Content Neutrality

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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…

[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

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

Credit: Brad. K, Flickr. Image used subject to creative commons license.

Earlier this year, we reported on a Ninth Circuit decision upholding the City of Oakland’s permitting scheme for donation and collection boxes as a content-neutral, and permissible, exercise of government authority.  Now, however, the plaintiff in that case has asked the Supreme Court to review a narrow question from the Ninth Circuit’s decision: “Is a regulation content based for purposes of the First Amendment where it applies only to unattended receptacles that solicit donations or collections?”

Though we’ve covered this case twice before, as a refresher, Petitioner nonprofit Recycle for Change places donation and collection boxes around Oakland to solicit donated materials for the dual purpose of conserving environmental resources and raising funds for charity.   In 2016, the city enacted an ordinance regulating unattended donation and collection boxes and requiring that property owners or donation box operators obtain a permit, produce a site plan, and carry at least $1 million in liability insurance.  The license fee established under the permitting scheme is $246 per year, and the initial application fee for the permit is $535.  The city’s regulations require maintenance of the boxes, place restrictions on the size and location of the boxes, and prohibit the placement of boxes within 1,000 feet of one another.

Recycle for Change sued Oakland on
Continue Reading Bay Area Nonprofit Asks Supreme Court to Weigh in on Oakland Bin Ordinance

Protesters near Planned Parenthood in Pittsburgh. Source: CBS Pittsburgh.

Last week, a federal district court granted summary judgment to the City of Pittsburgh, Pennsylvania in a long-running dispute over a buffer zone law applicable to protest activities outside of reproductive health facilities such as Planned Parenthood.  The court held that the city’s 15-foot buffer zone law was content neutral and narrowly tailored to a substantial governmental interest, and thus valid under the First Amendment.

Pittsburgh enacted its buffer zone law in 2005.  The initial buffer zone law initially imposed a 15-foot buffer zone around the entrance to a hospital or health care facility in which no person was permitted to congregate, patrol, picket, or demonstrate.  The buffer zone excepted public safety officers, emergency workers, employees or agents of the facility, and patients.  The law also imposed an eight-foot “personal” buffer zone around individuals.  In the eight-foot buffer zone, no person could approach an individual to provide a leaflet or to protest, where the individual was within 100 feet of a hospital or health care facility entrance.  The eight-foot personal buffer zone was struck down in the case of Brown v. City of Pittsburgh in 2009.  The 15-foot buffer zone remained in effect, but was challenged again in 2014 following the Supreme Court’s decision in McCullen v. Coakley, in which the Court struck down a Massachusetts law imposing a 35-foot buffer zone around health care clinics.  The plaintiffs in the case are religiously-motivated protesters who engage in protest activities around a Planned Parenthood facility in Pittsburgh.  In 2016, as we reported, the Third Circuit reversed the district court’s dismissal of the case.
Continue Reading District Court Finds in Favor of Pittsburgh Buffer Zone Law

Nashville Pride Festival. Source: Nashville Pride.

Late last month, a federal district court in Tennessee granted summary judgment to the Nashville metropolitan government in a case involving the rights of protesters at the 2015 Nashville Pride Festival, which is a celebration of LGBTQ rights and culture.

Nashville Pride Festival is held in the City’s Public Square Park.  In order to hold the festival in the park, Nashville required the organization Nashville Pride to obtain a permit.  The event was ticketed, such that only those with tickets could enter into the park.  The plaintiffs in the case, John McGlone and Jeremy Peters, believe that homosexuality is a sin.  They attended the festival in protest, but stayed outside the ticketed area.  A festival employee asked them to leave the area outside of the gate, as it was subject to Nashville Pride’s permit.  Eventually, the protesters were removed to a location on the other side of the street from the park.  This location was unsatisfactory to the plaintiffs, because they believed that their message would reach less people.
Continue Reading Court Upholds Relocation of Protesters at Nashville Pride Festival

Klyde Warren Park in Dallas. Source: klydewarrenpark.org

Last month, the Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment.  The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others.  To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles.  The riddles are intended to attract people to stop by and ask him about them.  The park rules prohibit structures larger than four feet by four feet without a permit.  Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park.  In 2015, he received a criminal trespass warning.  After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds.
Continue Reading Restrictions on Structures in Dallas Park Upheld

Signs on the pedestrian overpass in Campbell, Wisconsin. Source: Milwaukee Journal.

Late last week, in a case that involved made-for-TV shenanigans by a local police officer, the Seventh Circuit Court of Appeals ruled that a town’s total ban on signs, flags, and banners within 100 feet of an interstate highway could survive with respect to overhead signs, but remanded the case for additional proceedings with respect to other parts of the ban.

Campbell, Wisconsin bans all signs, flags, and banners along interstate highways.  The town enacted its regulation after members of the community hung political protest banners containing messages commonly identified with the Tea Party on a pedestrian overpass over Interstate 90.

Following the enactment of the regulation, the local police began issuing citations to individuals displaying signs along the highway.  Some of the individual sign-posters took videos of the police issuing citations—including in response to the protesters’ display of American flags and other patriotic signs along the interstate highway.  Concerned about the videos, in an apparent attempt at vigilante justice, the local police chief posted the name and email address of one of the Tea Party sign-posters on same-sex dating and pornographic websites.  The police chief also took to local newspapers to accuse the man of failing to pay his taxes. 
Continue Reading Amid Interstate Overpass Soap Opera, Seventh Circuit Says No Empirical Evidence Required to Support Sign Regulation