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).

Boston’s City Hall Plaza. The flagpoles can be seen on the right in the photo. Source: Boston Globe.

The City of Boston has three flagpoles in the plaza in front of its city hall.  Typically, the city displays an American flag and POW/MIA flag on one pole and the flag of Massachusetts on the second pole.  The third pole is used for the City of Boston flag, or alternatively, the flag of a third party.  The third pole has been used for flags of foreign nations, civic organizations, the LGBT rainbow flag, and others.  Parties can submit applications to fly their flag on the third pole, and the city has guidelines that prohibits flags that involve illegal or dangerous activities or conflict with scheduled events.  The city reviews applications to determine whether a flag is consistent with the city’s message, policies, and practices, but does not have any guidelines as to the content of the flags.  When an applicant was denied the opportunity to place a “Christian flag” on the City Hall on the grounds that the city refrains from flying religious flags on the Plaza, he filed suit.

Late last month, on the plaintiff’s motion for preliminary injunction, a federal district court found for the city.  The court determined that the display of flags in front of City Hall constituted government speech.  Applying the factors established by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court found that flags are a longstanding form of government speech, the flags in front of City Hall are likely understood to be government speech, and the city has effective control over the flags in front of City Hall.  Finding that the flags constitute government speech, that effectively ended the First Amendment inquiry. Continue Reading Federal Court Denies Preliminary Injunction in Boston Flag Case

Although this blog often focuses on the First Amendment’s Free Speech clause, we occasionally wander into the First Amendment cases involving religious exercise as well.  A Hand of Hope Pregnancy Resource Center v. City of Raleigh, emerged from Raleigh’s determination that Hand of Hope could not operate a religious pregnancy counseling center in a residential zone district, and therefore offers a bit of both.

Hand of Hope had previously operated a pregnancy resource center in Raleigh, where it offered clients both spiritual guidance and reproductive health information.  Its services also included pregnancy testing and Continue Reading Religious Pregnancy Counseling Organization Barely Survives Summary Judgment on Religious Land Use Claim

In mid-July, the Sixth Circuit Court of Appeals upheld a district court’s entry of summary judgment for the City of Shaker Heights, Ohio and one of its police officer co-defendants in a sign case arising out of animosity between two neighbors in the wealthy Cleveland-area suburb.

Upon the belief that her neighbors, Richard and Elizabeth Minkowetz, were committing acts of vandalism against her property, Gladys Wilson began posting signs in her windows facing the Minkowetzes’ property.  Examples of the signs’ messages include “nasty lil twit,” “Peeping Tom Exposed,” “Zoomed Zapped and Snapped,” and “Thur. 10:50.”  After the Minkowetzes complained to the city about the signs, the city dispatched one of its police officers to Wilson’s home, and she was later charged with disorderly conduct.  In response, Wilson filed claims against the city, one of its police officers, and its prosecutor under Section 1983 alleging, among other things, a First Amendment retaliation claim.  She also alleged malicious prosecution and equal protection claims. Continue Reading In a “Nasty” Neighborhood Sign Dispute, Shaker Heights, Ohio Prevails

The Gentleman’s Playground in Rocky Mount, North Carolina. Source: Yelp

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

A few weeks ago, the Fourth Circuit Court of Appeals affirmed a district court’s summary judgment order upholding Rocky Mount, North Carolina’s sexually-oriented business regulations against a First Amendment challenge by an exotic dance club known as “The Gentlemen’s Playground.”  As this is a professional blog, we will refrain from further commentary on the combination of the parties’ names, but invite our readers to conjure up whatever creative taglines come to mind.

American Entertainers has operated the club in Rocky Mount since 2002.  The city requires that all sexually oriented businesses obtain a license.  After discovering that The Gentlemen’s Playground was not licensed, the city sought to enforce its ordinance against the owner.  In response, American Entertainers challenged the constitutionality of the ordinance under the First and Fourteenth Amendments.  The district court granted summary judgment for the city.  On appeal the Fourth Circuit affirmed in part and reversed in part.

American Entertainers asserted that the definition of “sexually oriented business” in the ordinance was overbroad, so as to encompass “conventional, mainstream arts and entertainment.”  The Fourth Circuit rejected the claim and found that the ordinance was adopted for a purpose unrelated to suppression of expression, i.e. to offset the deleterious consequences, like lower property values and increased rate of crime, that accompany exotic dance clubs.  The court further found that the licensing requirement materially advanced the city’s substantial interest.  According to the court, the licensing fee was an acceptable way for the city to counteract some of the administrative and enforcement burdens that exotic dance clubs bring to a city.  The court also found that the ordinance was narrowly tailored to this important interest, noting that American Entertainers offered no evidence that the license itself restricted free speech.

Additionally, American Entertainers challenged two of the license-denial provisions, including one that allowed the city’s police chief to deny a license if the business would not comply with “all applicable laws,” and another that prohibited any applicant under twenty one years old from obtaining a license to operate a sexually oriented business.  The appeals court held that the provision allowing denial for violation of applicable laws was an unconstitutional prior restraint.  It failed to limit the phrase “applicable laws” and was susceptible to the chief of police creating trivial reasons to deny a license.  Ultimately, the court remanded this issue to the district court to determine whether and to what extent this provision is severable from the rest of the ordinance.

Finally, the plaintiff argued that the age restriction infringed upon equal protection and the First Amendment right to freedom of expression.  However, because the equal protection clause of the Fourteenth Amendment does not recognize age as a suspect class, the age restriction needs only to be rationally related to the city’s interest.  The court had no difficulty reasoning that because alcohol is typically served at exotic dance venues, the age restriction was rationally related to the city’s interest in ensuring the business owners of sexually oriented businesses are of legal drinking age.  Therefore, the court affirmed the district court’s denial of the Equal Protection challenge.

American Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d 707 (4th Cir. 2018).

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).

A copy of one of the advertisements that the Archdiocese of Washington intended to place on WMATA buses. Source: Archdiocese of Washington.

The Catholic Church’s efforts to “Keep Christ in Christmas” have been stymied by a District of Columbia judge this holiday season.  Earlier this month, the federal district court in Washington rejected a request by the Archdiocese of Washington to enjoin the Washington Metropolitan Transit Authority’s enforcement of its transit advertising policy.  The Archdiocese wished to display, during the holiday season, an advertisement on WMATA transit vehicles that contained the language “Find the Perfect Gift” and a religious image.  The advertisement was intended to encourage readers to remember the religious underpinnings of Christmas.  WMATA rejected the advertisement because it violated the authority’s rule prohibiting advertising that advocates or opposes religion. Continue Reading Reason for the Season? D.C. Court Upholds Transit Authority’s Rejection of Religious Holiday Advertising

One of the images that FFRF wished to display in the Texas capitol. Source: New York Post.

Late last month, a federal court in Texas denied a motion for summary judgment filed by the State of Texas in a case challenging the state’s policy for allowing privately-sponsored displays in the state capitol building.

The Texas State Preservation Board allows private individuals and groups to display exhibits “for a public purpose” in the public areas of the Texas state capitol building, subject to the board’s approval.  A private group, Freedom From Religion Foundation, which advocates for separation of church and state, wished to display an exhibit in December 2015 depicting life-size figures celebrating the birth of the Bill of Rights, along with Continue Reading Exhibits in Texas State Capitol Do Not Constitute Government Speech, Viewpoint Discrimination Claim Moves Forward

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.

A Tennessee case is inquiring into the “similarly situated” requirement for Equal Protection claims and will likely decide the constitutionality of the Tennessee Billboard Act (TBA).  While the outcome of the case is far from finalized, Thomas v. Schroer, which stems from the denial of the plaintiff’s sign application, has already raised some interesting questions about the reach of the First Amendment under Reed v. Town of Gilbert. Continue Reading How Similar is “Similarly Situated”? And the Constitutionality of the Tennessee Billboard Act