First Amendment

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“This case is about a tree house.” Lepper v. Vill. of Babylon, 18CV7011JMAAYS, 2022 WL 939719, at *2 (E.D.N.Y. Mar. 29, 2022).  In a recent federal case out of Long Island, NY, plaintiffs John and Noelle Lepper and their minor children brought an action against the Village of Babylon and several Village officials. The plaintiffs asserted a slew of constitutional claims related to a tree house that the plaintiffs constructed on their property.  Their claims included, among others, First Amendment retaliation, violations of due process and equal protection, excessive fines in violation of the Eight Amendment, and conspiracy.

Mr. Lepper first began constructing a tree house in his yard after finding a hypodermic needle on the ground near where his children play.  The plaintiffs did not apply for a building permit prior to construction, despite the fact that the Village required building permits for tree houses, playgrounds, and outdoor gyms with lot areas of over 90 square feet.Continue Reading U.S. District Court Rejects Tree House Builder’s Federal Claims

A few years ago, Joshua Herridge was waiting outside of a ZZ Top concert in Montgomery County, Texas, but unlike most people gathering near the event hall, he was not there to see the band.  He was spreading his religious message by preaching, holding signs, and leafletting near a right-of-way outside of the large pavilion.  Herridge was eventually approached by officers and asked to relocate his activities to a corner across the street.

Herridge brought suit against Montgomery County and the County’s Fire Marshal in the U.S. District Court for the Southern District of Texas, claiming that the County’s attempt to relocate him from his street pulpit violated his rights under the First and Fourteenth Amendments.  The district court found for the County, holding that Montgomery had a significant interest in removing people engaging in activities which entice people to stop and listen during crowded events, since these holdups can cause bottlenecks in foot traffic which redirect pedestrians into active roadways and increase their likelihood of being struck by cars.  Because the County limited its policy to a single block, provided an alternative space for preaching across the street, and only enforced the policy during large events, the district court found that the County’s policy was narrowly tailored.  Herridge appealed to the Fifth Circuit.Continue Reading Fifth Circuit Remands Ban on Leafletting in Large Crowds

Allegations of a politically motivated lay-off were the subject of a recent U.S. District Court decision out of Gary, Indiana.  In Moore v. Calumet Township of Lake City, Plaintiff Marsha Moore filed suit against Calumet Township of Lake County and the Calumet Township Trustee, Kimberly Robinson, claiming that Defendants violated her First Amendment right to political association when they terminated her employment. 2:18-CV-106-TLS, 2022 WL 196366, at *1 (N.D. Ind. Jan. 21, 2022).  In 2014, Ms. Moore, who had worked in the Calumet Township Trustee Office since 1990, actively supported and campaigned for the reelection of her then-supervisor, Mary Elgin, to the Township Trustee position.  Ms. Robinson, one of the defendants, was the opposing candidate in the race.  On several occasions Ms. Robinson witnessed the plaintiff campaigning in an Elgin t-shirt, holding an Elgin sign, and displaying an Elgin bumper sticker on her car.
Continue Reading Political Association Claims Brought by Fired Government Employee Survive Summary Judgment

A mobile billboard in Miami, Florida. Source: mobilebillboardmiami.com.

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.

Earlier this month, the Ninth Circuit Court of Appeals in Lone Star Security v. City of Los Angeles revisited an earlier opinion regarding the content neutrality of ordinances in five Southern California cities that banned mobile billboard advertising.  In upholding the municipal bans a second time, the court held that the U.S. Supreme Court’s decision in Reed v. Town of Gilbert did not create heightened judicial scrutiny for restrictions on the “manner” of advertising.
Continue Reading Ninth Circuit: Local Restrictions on “Mobile Advertising” Still Content Neutral post-Reed