In 2021, the San Francisco International Arts Festival (“SFIAF”) and affiliated artist Nkechi Emeruwa were denied permits for two outdoor performance events due to city and state limitations on public gatherings implemented in response to the COVID-19 pandemic. Together, SFIAF and Emeruwa brought suit in federal district court against San Francisco Mayor London Breed claiming the denials were unconstitutional. Specifically, the plaintiffs sued Breed for violations of freedom of expression, equal protection, and due process under 42 U.S.C. § 1983. Even after filing three amended complaints, the plaintiffs’ constitutional claims were still insufficient to withstand dismissal.
Continue Reading Court Dismisses with Prejudice Complaint that Permit Denials were Unconstitutional
District Court Strikes Down Florida City’s Sign License Requirement
In a recent order on cross motions for summary judgment, a federal district court in Florida reiterated the high bar to upholding prior restraints on speech. Plaintiffs Florida Beach Advertising and its owner and operator David Duvernay were cited on three occasions for violating a section of the City of Treasure Island’s code that requires any person to obtain a license before displaying a sign, banner, or advertisement. They brought claims that the code violated the First Amendment—facially and as applied—and was preempted by state statute. Although the plaintiffs challenged the entire code, the court found they had standing only to challenge the specific section they were cited for violating. While the court quickly ruled for the City on the preemption challenge, it provided more robust analysis of the First Amendment claims.
Continue Reading District Court Strikes Down Florida City’s Sign License Requirement
Court Dismisses RLUIPA and Equal Protection Clause Case for Lack of Standing
A federal district court in Illinois recently denied a church’s preliminary injunction motion and dismissed its suit alleging that a zoning ordinance violates RLUIPA and the Equal Protection Clause. In all of its zoning districts, the Village of Homewood allows places of worship only as special uses. Because non-religious assembly uses are permitted by right in some districts, the Word Seed Church claimed that the ordinance substantially restricts its ability to obtain property in Homewood. Although the Church never sought the required special use permit, it filed suit alleging that the ordinance violates the equal terms, unreasonable limitations, and substantial burden provisions of RLUIPA and the Equal Protection Clause. The Church also moved for a preliminary injunction against enforcement.
Continue Reading Court Dismisses RLUIPA and Equal Protection Clause Case for Lack of Standing
Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural
Late last month, a federal district court in Washington, D.C. dismissed First Amendment and other constitutional claims filed against the District by a non-Black Christian group pertaining to the now-famous “Black Lives Matter” mural painted on 16th Street.
Following widespread protests in U.S. cities in response to the death of George Floyd, a Black man, at the hands of white police officers in Minneapolis—and shortly after federal law enforcement officials cleared protesters in Lafayette Park with tear gas to allow for a photo opportunity for President Trump—D.C. Mayor Muriel Bowser directed the D.C. Department of Public Works to paint the words “Black Lives Matter” in large yellow letters on 16th Street. The mural, which is in close proximity to the White House, was widely acknowledged as expressing support for protesters and the Black community and in protest of actions taken by the President.
Continue Reading Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural
Billboard Company’s Challenge to Madison, Wisconsin Sign Code Fails
This week, a federal district court in Wisconsin ruled that Adams Outdoor Advertising’s claims that the Madison sign ordinance is unconstitutional could not survive summary judgment. The ruling in the city’s favor is further support for the proposition that Reed v. Town of Gilbert does not upset longstanding commercial speech doctrine.
The Madison sign ordinance generally prohibits billboard advertising in most areas of the city. Where they are permitted, billboards are subject to strict regulation as to setback, height, sign area, and spacing between signs. The city also operates an exchange program, whereby owners of signs that are removed due to redevelopment can “bank” their sign area and obtain a permit in another area of the city. The city also prohibits digital signs.
Beginning in 2016, Adams Outdoor sought permits for billboards in the city. It first sought to avail itself of the sign exchange program with respect to one of its signs, but the city determined that the sign was not eligible for the banking program. Adams Outdoor then submitted 26 applications to the city in 2017 seeking to modify or replace existing billboards. The city denied 25 of the 26 permits on the grounds that the sign ordinance did not permit the modifications in question. Adams Outdoor appealed 22 of the denials to the city’s Urban Design Commission, while also filing a lawsuit in federal court. After the filing of the lawsuit, the city adopted a variety of amendments to its sign ordinance, to ensure that the ordinance complied with Reed.
Continue Reading Billboard Company’s Challenge to Madison, Wisconsin Sign Code Fails
Billboard Company Loses Suit Against Illinois Village
This past summer, the Seventh Circuit Court of Appeals found that a billboard company’s challenge to a billboard restriction in Bellwood, Illinois was mooted by the fact that the company lost its lease on the property that it intended to construct a billboard. The court affirmed dismissal of the company’s First Amendment, equal protection, and antitrust claims.
In 2005, Paramount Media obtained leasehold rights to a property in the village abutting I-290, a high-traffic interstate corridor outside of Chicago. Although it sought the necessary state permits for a billboard, it failed to seek permits from the village. In 2009, the village amended its sign code to prohibit new billboards. The village later amended the code again to allow billboards on village-owned property. Paramount then sought to lease village-owned property along the interstate, but was rebuked, as the village had leased its property to another billboard company.
Continue Reading Billboard Company Loses Suit Against Illinois Village
Pro Se Plaintiff Claims Victory Against Kansas Community In Sign Code Dispute
Earlier this month, a federal district court in Kansas awarded summary judgment to a plaintiff who claimed that the City of Williamsburg’s sign code violated the First Amendment.
The plaintiff, Eric Clark, placed several signs and other objects in a city right-of-way easement. The city issued a notice of violation, which set off a series of interactions between the city’s code enforcement officer and Clark, and Clark issued several letters to the city claiming various violations of his civil rights. Although the city desisted from further enforcement action, Clark, representing himself, filed a lawsuit against the city.
Continue Reading Pro Se Plaintiff Claims Victory Against Kansas Community In Sign Code Dispute
Architectural Review Ordinance Withstands First Amendment Scrutiny
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
First Amendment Challenge to New Orleans Mural Regulations Moves Forward
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
Federal Court Denies Preliminary Injunction in Boston Flag Case
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