Content Neutrality

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The Fremont Street Experience in Las Vegas. Source: Vegas Experience.

Fremont Street in Las Vegas is one of the city’s major tourist attractions.  It is operated and managed by a private concessionaire, Fremont Street Experience, LLC.  The city government regulates street performances on Fremont Street, controlling the areas in which street performances take place, limiting noise made by street performers, designating times in which street performances are allowed, establishing a lottery system to allocate times and locations among street performers (25 to 38 performers, depending on the time of the day), and requiring that street performers obtain a city license.  In a prior case, the Ninth Circuit Court of Appeals found Fremont Street to be a traditional public forum.Continue Reading Court Denies Preliminary Injunction in Las Vegas Mall Case

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, the First Circuit Court of Appeals upheld a lower court decision finding that a New Hampshire law prohibiting digital photography of completed election ballots violated the First Amendment.  In the case of Rideout v. Gardner, the court found that the law was not narrowly tailored to a significant governmental interest, and therefore failed intermediate scrutiny review.

The New Hampshire law in question was commonly referred to as the “ballot selfie” law, since it prohibited individuals from taking cell phone photographs of themselves with their completed ballots.  The law was a 21st century update of an earlier state law dating back to the late 1800s
Continue Reading First Circuit Rejects New Hampshire “Ballot Selfie” Law

A digital billboard in New Jersey. Source: nj.com.

In a surprising decision, the New Jersey Supreme Court found earlier this month that a township ordinance prohibiting digital billboards violated the free speech provisions of the U.S. and New Jersey constitutions.

Franklin Township, New Jersey, a suburban community in Somerset County, enacted sign regulations that allowed billboards in zoning districts near interstate highways.  The regulations prohibited digital billboards.  The township justified its regulations on the basis of traffic safety and aesthetics.  Various township bodies suggested that the ban on digital billboards was enacted because the township did not have sufficient information on the safety of digital billboards in order to craft appropriate regulations.  Because state law imposes dispersal requirements on billboards, it was established that the township could have just three static billboards and just one digital billboard.

In 2009, E&J Equities sought a variance to allow the placement of a digital billboard in the township.  Because digital billboards were not allowed, the request was brought before the township’s Zoning Board of Adjustment.  The ZBA did not approve the application.

Thereafter, E&J brought an action against the township in state trial court.  The trial court found that the township failed to meet intermediate scrutiny
Continue Reading New Jersey Supreme Court: Digital Billboard Ban Unconstitutional

The City of Harrisburg, Pennsylvania enacted a “buffer zone” ordinance that disallows an individual to “knowingly congregate, patrol, picket or demonstrate in a zone extending 20 feet from any portion of an entrance to, exit from, or driveway of a health care facility.”  A group of plaintiffs, protesters and sidewalk counselors near abortion clinics, challenged…

Last month, a federal magistrate judge in New York recommended invalidating yet another sign code as content based in violation of the First Amendment to the U.S. Constitution.  In February 2015, a resident of the Village of Perry, New York, Carolyn Grieve, posted signs complaining about the village’s spending policies.  Grieve received a notice of…

The Ron Paul sign in question in the Texas Highway Beautification Act case. Source: Austin Chronicle.

The Texas Highway Beautification Act permits “political” signs to be displayed no more than 90 days before an election and 10 days after an election.  Because this provision regulates speech based on its content, two weeks ago, the Texas Court of Appeals found the entire Highway Beautification Act violates the First Amendment to the U.S. Constitution.  The court’s decision in Auspro Enterprises, LP v. Texas Department of Transportation is a major blow to state and local efforts to control billboard advertising.

The case began in 2011 when a head shop owner in Bee Cave, Texas, Auspro Enterprises, displayed a sign advocating the election of Ron Paul for President outside of the time limits prescribed by the Highway Beautification Act.   The state Department of Transportation brought an enforcement action against the landowner
Continue Reading Texas Court Deals Setback to Billboard Restrictions

Last Friday, a federal district court in Florida found that the City of Tampa’s restriction on requests for donation or payment—aimed at preventing panhandling and solicitation on city streets—violated the First Amendment.  The court’s decision follows on several other decisions around the country that have invalidated bans on solicitation of donations on the grounds that such bans are not content neutral.
Continue Reading Tampa Panhandling Ban Found Unconstitutional

Last week, a court in Missouri ruled that a village’s ordinance prohibiting commercial activity—including commercial photography—in a park was a constitutional restriction on speech.

The Village of Twin Oaks, Missouri had an ordinance that prohibited the use of a village park for commercial purposes.  The park was posted with signage that read:  “No commercial activity, including commercial photographers.”  The stated purpose for the village’s regulation was to ensure public safety and fair use of the park.  Josephine Havlak was a professional photographer who takes pictures for wedding and portrait purposes.  After Havlak filed suit claiming that the ordinance was a content based and unconstitutional restriction on speech, the village modified the ordinance to allow commercial photographers to use the park in exchange for a $100 permit fee.
Continue Reading Photography May Be Protected Speech, But Village’s Restriction on Park Photography Stands

This post was authored by Otten Johnson summer law clerk Alex Gano.  Alex is a rising third-year law student at the University of Colorado Law School.

On June 1, a three-judge panel of the U.S. Court of Appeals for the Third Circuit vacated a lower federal court’s dismissal of a First Amendment challenge to a City of Pittsburgh ordinance that created a fifteen-foot “buffer zone” around entrances to abortion clinics. The lower court dismissed the challenge filed by five self-described “sidewalk counselors” based on a 2009 opinion by the Third Circuit that upheld the same ordinance. Writing for the Court, Judge Kent Jordan interpreted the Supreme Court’s decision in McCullen v. Coakley to compel a more vigorous “narrow-tailoring” analysis to burdens on speech. Judge Jordan’s opinion also implies that McCullen will have the effect of prolonging litigation over buffer zone ordinances, which have become a cutting edge of First Amendment jurisprudence in recent years.
Continue Reading Third Circuit Revives Challenge to Pittsburgh’s Abortion Clinic “Buffer Zone” Ordinance, Portends of More Litigation to Come