New Jersey bars may now post signs this like this one. Source: steezdesign.com.

Last month, a federal court ruled that New Jersey’s prohibition on “BYOB” advertising—that is, advertising by drinking and entertainment establishments allowing patrons to bring their own alcoholic beverages—violated the First Amendment.  As a result of the court’s ruling, Garden State restaurants will now be allowed to post advertisements encouraging their patrons to bring their own wine and beer.

New Jersey law allowed patrons to bring wine or beer onto the premises of establishments that are not licensed to serve alcoholic beverages, but prohibited such establishments from advertising that it was permissible to do so.  An Atlantic City nightclub, Stiletto, filed suit in federal district court against Atlantic City and the state, seeking to invalidate the state law.  Stiletto wished to advertise that patrons could bring their own beverages to the nightclub. Continue Reading New Jersey Prohibition On “BYOB” Advertising Found Unconstitutional

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).

An adult business in Louisiana. Source: Facebook.

Last month, the federal Court of Appeals for the Fifth Circuit invalidated a Louisiana statute prohibiting nude erotic dancing by 18 to 21-year-old women, finding that the law was too vague and thus violated the First Amendment.  The law was passed by the Louisiana legislature in 2016, and applied to locations that serve alcoholic beverages in connection with nude dancing.  Erotic dancers were previously required to be at least 18 years of age, and state law—both before and after the 2016 law—did not permit total nudity.

The court addressed the law as a content neutral regulation of expressive conduct, in line with Fifth Circuit precedent requiring adult business regulations to be analyzed under intermediate scrutiny.  The court analyzed the law under the four-part standard for determining the constitutionality of regulations of expressive conduct under United States v. O’Brien.  The court reversed the district court’s conclusion that the law was not narrowly tailored, on the grounds that Louisiana state courts had limited the act’s application beyond its plainly legitimate sweep.  Thus, the law was tailored to the state’s interest in reducing negative secondary effects associated with adult entertainment establishments.  The court went on, however, to find that the law was unconstitutionally vague.  Specifically, the court found that the law in question, which prohibited exposure “to view” of the dancers’ breasts and buttocks, did not clearly prohibit specific conduct.  On these grounds, the court invalidated the statute.

While this case does not deal with local regulations (which are generally the subject of our blog), it provides further direction to local governments addressing adult entertainment businesses.  Specifically, local governments need to clearly identify the type of conduct that is permissible in adult entertainment establishments, and should not rely on state laws that might not be sufficiently specific in that regard.

Doe I v. Landry, 905 F.3d 290 (5th Cir. 2018).

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

Tents along Lake Shore Drive in Chicago. Source: Chicago Tribune.

Earlier this month, in a case challenging the denial of permits to erect a homeless “tent city” in front of a former elementary school in the Uptown neighborhood of Chicago, a federal magistrate judge dismissed the organizers’ First Amendment claim.  While one count of the plaintiffs’ complaint will move forward, the order dismisses all of the plaintiffs’ federal claims.

Uptown Tent City Organizers and its leader, Andy Thayer, sought a permit from the City of Chicago to establish a tent city in the former elementary school site.  In 2016, several homeless people had resided at the site, but the city fenced it off and the homeless people moved to various locations under viaducts along the city’s famed Lake Shore Drive.  The plaintiff filed claims in state court challenging the city’s denial of the permit, and the city removed the case to federal court.  The plaintiffs lost a motion for preliminary injunction, and subsequently amended their complaint to add First Amendment free speech and assembly, Eighth Amendment cruel and unusual punishment, Fourth Amendment illegal seizure, Fifth Amendment taking, and various state law claims.  Continue Reading Homeless “Tent City” Is Not Expressive Conduct Protected by the First Amendment, Says Federal Court

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

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

Last week, in a case we previously covered here, a federal district court in Colorado considered whether plaintiffs have standing to seek permanent injunctive relief when the defendant has stipulated that it has no intention of enforcing a restriction on expressive conduct.

In Verlo v. City and County of Denver, plaintiffs desired to distribute leaflets regarding jury nullification in the plaza outside of Denver’s Lindsey-Flanigan Courthouse.  However, the Colorado Second Judicial District, which operates in the courthouse, issued an order essentially prohibiting all expressive activities in the courthouse plaza.  The City and County of Denver, the entity responsible for enforcing the order, stipulated that it would not do so.  Furthermore, the city stipulated that it would not interfere with plaintiffs’ peaceful distribution of leaflets in the plaza.  Notwithstanding the stipulation, plaintiffs sued the city and the Colorado Second Judicial District, claiming that the order was an unconstitutional restriction on their First Amendment rights.  In an earlier decision, the federal district court granted plaintiffs’ motion for preliminary injunction, barring enforcement of the order. Continue Reading Denver Courthouse Case Continued: Plaintiffs Lack Standing

Nightclub operators challenged Wickliffe, Ohio’s nightclub ordinance, which required permits for the operation of for-profit nightclubs, defined by the ordinance as places “to engage in social activities such as dancing; the enjoyment of live or prerecorded music; the serving of food and beverages; all of which are provided for a consideration that may be included in a cover charge or included in the price of the food and beverage.”  The nightclub operators claimed that the ordinance limited the right to assembly.  The court held that the permitting of businesses is not a regulation of expression or assembly, even though some First Amendment-protected activity might be implicated in an attenuated manner.  The court also found that the permitting requirement was not overbroad because it did not reach a substantial amount of protected expression or other protected conduct.

Miller v. City of Wickliffe, No. 1:12-CV1248, slip op., 2015 WL 9304665 (N.D. Ohio Dec. 21, 2015)

Panama City, Florida passed five ordinances aimed at reducing the impacts of spring break revelers in the popular Gulf Coast tourist destination.  One of the ordinances limited the hours of alcoholic beverage sales during the month of March, while others limited possession or consumption of alcohol in commercial parking lots, on City right-of-ways, and on the beach.  Several entertainment businesses filed suit against the City, including with First Amendment Free Speech claims.  The federal district court assumed that the conduct in question was speech, but found that the ordinances in question were justified without reference to the content of the speech in question, and were proper time, place, and manner restrictions that provided ample alternative channels for communication of the entertainment.  The court additionally found that the City had relied on adequate evidence of criminal activity and other antisocial behavior in enacting the ordinances.  The court denied the plaintiffs’ motion for a preliminary injunction.

Funtana Vill., Inc. v. City of Panama Beach, No. 5:15CV282-MW/GRJ, slip op., 2016 WL 375102 (N.D. Fla. Jan. 28, 2016)