Eighth Circuit Court of Appeals affirmed a Minnesota district court’s grant of summary judgment in favor of the state, finding that the government could effectively prohibit political speech in polling places.  In a short decision, the court determined that speech by members of the Tea Party was properly restricted from polling locations.

Minnesota has a state statute that prohibits individuals from wearing political buttons or other insignia in polling places on election days.  The state issued a policy guide which was intended to assist election judges with the types of material that constituted political speech, which included “issue-oriented” material or material that promoted groups with political ends.  Failure to abide by the restriction could result in prosecution for a criminal misdemeanor.  The group that challenged the law included several members who wished to bear the insignia of the Tea Party in polling places.
Continue Reading Eighth Circuit Affirms That Government Can Prohibit Political Speech in Polling Places