The City of Boston flies three flags in City Hall Plaza just outside the Boston City Hall: those of the United States, the Commonwealth of Massachusetts, and the City of Boston. From time to time, and at the request of civic groups, organizations, businesses, and others, Boston replaces its flag with another. The Pride Flag
Simi Valley, California, like many cities, bans mobile advertising displays on public streets. It also, however, exempts certain authorized vehicles from the general ban. The district court considered that scheme a permissible content-neutral regulation of speech and dismissed plaintiff Bruce Boyer’s complaint challenging its constitutionality.
Last month, the Ninth Circuit reversed in a published opinion reasoning that Simi Valley’s authorized vehicle exemption amounted to a speaker-based—and in turn, content-based—regulation. Following that conclusion, it returned the case to the district court for further proceedings to determine whether
Continue Reading Ninth Circuit Holds California City’s Mobile Advertising Ban Content-Based, Subject to Strict Scrutiny
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
Since the rest of the world seems to be taking a break from regular activities amid the COVID-19 outbreak, we’ll take a break from our regularly-scheduled programming to offer our view of the pandemic through the lens of our favorite topic: First Amendment rights.
China’s response to the outbreak in Wuhan is well-documented. Mandatory quarantines, citywide shutdowns, prohibitions on gatherings, and other such actions were implemented swiftly. We in the United States have not yet seen such a response, and there’s no telling whether such a response will be needed. But because we enjoy more individual liberties than do Chinese citizens, what might be the legal consequences of some of these actions? We offer some thoughts below for state and local regulators:
Continue Reading COVID-19 and the First Amendment: Thoughts for State and Local Regulators
In a case involving violations of nearly every First Amendment protection for speech in public places, a federal court recently enjoined enforcement of new Chicago restrictions on speech in the city’s famed Millennium Park. Evidently hoping to safeguard quiet contemplation of the “Bean” (pictured here) and all but a few other areas of the park, the City enacted an ordinance prohibiting a range of speech.
The ordinance outlawed conduct “that objectively interferes with visitors’ ability to enjoy the Park’s artistic displays” and the “making of speeches and the passing out of written communications” outside a few specified areas. It did not, however, provide any guidance as to how to enforce those prohibitions—leading to an astonishing interaction in which a park employee explained that religion could not be discussed in the park. On February 20th, the U.S. District Court for the Northern District of Illinois concluded these provisions violated the First Amendment and issued a preliminary injunction barring their enforcement.
The parties challenging the ordinance were a group of college-student evangelists and petition circulators whom the city had rebuffed in their attempts to champion their causes in Millennium Park. Among Chicago’s various attractions, the park held special appeal for the challengers because
Continue Reading Federal Court Enjoins Chicago Park Speech Regulations
In a case that we’ve reported on previously, the Third Circuit Court of Appeals held last week that the Pennsylvania Department of Transportation’s rules pertaining to billboard permitting violate the First Amendment. The court’s decision is yet another in a string of decisions from around the country making it more difficult for government to restrict the proliferation of off-premises signage.
To refresh our readers’ memory, Pennsylvania regulates billboards under its Outdoor Advertising Control Act of 1971. That law prohibits the placement of billboards within 500 feet of a highway interchange or rest area, with an exception for official signs or on-premises “for sale or lease” signs. The law also requires that a billboard advertiser obtain a permit from the state’s transportation department, but does not set forth a timeframe for such a permit to be processed.
Adams Outdoor, a billboard company, sought to install a billboard in Hanover Township, Pennsylvania. After processing the permit application for over a year, the state’s transportation department eventually denied the permit on the grounds that the sign violated the interchange restriction. Adams challenged the interchange restriction and permitting procedures under the First Amendment, and also claimed that the billboard law was unconstitutionally vague.
Continue Reading Pennsylvania’s Billboard Rules Found to Violate First Amendment
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
Last week, a three-judge panel of the Eleventh Circuit Court of Appeals held that a 75-year old cross displayed in Pensacola, Florida’s Bayview Park was a violation of certain individuals’ constitutional rights under the First Amendment’s Establishment Clause, which prohibits the establishment of religion. But the court’s decision was based entirely on its “prior panel precedent” rule—meaning that the court was bound by a 35-year old decision on nearly identical facts—and the panel openly questioned the correctness of its decision.
Three individuals, represented by the American Civil Liberties Union, brought the case in federal district court in Florida. They alleged that they felt offended by the presence of the cross in the park. Pensacola moved to dismiss on standing grounds, arguing that the plaintiffs’ injuries were sufficient ethereal so as not to pass muster under current-day standing doctrine. The parties also filed cross-motions for summary judgment on the question of whether the cross violated the Establishment Clause.
Continue Reading Appeals Court Finds That Concrete Cross Violates Establishment Clause, But Is Reversal In Sight?
[The following case centered on an ethnic slur and this post therefore includes two references to that slur.]
Reaffirming the First Amendment’s virtual prohibition on viewpoint discrimination, the Second Circuit recently held that New York state could not prohibit a vendor from participating in public lunch program simply because its name and menu featured ethnic slurs.
The case emerged from a dispute over access to the publicly owned Empire State Plaza in Albany, New York. After years of contracting with a single vendor to supply food for a daily lunch program hosted in the plaza, New York’s Office of General Services (OGS) chose instead to feature a rotating line-up of food trucks—similar to Civic Center Eats program in Denver’s Civic Center Park—subject to a permitting regime. Plaintiff Wandering Dago, Inc. (“WD”), which operates a food truck with the same name, applied to OGS for a vending permit. Though the application proceeded normally at first, when OGS officials realized the term
Continue Reading Offensive Name Not a Constitutional Reason to Ban Food Truck from Public Lunch Programs, Says Second Circuit
This post was authored by Otten Johnson summer law clerk David Brewster. David is a rising third-year law student at the University of Denver Sturm College of Law.
Late last month, the U.S. Supreme Court handed down two opinions addressing separate free speech issues. While neither decision related specifically to local government regulations, both hold some important lessons for local government practice, as we outline below.
In Packingham v. North Carolina, the Court struck down a North Carolina law making it a felony for registered sex offenders “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.” Gerard Packingham, having previously been convicted of “taking indecent liberties with a child,” was cited for violating the law when he posted a statement on his Facebook page about a “positive experience in traffic court.”
At trial, Packingham filed a motion to dismiss on the grounds that the charge violated his First Amendment free speech rights. The trial court denied Packingham’s motion, and he was subsequently convicted. Upon appeal, the Court of Appeals of North Carolina struck down the law on First Amendment grounds, explaining that “the law is not narrowly tailored to serve the State’s legitimate interest in protecting minors from sexual abuse.” The North Carolina Supreme Court reversed, holding the law constitutional “in all respects,” and explaining that the law was carefully tailored to prevent sex offenders from accessing “only those Web sites that allow them the opportunity to gather information about minors.”
Continue Reading U.S. Supreme Court Issues Rulings in Two First Amendment Cases