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One of the plaintiffs’ billboards in Austin, Texas. Source: Reagan National Advertising.

Last week, the U.S. Fifth Circuit Court of Appeals issued a ruling that the City of Austin, Texas’s sign ordinance was content based and unconstitutional due to the fact it impermissibly distinguished between on-premises and off-premises signs.  The Fifth Circuit’s ruling follows a similar ruling by the Sixth Circuit in a challenge to a Tennessee state law governing billboards, and sets up the possibility of further confusion in the area of billboard regulation.

In the Austin case, two billboard companies sought permits to convert existing billboards to digital signs.  The city denied the permits on the ground that its sign code prohibits new off-premises signs (i.e. signs that advertise business or services not located on the property on which the sign is located) and that conversion of existing billboards to digital faces would change the technology of a nonconforming sign in violation of the code.  The billboard companies challenged the denial in state court.  The city removed the case to federal court.  During the pendency of the litigation, the city amended its sign code to allow the substitution of noncommercial messages on any commercial sign in the city.  Following a bench trial, the district court determined that the sign code was content neutral and denied the billboard companies’ request for declaratory judgment.
Continue Reading Austin, Texas Sign Ordinance Declared Content Based, Unconstitutional

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

Protesters near Planned Parenthood in Pittsburgh. Source: CBS Pittsburgh.

Last week, a federal district court granted summary judgment to the City of Pittsburgh, Pennsylvania in a long-running dispute over a buffer zone law applicable to protest activities outside of reproductive health facilities such as Planned Parenthood.  The court held that the city’s 15-foot buffer zone law was content neutral and narrowly tailored to a substantial governmental interest, and thus valid under the First Amendment.

Pittsburgh enacted its buffer zone law in 2005.  The initial buffer zone law initially imposed a 15-foot buffer zone around the entrance to a hospital or health care facility in which no person was permitted to congregate, patrol, picket, or demonstrate.  The buffer zone excepted public safety officers, emergency workers, employees or agents of the facility, and patients.  The law also imposed an eight-foot “personal” buffer zone around individuals.  In the eight-foot buffer zone, no person could approach an individual to provide a leaflet or to protest, where the individual was within 100 feet of a hospital or health care facility entrance.  The eight-foot personal buffer zone was struck down in the case of Brown v. City of Pittsburgh in 2009.  The 15-foot buffer zone remained in effect, but was challenged again in 2014 following the Supreme Court’s decision in McCullen v. Coakley, in which the Court struck down a Massachusetts law imposing a 35-foot buffer zone around health care clinics.  The plaintiffs in the case are religiously-motivated protesters who engage in protest activities around a Planned Parenthood facility in Pittsburgh.  In 2016, as we reported, the Third Circuit reversed the district court’s dismissal of the case.
Continue Reading District Court Finds in Favor of Pittsburgh Buffer Zone Law

A homeless individual’s sign in Slidell, Lousiana. Source: WWLTV.com.

This week, a federal district court in Louisiana granted a motion for summary judgment invalidating the City of Slidell’s law requiring panhandlers to register and wear identification before soliciting donations.  In a lengthy but thorough order, the court found the city’s law, which applied only to individuals seeking to solicit donations of money or services, content based and unconstitutional, and issued a permanent injunction against enforcement of the law.

The backstory of Slidell’s “panhandler ID” law starts in 2015.  Since then, the city received 70 complaints relating to panhandling and solicitation, but only 14 were “connected to an identifiable individual.”  Because of the difficulty of tracking down panhandlers who were violating city laws, the city council passed an ordinance containing certain registration and identification requirements.  Specifically, the ordinance required individuals to complete an application at least 48 hours prior to panhandling.  To complete the application, a person was to physically appear at the police department between 9:00 and 5:00 on a weekday, fill out the written application (which required listing an address, telephone number, email, and other identifying information), and show a photo identification.  After a group of indigent individuals sued the city over the law, the city removed the 48-hour waiting period and required issuance of a permit for up to 72 hours of panhandling following filing of a complete application.  The 72-hour permit can be extended for up to a year on certain conditions.
Continue Reading Louisiana Town’s “Panhandler ID” Law Struck Down

Last week, another local sign code was found content based and unconstitutional, this time in North Redington Beach, Florida.

A local business, Sweet Sage Café, was issued notices of violation for several alleged violations of the town’s sign code.  In response, the café filed First Amendment claims against the town, which is a small coastal community along the Gulf of Mexico.  The town’s sign code had several features of sign codes that are commonly understood to be unconstitutional post-Reed:

  • The town’s definition of “sign” had several arguably content based elements, including “Drawings of articles for sale on the premises that is related to the business and/or is intended to advertise or inform, rather than being merely aesthetic, shall be classified as a sign under this Chapter. The term does not include an official traffic control sign, official marker, national or state flags permitted by this Chapter, athletic scoreboards, or the official announcements or signs of government.”
  • The town exempted several types of signs from permitting on the basis of their message, including “national flags shown in accordance with the standards of the Adjutant General,” warning signs, murals, holiday decorations, memorial signs or tablets, garage sale signs, real estate open house signs, political campaign signs, “no trespassing” signs, and others.

The town issued notices of violation to Sweet Sage Café for a series of flip-flop sandal footprint decals
Continue Reading Florida Town’s Sign Code Found to Violate First Amendment

Wagner’s sign in Garfield Heights. Source: Cleveland Plain Dealer.

Earlier this month, the Sixth Circuit Court of Appeals upheld an Ohio district court’s decision to permanently enjoin the enforcement of the City of Garfield Heights’s sign code.  The court found that the sign code’s restriction of “political signs” to six square feet was content based and unconstitutional.

The case began in September 2011, when local resident Frank Wagner wanted to protest a local councilwoman’s support of traffic cameras and a waste disposal tax.  Wagner placed a sixteen-square foot sign in his front yard that called out the councilwoman. 
Continue Reading Ohio City Loses Political Sign Battle

The court ruled that signs like the one shown above are forced speech in contradiction of First Amendment rights of utility companies. Source: Newsday.

In a decision that could have far-reaching consequences, earlier this year, a federal court in New York found a town law requiring the placement of warning signs on utility posts violated the First Amendment as a content based restriction on noncommercial speech.

In 2014, the Town of North Hempstead, New York adopted a local law requiring warning signs on utility posts in the town.  The law came about following local opposition to the erection of a new overheard electricity transmission line through the town.  As part of the project, the Long Island Power Authority (LIPA) and PSEG Long Island LLC (PSEG) placed new utility poles
Continue Reading Court:  Utility Pole Warning Signs are Forced Speech in Violation of First Amendment

As organizers here in Denver make final preparations for PrideFest this weekend, we report on a case stemming from a similar event scheduled in Syracuse, New York.

A plaintiff who had been prevented from protesting Pride Week in Syracuse in both 2014 and 2015 filed a motion in federal court seeking a preliminary injunction to enjoin the city from restricting the plaintiff’s ability to demonstrate at the upcoming Pride Week festival.  In 2014 and 2015, the plaintiff positioned himself on the sidewalk immediately adjacent to the festival’s entrance with a banner and a voice amplifier, and attempted to “explain[] [his] beliefs to those nearby.”  However, each year, city police officers approached the plaintiff and asked him to move across the street from the festival entrance.  According to video footage taken by the plaintiff, the police officer who approached the plaintiff in 2014 justified his request by stating that the festival organizers’ permit entitled them to exclusive use of the sidewalk area immediately adjacent to the festival entrance.  The police officer who approached the plaintiff in 2015 explained that the festival organizers were entitled to a 40-foot buffer on the area surrounding the festival entrance.
Continue Reading Court Grants Preliminary Injunction in Connection with Syracuse Pride Week Festivities; Buffer Zone Not a Narrowly Tailored Restriction on Speech