There is quite the fervor among certain American parents about the teaching of critical race theory in public schools. In a recent case out of Missouri, Judge Stephen Clark granted an injunction in favor of one such group of parents. Brooks v. Francis Howell Sch. Dist., 4:22-CV-00169-SRC, 2022 WL 1185147 (E.D. Mo. Apr. 21,
limited public forum
Fifth Circuit Remands in Texas Capitol Rotunda Display Case
Earlier this month, the Fifth Circuit Court of Appeals vacated a lower court’s summary judgment order in order favor of a non-theist group that sought to place a nonreligious display in the rotunda of the Texas state capitol during the holiday season. The lower court found that the state, in denying the group’s display, had engaged in viewpoint discrimination. However, the court found that the order granting retrospective relief was improper, but directed the lower to court to consider the group’s claim for prospective relief and reinstated its claim that the state’s regulations constituted an impermissible prior restraint.
We reported on this case in 2017. The facts of the case can be found on our earlier post. Since our last report on the case, the district court entered a declaratory summary judgment in favor of Freedom From Religion Foundation, finding that Texas Governor Greg Abbott’s and Texas State Preservation Board Executive Director Rod Welsh’s interference in the matter constituted viewpoint discrimination. However, the district court denied summary judgment on the group’s Establishment Clause claim and a claim against Abbott in his individual capacity.…
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Appeals Court Affirms District Court Ruling in Favor of Pennsylvania Animal Rights Activists
In a case that we reported on previously, the Third Circuit Court of Appeals has entered a ruling in favor of a group of animal rights activists that wished to protest the Barnum and Bailey Circus in a government-owned convention center and arena in Wilkes-Barre, Pennsylvania.
The facts of the case can be found in our earlier posts. At issue on appeal were questions of whether the government could limit the area allowed for protests at the arena, whether the protesters could be prohibited from using profane language, and whether the convention center could prohibit the use of sound amplification.
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Federal Court Denies Preliminary Injunction in Boston Flag Case
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.
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In Another Transit Advertising Case, Federal District Court Upholds “No Religion” Policy
In a decision last month, an atheist group lost its challenge to an advertising policy promulgated by the transit system for Lackawanna County, Pennsylvania, COLTS, that prohibited, among other things, religious messages. Following a trial, a federal district court found in favor of the transit agency, on the grounds that its advertising space was a limited public forum and the policy was viewpoint neutral. The decision follows several recent decisions that have found transit advertising policies constitutional.
Beginning in 2012, the atheist group, the Freethought Society of Northeastern Pennsylvania, sought to place advertising on buses owned by COLTS. The Society’s initial advertising attempt was blocked by COLTS on the ground that its advertisement was controversial, in violation of the agency’s advertising policy. The transit agency rejected similar advertisements submitted in 2013 and 2014 as well, even after COLTS changed its advertising policy to more explicitly prohibit political or religious messages.
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Land of Enchantment? Court Says Display of Marijuana is First Amendment-Protected, But Time Will Tell Whether State Fair Can Prohibit It
Green chile is undoubtedly a popular product at the New Mexico State Fair. But can another “green” product—medicinal marijuana—be displayed at the state fair? That question now rests with a federal district court.
New Mexico allows vendors of food, medical, and other products to display their products in booths at the annual state fair. New Mexico Top Organics—Ultra Health, Inc., a medical cannabis company, sought to display its medical cannabis products at the fair, but New Mexico has a policy disallowing the display of drugs or drug paraphernalia at the fair. In 2016 and 2017, the state prohibited Ultra Health from displaying its products, or images of its products, at the fair. Ultra Health determined that, without images or examples of its products, it could not meaningfully participate in the fair, and it subsequently brought suit against several state fair officials, alleging violations of its free speech rights under the First Amendment.
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Animal Rights Activists Win Another Round in Circus Case
We previously reported on this case, wherein a group of animal rights activists sought to protest the Barnum and Bailey Circus outside of Mohegan Sun Arena in Wilkes-Barre, Pennsylvania. In 2016, the district court for the Middle District of Pennsylvania granted a preliminary injunction against the convention center’s protest policy, which required protesters to gather in two areas of approximately 500 to 700 square feet in the arena’s parking lot. The facts of the case are reported in our earlier blog post.
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Can University of Alabama control preacher’s access to campus sidewalks? 11th Circuit: Roll Tide.
The concrete pathways at the corner of University Boulevard and Hackberry Lane in Tuscaloosa, Alabama, may look and quack like
sidewalks, but as constitutional matter, the Eleventh Circuit considers them something less: an extension of the University of Alabama campus. In a recent decision, that circuit concluded the sidewalks were not a “traditional public forum” within which the Constitution confines government control of speech and other demonstrations, but rather a “limited public forum” to which the University of Alabama could constitutionally control access. The practical result? The unlicensed street preacher who sued ‘Bama won’t get a preliminary injunction against the university’s grounds-use policy.
The plaintiff preacher,…
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Eighth Circuit Upholds Lincoln, Nebraska Anti-Leaflet Policy
Last week, a federal appeals court upheld an order granting summary judgment to the City of Lincoln, Nebraska in a case involving a prohibition on leafleting activity outside of the city’s basketball arena. In the decision, the court determined that the plaza outside of the arena was a nonpublic forum, and that the city’s regulation met the basic requirement of reasonableness for regulations of speech in a nonpublic forum.
In 2010, Lincoln and the University of Nebraska created a joint agency to redevelop a portion of the city and to construct a new athletic arena for the university’s sports teams. In connection with the redevelopment, new pedestrian areas were constructed, including a plaza immediately outside of the arena. The city entered into a private management agreement allowing a concessionaire to manage and operate the arena and surrounding property. After the arena opened in 2013, the concessionaire, SMG, adopted a policy establishing the plaza outside of the arena as a nonpublic forum, and specifically reserved use of the plaza for tenants of the arena. Other pedestrian areas outside of the plaza were designated for public uses.
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Seventh Circuit Upholds Preliminary Injunction in “Higher Society” Case
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.
Last week, the Seventh Circuit Court of Appeals upheld a preliminary injunction preventing an Indiana county from denying a marijuana advocacy organization’s request to demonstrate. We first reported on this case last December. As a refresher, the Higher Society of Indiana is a non-profit organization currently lobbying for “full legalization of Cannabis in Indiana.” In 1999, the Tippecanoe County board declared the courthouse grounds a “closed forum,” and enacted the following policy for those seeking demonstration approval on the grounds:
Only displays and events sponsored and prepared by a department or office of county government will be allowed in the windows of the Tippecanoe County Office Building or on the grounds of the Tippecanoe County Courthouse. Said displays and events shall be scheduled through the Board of Commissioners of the County of Tippecanoe.
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