Content Neutrality

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Abortion protesters outside of a Planned Parenthood clinic in Portland, Maine. Source: Bangor Daily News.

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 May 23, a federal judge in Maine issued a preliminary injunction against enforcement of a portion of that State’s Civil Rights Act that prohibited “making noise” with the intention of either “jeopardize[ing] the health of persons receiving health services” or “interfer[ing] with the safe and effective delivery” of health services. The ruling in March v. Mills—together with another opinion issued by a federal appellate court in Pennsylvania nine days later—mark the latest chapter in a twenty-year jurisprudential saga on the constitutionality of speech restrictions around abortion clinics.
Continue Reading Federal Judge Enjoins Enforcement of Maine “Noise Provision” as Not Content-Neutral

This post was authored by Otten Johnson summer law clerk Matt Bender.  Matt is a rising third-year law student at the University of Denver Sturm College of Law.

Herson v. City of Richmond was all set on October 21, 2014, when the Ninth Circuit Court of Appeals issued its first opinion on the case, affirming the dismissal of the plaintiff’s First Amendment claims.  However, after the United States Supreme Court decided Reed v. Town of Gilbert, the Supreme Court vacated the original Ninth Circuit Herson decision so that the case could be reconsidered under Reed.  A year and a half later on January 22, 2016, the Ninth Circuit again issued an opinion on Herson v. City of Richmond.  While the Supreme Court thought things had changed due to Reed, the Ninth Circuit apparently did not as this second opinion is word-for-word identical to the first.
Continue Reading A Pre-Reed Case Decided in a Very Similar Post-Reed World

Matt Smerge of Left Field Media hawking newspapers at a Cubs game. Source: Chicago Reader.

On Monday, the Seventh Circuit Court of Appeals determined that Chicago’s ban on the peddling of merchandise on sidewalks adjacent to Wrigley Field was a constitutional time, place, and manner regulation that survived intermediate scrutiny.  The ordinance was challenged by Left Field Media, which publishes a magazine called Chicago Baseball and sells copies outside of Wrigley Field before Chicago Cubs home games.  Chicago’s “Adjacent Sidewalks Ordinance” prohibits peddling merchandise on any sidewalk adjacent to Wrigley Field, for the purpose of allowing safe pedestrian passage.  Because the Adjacent Sidewalks Ordinance prohibited the sale of all merchandise—“[t]he ordinance applies as much to sales of bobblehead dolls and baseball jerseys as it does to the sale of printed matter”—the appeals court found that the ordinance was content neutral in light of Reed v. Town of Gilbert.  The appeals court’s decision upholds the prior denial by a federal district judge of the plaintiff’s motion for a preliminary injunction.
Continue Reading Appeals Court: Wrigley Field Peddling Ordinance Not a First Amendment Violation

Last week, a federal district court in Indiana rejected a billboard company’s claim that sign code amendments passed by Indianapolis following the Supreme Court’s decision in Reed v. Town of Gilbert violated the company’s First Amendment rights.  Although the decision was a win for the city’s current code, the city is being forced to pay damages to the billboard company for the monetary losses faced by the company prior to the city’s passage of the sign code amendments.
Continue Reading Post-Reed Indianapolis Sign Code Amendments Survive Judicial Scrutiny; City Must Pay Damages for Past Errors

Last month, a federal court held that a billboard company’s motion to revise the court’s earlier denial of summary judgment to a Pennsylvania township’s sign regulations was not ripe.

The billboard company, Nittany Outdoor Advertising, LLC, desired to post messages written by a non-profit organization, Stephanas Ministries, on billboards in College Township, Pennsylvania.  The township…

In an opinion issued last month, a federal district court in Texas denied an event promoter’s request for a preliminary injunction to compel the City of Dallas to contract with the promoter for use of the Dallas Convention Center in connection with a three-day adult entertainment expo called “Exxxotica.”

The promoter contracted with the City to hold Exxxotica at the Convention Center in 2015.  Prior to that event, the promoter had promised the City that no one under eighteen would be admitted to the event, sexual activities would be prohibited and no obscenity or public lewdness would be permitted.  However, despite the promoter’s promises, the City had evidence, including video footage, of likely underage attendees and lewd conduct at the event.
Continue Reading Court Denies Adult Expo’s Motion for Preliminary Injunction; City’s Convention Center is a Limited Public Forum

In the continuing saga of the plaza of the Lindsey-Flanigan Courthouse here in Denver, last Friday, the Tenth Circuit Court of Appeals ruled that the federal district court did not abuse its discretion in granting the plaintiffs’ motion for a preliminary injunction.  Specifically, the Tenth Circuit upheld the district court’s treatment of the courthouse plaza as a traditional public forum—the Second Judicial District had earlier waived its argument that the plaza was anything but a traditional public forum—and that the district court did not err in finding that the content neutral regulation of speech in the plaza was insufficiently narrowly tailored.
Continue Reading Tenth Circuit Upholds Grant of Preliminary Injunction in Denver Courthouse Case

For those wading through the sign regulation muddle post Reed v. Town of Gilbert, check out my latest article in The Urban Lawyer, Sign Regulation After Reed: Suggestions for Coping with Legal Uncertainty.  Co-authored with Professor Alan Weinstein of Cleveland-Marshall College of Law, the article provides practical advice to local government planners…

The Lindsey-Flanigan Courthouse plaza should be open to expressive activity, at least according to the federal district court in Colorado. Source: Glass Magazine.

In a case close to home (for us, at least), a group of citizen pamphleteers sued the City and County of Denver and the Colorado Second Judicial District court, claiming that prohibitions on expressive activity in the plaza outside of Denver’s Lindsey-Flanigan Courthouse violated the First Amendment.
Continue Reading Federal Court Finds Plaintiffs Likely to Prevail in Denver Courthouse Free Speech Case

The Town of Southeast’s sign regulations provided an exemption from permitting for political signs, so long as their placement did not exceed 21 days. In 2011, the code was amended to provide that the posting could occur up to 21 days before the event being advertised, and the signs had to be removed five days after the event.  Durational limits were not placed on other types of noncommercial signage.  In 2011, the plaintiff was charged in town court with a violation of the sign regulations for posting her political signs in the right-of-way and more than five days after an election.  In 2013, the Town amended the code again to limit the number of political signs to one per candidate per parcel.  In 2014, the Town amended the sign code to create strict limitations on all temporary signs, but exempted construction signs, portable business signs, real estate “for sale” signs, holiday decorations, agricultural produce advertising, and some other signs.
Continue Reading New York Town’s Political Sign Regulations Found Invalid