The first federal circuit court opinions applying Reagan National Advertising of Austin, Inc. v. City of Austin are flowing in, and local governments can perhaps breathe a sigh of relief: normalcy has returned. Just last week, the Seventh Circuit upheld Madison, Wisconsin’s regulations on “advertising signs,” the definition of which used the same on/off-premises distinction at issue in City of AustinContinue Reading Seventh Circuit: Madison, Wisconsin’s “Advertising Sign” Regulation Passes Constitutional Muster after City of Austin

The Federal District Court for the District of North Dakota last week denied a request for a preliminary injunction that would have forced the City of Fargo to allow a “premier adult toy retailer” to open a downtown location. 

The case arose out of a zoning dispute between plaintiff “Romantix” and Fargo’s planning department.  Romantix considered itself just another retailer eligible to locate downtown.  City officials disagreed, saying that Romantix’s business of selling sexual devices instead made it an “adult bookstore,” which the City prohibits downtown, and that the City would not issue a change-of-use permit for a prohibited use.Continue Reading Federal District Court: No Preliminary Injunction to Prohibit Fargo from Excluding Adult Toy Store Downtown

On Thursday, in the case of City of Austin v. Reagan National Advertising, a case on which we’ve previously reported, the U.S. Supreme Court ruled that the City of Austin, Texas’s off-premises sign regulations were permissible under the First Amendment.  The Court’s ruling ensures that state billboard laws and thousands of local sign regulations that distinguish between on-premises (i.e. signs whose messages relate to an activity occurring on the same property where the sign is located) and off-premises signs (i.e. billboards) will remain intact and constitutional.

In the case, Austin denied permits to two billboard companies that were seeking to convert existing, static billboards to digital signs.  The billboard companies challenged, and the city removed to federal court.  The district court rejected the billboard companies’ challenge.  The Fifth Circuit Court of Appeals reversed, holding that the city’s sign code, which prohibited the erection of new off-premises advertising signs and further prohibited technological changes to nonconforming signs, violated the First Amendment.  The appeals court’s decision was based on the conclusion that the regulation was content based.  Under prior cases, including the 2015 ruling in Reed v. Town of Gilbert, the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect.  The appeals court’s holding in the case was premised upon the fact that the off-premises advertising restriction related specifically to the content of a sign.  Under the sign code, if the sign’s message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited.
Continue Reading U.S. Supreme Court Rules in Favor of Austin, Texas in Billboard Case, Upholds Off-Premises Sign Regulations

Stepping beyond the strict confines of sign law this week, we turn to a Texas case exploring new boundaries in First Amendment law: regulations on drone footage.  Late last month, the U.S. District Court for the Western District of Texas struck down those regulations as unconstitutional speaker-based restrictions that were also impermissibly vague.

By statute

On Monday, the U.S. Supreme Court granted the City of Austin, Texas’s petition for writ of certiorari in a case that may determine the legal fate of states’ and local governments’ efforts to restrict billboard advertising.

In the case, which we reported on previously, Austin denied permits to two billboard companies that were seeking to convert existing, static billboards to digital signs.  The billboard companies challenged, and the city removed to federal court.  The district court rejected the billboard companies’ challenge.  The Fifth Circuit Court of Appeals reversed, holding that the city’s sign code, which prohibited the erection of new off-premises advertising signs (i.e. signs that advertise goods and services that are not available on the property on which the sign is located) and further prohibited technological changes to nonconforming signs, violated the First Amendment.  The appeals court concluded that the regulation was content based.  Content based laws implicate the Supreme Court’s 2015 ruling in Reed v. Town of Gilbert, where the Court determined that laws that regulate the message or subject matter of signs are constitutionally suspect.  The appeals court’s holding in the City of Austin case was premised upon the fact that the off-premises advertising restriction related specifically to the content of a sign.  Under the sign code, if the sign’s message related to goods and services on the property where the sign was located, it would be permissible; if the message addressed other matters, it would be prohibited.  This, the court found, was impermissible.
Continue Reading U.S. Supreme Court to Review Austin Billboard Case

In a recent case out of Fall River, Massachusetts, the state supreme court found a panhandling law so riddled with constitutional problems as to require entire invalidation.  Plaintiffs, each a homeless person who sometimes panhandled to meet their basic needs, sought declaratory and injunctive relief against a state law that criminalized signaling to a motor vehicle on a public way “for the purpose of solicitating any alms, contribution or subscription or selling of any merchandise,” but expressly permitted the same conduct undertaken for other purposes or by a nonprofit organization.  They alleged violations of free speech rights under the First Amendment and state constitution.
Continue Reading Massachusetts Supreme Court Strikes Down State Panhandling Law

Recent litigation against the city of Fort Worth has once again confirmed that localities should steer clear of content-based sign codes and free-wheeling approval processes.  Dallas’s neighbor learned that lesson after a federal district court struck down portions of its regulations, concluding they were both content-based and a prior restraint, and also unable to survive strict scrutiny.

The case arose from plaintiff Brookes Baker’s efforts to place crosses in the city right-of-way alongside an abortion clinic.
Continue Reading Federal District Court Strikes Down Fort Worth’s Prohibition and Exemption Scheme for Materials in the Right-of-Way

In a case of first impression within the Sixth Circuit, a district court held that a city’s interest in protecting the exercise of a permit holder’s First Amendment rights is—at least in some circumstances—a significant interest supporting the content-neutral regulation of speech.

In 2018, Johnson City, Tennessee granted a Special Events Permit to LGBTQ organization TriPride to hold a parade and festival in a city park. At the festival, city officers enforcing the Special Events Policy moved religious protesters from blocking the park’s entrance. The protesters filed suit, claiming that this allegedly arbitrary enforcement violated their rights to free speech and free exercise of religion.Continue Reading District Court Upholds Tennessee City’s Enforcement of Policy Against Special Event Interference

Simi Valley, California, like many cities, bans mobile advertising displays on public streets.  It also, however, exempts certain authorized vehicles from the general ban.  The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.

A mobile billboard roaming the streets. Source: Wikimedia Commons, SammySosaa

Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation.  Following that conclusion, it returned the case to the district court for further proceedings to determine whether
Continue Reading Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny

Earlier this year, the federal Court of Appeals for the Eleventh Circuit upheld a district court’s denial of a preliminary injunction requested by a street preacher who alleged that a county government had infringed upon his First Amendment rights.

Adam LaCroix is a street preacher who discusses “Biblical principles of sexual morality” outside public venues