Legacy Church in Albuquerque, New Mexico. Source: Legacy Church.

Last week, in one of the first judicial decisions addressing a First Amendment challenge to state-level social distancing requirements, a federal judge in New Mexico has denied preliminary injunctive relief to a church.  This outcome differs from another recently-decided case in Kentucky, where a district court enjoined enforcement of a city restriction that applied exclusively to drive-in church services.

Like most other states, New Mexico has taken significant steps to combat the coronavirus.  These actions began on March 11 with the declaration of a state of emergency, and urging from public officials to avoid gatherings and non-essential travel, and to engage in social distancing.  On March 24, the state ordered non-essential businesses to close, and prohibited indoor gatherings of more than five people, with a special exemption for houses of worship.  That was followed on March 27 by an order for recent travelers to self-quarantine.  On April 6, the state issued another order, this time prohibiting outdoor gatherings, but again exempting religious worship.  With Passover, Ramadan, and Easter approaching, the governor and health department encouraged religious organizations to use online methods of outreach.  On April 11, the day prior to Easter, the state issued a modified no-gathering order, this time including religious organizations in its sweep.

Legacy Church, which has nearly 20,000 members and locations in Albuquerque, Rio Rancho, and Edgewood, livestreamed its Easter services, but did not prohibit members from attending services in person.  The church has indicated that it plans to continue to hold in-person services during the COVID-19 pandemic.  The church filed its lawsuit against the state and its Secretary of Health, on the evening of April 11, and on April 14, filed a motion for a temporary restraining order allowing Legacy to conduct in-person services.
Continue Reading Federal Court in New Mexico Denies Temporary Restraining Order in First Amendment Challenge to COVID-19 Restrictions

An apartment advertised for short-term rental. Source: Creative Commons.

Last month, the federal Ninth Circuit Court of Appeals affirmed a district court’s denial of a preliminary injunction in a case initiated by HomeAway and Airbnb challenging the City of Santa Monica, California’s short-term rental regulations.  The plaintiffs in the case alleged violations of the First Amendment right to freedom of association.

Located on the Pacific coast and known as a tourist destination, by early 2018, Santa Monica had nearly 2,000 Airbnb or HomeAway listings—in a city of just 90,000 residents.  In response to the various problems created by short-term rentals, the city council passed an ordinance limiting short-term rentals to only “home-shares,” where the resident of the unit is present during the rental period.  Santa Monica also collects taxes on short-term rentals, requires licenses, and imposes disclosure obligations on hosts.  HomeAway and Airbnb filed a variety of challenges to the ordinance, and moved for a preliminary injunction, which was denied by the district court.
Continue Reading Ninth Circuit Affirms Denial of Preliminary Injunction in Santa Monica Short-Term Rental Case

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

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