Donald Burns’s current home in Palm Beach. Source: curbed.com.

Earlier this year, after a telecom millionaire with a checkered past challenged the Town of Palm Beach, Florida’s architectural review ordinance on First Amendment grounds, a federal magistrate judge in Florida issued a report and recommendation finding that the house proposed by the applicant was not entitled to First Amendment protection.  The court then entered summary judgment in favor of the town.

Donald Burns sought to construct a new, modern home in a neighborhood otherwise characterized by more traditional architecture.  He filed an application in 2014 to demolish his existing home and construct the new house.  His self-declared intent was to distinguish himself from his neighbors and to communicate modernist design elements to the community.  Neighbors opposed the project.  After reviewing several iterations of the proposed design, the town’s Architectural Commission denied Burns’s application in 2016.  Burns then filed suit, alleging violations of the First Amendment as well as claims under the Due Process and Equal Protection clauses of the Fourteenth Amendment.

The court first iterated that it was the plaintiff’s burden to establish that the activity in question was expressive conduct protected by the First Amendment.  The court considered the Eleventh Circuit’s two-part test for determining whether conduct receives First Amendment protection, which requires analyzing whether the actor intends to communicate a message and whether there is a “great likelihood” that a reasonable viewer would understand the conduct is communicative.  The court also considered case law on the distinction between commercial merchandise and expressive products.  The court noted that only two prior cases had addressed questions of whether architecture constituted protected speech:  a 2004 federal district court case in Nevada held that residential architecture was not protected, while a 1992 Washington case found that religious architecture was sufficiently expressive so as to receive First Amendment protection.

Applying the test typically applied to determine whether merchandise is expressive, the court found that Burns’s proposed home was not expressive conduct deserving of First Amendment protection.  The house, in the court’s eyes, had a predominantly non-expressive purpose:  it was intended for residence by an individual or family.  Additionally, the court found that it was unlikely that a reasonable person would view the house as expressive conduct.  Accordingly, the court declined to review the architectural review ordinance under the First Amendment.

The district court adopted the magistrate’s report and recommendation in late September.  The case is now on appeal to the Eleventh Circuit.  This case is of particular interest to First Amendment observers, as cases involving questions of whether architecture is protected under the First Amendment are few and far between.

Burns v. Town of Palm Beach, No. 17-CV-81152, 2018 WL 4868710 (S.D. Fla. Jul. 13, 2018).

One of Morris’s murals in New Orleans. Source: The Advocate.

In October, a federal district court in Louisiana denied the City of New Orleans’s motion to dismiss a claim filed by an individual challenging the city’s permit requirement for murals.

In late 2017, Neal Morris, an owner of residential and commercial properties in New Orleans, sought information from the city about the permit process and approval criteria for placing murals on his properties.  When he did not receive the requested information, Morris commissioned an artist to paint a mural on one of his properties.  The mural contained the infamous vulgar quote by President Donald Trump on the “Access Hollywood” tape, but replaced certain of the inflammatory words with images.  Morris was subsequently cited with a violation of the city’s historic district regulations.

In response, Morris filed suit against the city, alleging that the permitting scheme violated his First Amendment rights.  Specifically, he claimed that the permit scheme was an unconstitutional prior restraint and that it was a content based regulation.  He also claimed due process and equal protection violations.  The city subsequently amended its regulations, and the court denied the plaintiff’s motion for preliminary injunction as moot.  When the city then moved to dismiss the case, the plaintiff filed a response in opposition to the motion.

The court first found that the plaintiff had standing to challenge the mural ordinance.  Since the city was attempting to interfere with Morris’s placement of murals, the court found that he had standing.  The court moved on to analyze whether the mural ordinance is content neutral or an unconstitutional prior restraint.  The mural ordinance requires murals to be submitted to the city for design review, in which the city considers the mural’s compatibility with surrounding properties and neighborhoods and determines whether the mural furthers public welfare.  Because these analyses require analysis of the mural’s content, the court found that the regulation was content based.  Based on that finding, the court relied upon Thomas v. Chicago Park District to determine that the law was also an unconstitutional prior restraint, because it allowed unbridled administrative discretion in the issuance or denial of mural permits.

The court went on to find that Morris also pled sufficient facts to state an unconstitutional vagueness claim under the Due Process Clause, but dismissed the plaintiff’s “class of one” claim under the Equal Protection Clause.

Morris v. City of New Orleans, No. 18-2624, 2018 WL 5084890 (E.D. La. Oct. 18, 2018).

Two men were arrested for disorderly conduct in an anti-abortion demonstration in Little Rock, Arkansas.  In addition to bringing a Fourth Amendment claim against the Little Rock Police Department, the men challenged the Arkansas disorderly conduct statute and the city’s permit requirement as violations of their free speech rights under the First Amendment.  A federal district court dismissed the plaintiffs’ claims, and the Eighth Circuit affirmed on appeal earlier this month.

Arkansas’s criminal code contains several actions that constitute disorderly conduct, including:  fighting; in violent, threatening, or tumultuous behavior; unreasonable or excessive noise; the use of “abusive or obscene language, or mak[ing] an obscene gesture, in a manner likely to provoke a violent or disorderly response; disruption or disturbance of meetings or gatherings; obstructing traffic; and other actions.  The plaintiffs argued that the statute was vague and overbroad.  The appeals court found that the statute was not vague, primarily because it contained a mens rea requirement—that is, that the violator have a particular intent to engage in disorderly conduct.  The court used similar logic in upholding the statute against the plaintiffs’ overbreadth claim, finding that the statute was content neutral and that its objective mens rea requirement precluded an overbreadth challenge. Continue Reading Arkansas Abortion Protesters Lose Appeal in Vagueness, Overbreadth, and Prior Restraint Case

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

In a case that we reported on earlier this year, a federal court in Pennsylvania has ruled that the failure to provide a deadline by which the government is required to make permitting decisions renders that state’s outdoor advertising law unconstitutional.  Nonetheless, PennDOT can remedy the problem by simply imposing internal processing timeframes.

The facts of the case can be found in our earlier post.

On cross-motions for summary judgment, the court found that the permitting provisions of the act violated the First Amendment.  Pennsylvania’s outdoor advertising law does not contain any deadlines by which the state must rule on a billboard permit application.  Under the Supreme Court’s rulings in City of Littleton v. Z.J. Gifts and Thomas v. Chicago Park District, a content based law must have a clear permitting timeframe in order to satisfy constitutional scrutiny.  The court determined that the Pennsylvania statute was content based, because it exempted “official signs” and “directional signs” from permitting.  As there was no timeframe required for the issuance of other permits, the court invalidated the permitting provisions of the statute.  Of course, PennDOT can remedy the constitutional violation by simply imposing internal permitting timeframes. Continue Reading Lack of Permitting Timeframes in Pennsylvania Billboard Law is Unconstitutional, But There’s An Easy Fix

The U.S. District Court for the Eastern District of Missouri recently sided with a St. Louis-area locality of 1,500 best known as the home of the events behind The Exorcist, upholding its sign code against a motion for preliminary injunction.  The principle facts were these: the City of Bel-Nor code allows one double-faced stake-mounted yard sign per improved parcel.  Plaintiff Lawrence Willson placed three such signs in his yard, a window sign near his front door asking first responders to rescue his pets, and an “Irish for a Day” flag in his garden.  Bel-Nor cited him for violating the one-sign-per-yard ordinance, but did not take issue with the window sign or garden flag, although they too likely violated its sign code.

Lawrence, represented by the ACLU, sought a preliminary injunction to enjoin Bel-Nor from enforcing its entire sign code ordinance, arguing that the ordinance violated his Constitutional right to Free Speech.  The district court rejected the request with a rote application of First Amendment principles. Continue Reading Tiny Enclave’s One-Sign Rule Survives Initial Constitutional Challenge

James Deferio protesting same-sex marriage in Syracuse. Source: Syracuse University Student Voice.

In a case that we reported on in 2016, a federal district court in New York has granted summary judgment to the plaintiff.  The case involves the regulation of protest speech—specifically, a protester’s activities during an LGBTQ rights parade—on public sidewalks.

A brief recap of the facts is merited.  James Deferio is a Christian evangelist who has protested each year at the Central New York Pride Parade and Festival, held in Syracuse.  Each year, the city issued a permit to the organizers of the parade.  That permit indicated that no speakers would be allowed on sidewalks adjacent to the parade.  At the 2014 event, Syracuse police officers threatened Deferio with arrest in reliance on the permit, and he relocated from the site.  In 2015, the city again approved a permit for the parade, giving the parade exclusive control over First Amendment activities and limiting the use of sound amplification devices near the parade route.  The 2015 permit also allowed for a zone where protest activities could occur.  Deferio again attended the parade to protest.  After minor verbal altercations ensued, a Syracuse police officer told Deferio that he could be arrested for his activities, and he relocated to the zone designated for protest activity. Continue Reading Summary Judgment Granted to Christian Evangelist in Syracuse Pride Parade Case

Last month, a federal district court in Pennsylvania found that a billboard company’s challenge to the constitutionality of the state’s highway advertising law sufficiently stated a claim for relief and could proceed to further stages of litigation.

Pennsylvania’s highway advertising law contains a general prohibition on sign structures within 500 feet of a highway interchange or rest area, but the law exempts on-premises commercial and noncommercial signs (i.e. those advertising activities and products available on the property where the sign is located) and “official signs,” which are defined as those placed by public agencies.

Adams Outdoor Advertising, a billboard company, brought a First Amendment challenge, claiming that PennDOT, the state’s transportation department, had changed its interpretation of the highway advertising law, and had given varying directives regarding whether the 500-foot restriction applied to billboards on the opposite side of a highway from a rest area or interchange. Adams wanted to install a billboard opposite an interchange, but PennDOT had declined to issue a permit.  Adams contended that PennDOT’s changed interpretation of the statute made it unconstitutionally vague.  Adams further alleged that the lack of any timeframes in which PennDOT was required to act upon applications for sign permits also made the law unconstitutional.

The court first determined that it was not clear whether the law in question was content neutral, due in part to the exceptions to the permitting requirement.  The court left for a later day the determination of whether it was content neutral, reasoning that even a content neutral law would be required to satisfy intermediate scrutiny.  The court dismissed Adams’s vagueness claim, however, because it found that a person of ordinary intelligence could determine the meaning of the law from its face; the court was not persuaded that PennDOT’s changing interpretation of the statute rendered the law vague.  The court went on to find, however, that because the law was not clearly content neutral on its face, the lack of any timeframe for the issuance of sign permits would potentially create a constitutional defect in the statute.

The court additionally dismissed substantive due process and equal protection claims as well.

Adams Outdoor Advertising Limited Partnership v. Penn. Dept. of Transp., No. 5:17-cv-01253, 2018 WL 822450 (E.D. Penn. Feb. 9, 2018).

[The following case centered on an ethnic slur and this post therefore includes two references to that slur.]

Reaffirming the First Amendment’s virtual prohibition on viewpoint discrimination, the Second Circuit recently held that New York state could not prohibit a vendor from participating in public lunch program simply because its name and menu featured ethnic slurs.

The case emerged from a dispute over access to the publicly owned Empire State Plaza in Albany, New York.  After years of contracting with a single vendor to supply food for a daily lunch program hosted in the plaza, New York’s Office of General Services (OGS) chose instead to feature a rotating line-up of food trucks—similar to Civic Center Eats program in Denver’s Civic Center Park—subject to a permitting regime.  Plaintiff Wandering Dago, Inc. (“WD”), which operates a food truck with the same name, applied to OGS for a vending permit.  Though the application proceeded normally at first, when OGS officials realized the term Continue Reading Offensive Name Not a Constitutional Reason to Ban Food Truck from Public Lunch Programs, Says Second Circuit