A sign welcomes visitors to Bentley Manor in Shavano Park. Source: mytexashomeresource.com

It is a rare free speech case where a court finds a regulation content based, but still upholds the regulation.  That very scenario played out in a federal district court in Texas, when it upheld the City of Shavano Park’s sign regulation prohibiting certain banner signs.

Shavano Park, a suburb of San Antonio, has a sign code that controls the placement of signs on private property.  The code allows one temporary sign per residential lot, with some additional allowances when properties are for sale or during election seasons.  The code also allows the placement of banner signs in residential zoning districts, with some limitations.  These limitations include that such signs may be erected by a homeowners’ association, they may be placed at entrances to residential neighborhoods, no more than one banner sign is allowed per owner, and banner signs are only permitted in the week before the first Tuesday in October, which coincides with National Night Out.  The sign code’s stated rationale for its restrictions focuses largely on aesthetics.
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Last week, the Tenth Circuit Court of Appeals issued an order denying a motion by the plaintiff in the case of Evans v. Sandy City for an en banc rehearing.  In ruling on the motion, the court issued a revised opinion.  In the revised opinion, the court reaffirmed that Sandy City, Utah’s prohibition on sitting

The plaintiff in the case against Sandy City, Utah, who sought to overturn the city’s median restriction.

Earlier this summer, the Tenth Circuit Court of Appeals held that Sandy City, Utah’s restriction on sitting or standing in a street median of less than 36 inches in width met constitutional muster.  Although the regulation was principally aimed at addressing panhandling activity, the court found the regulation to be content neutral, affirming an earlier district court ruling in the case.  The court’s decision appears to offer an avenue for local governments to address safety concerns associated with panhandling, without treading on constitutionally unstable ground.

The Supreme Court’s 2015 decision in Reed v. Town of Gilbert resulted in the invalidation of many restrictions on panhandling in municipalities around the United States.  To get around the legal defects associated with panhandling prohibitions, municipalities—like Sandy City—have adopted general restrictions on sitting, standing, and remaining in street medians to achieve the same ends.
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One of the signs at issue in the case. Source: Riverfront Times.

In a case that we reported on around this time last year, late last month, the Eighth Circuit Court of Appeals reversed a federal district court’s ruling denying a motion for preliminary injunction against Bel-Nor, Missouri’s “one sign” rule.  The Eighth Circuit’s ruling means that the city will be temporary enjoined from enforcing the law.

The facts of the case are discussed in our earlier post.

The court of appeals had no problem finding that the city’s sign regulation violated the First Amendment.  The law allows just one freestanding yard sign, as well as one flag.  The definition of “flag” in the city’s code indicates that the object must be a “symbol of a government or institution,” thus drawing a distinction based on the message a speaker conveys.  Applying the Supreme Court’s holding in Reed v. Town of Gilbert, the court found the regulation was content based.  The court then found that the code was not narrowly tailored so as to pass muster under strict scrutiny.
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The Gentleman’s Playground in Rocky Mount, North Carolina. Source: Yelp

This post was authored by Otten Johnson summer associate Lindsay Lyda.  Lindsay is a rising third-year law student at the University of Colorado Law School.

A few weeks ago, the Fourth Circuit Court of Appeals affirmed a district court’s summary judgment

The Ocean City boardwalk. Source: Bill Price III, from Wikimedia Commons.

This post was authored by Otten Johnson summer associate Chelsea Marx.  Chelsea is a rising third-year law student at the University of Denver Sturm College of Law.

Just in time for summer, the federal district court in Maryland has determined that the show must go on for a group of performance artists challenging an ordinance restricting public performance on the Ocean City boardwalk.  In Christ v. Ocean City, which we first reported on last year, a federal district judge concluded that Chapter 62, a new ordinance limiting performance to designated spaces at designated times, was mostly unconstitutional.

The Ocean City Boardwalk Task Force hoped Chapter 62 would survive scrutiny after a lengthy history of successful First Amendment challenges to prior regulations of speech on the boardwalk.  The Mayor and City Council charged the five-member Boardwalk Task Force to draft a new ordinance addressing the “issues that had plagued the Boardwalk” with respect to public safety, traffic congestion, and managing competing uses for limited space.  A cast of eleven street performers, including a puppeteer, stick balloon artist, magician, mime, portrait sketch artist, and musician, filed suit asserting that Chapter 62 violated the First Amendment.

Further background and details of the ordinance are detailed in our earlier post.
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The U.S. District Court for the Southern District of New York recently declared unconstitutional New York City’s ban on advertising in vehicles other than exempted taxis.  Under the city’s program, medallion and certain other taxis could display advertising, including seat-back television content and advertising, but other for-hire vehicles (“FHVs”), like those used for Lyft and

Earlier this month, the Sixth Circuit vacated a preliminary injunction preventing Lexington-Fayette Urban County Government (the “City”) from enforcing Ordinance 25/2017 (the “Ordinance”), which would regulate where unsolicited written materials may be delivered. Here is what you need to know about the procedural posture of the case:  The Ordinance would allow delivery of unsolicited written materials in six specific locations around a person’s residence or business but would prohibit driveway delivery.  Plaintiff, Lexington H-L Services, Inc., d/b/a Lexington Herald-Leader, delivers The Community News free of charge to more than 100,000 households per week via driveway delivery.  In their motion for a preliminary injunction, Plaintiff claimed that the Ordinance would make their publication financially unfeasible and that it would violate the First Amendment if allowed to go into effect.  The lower court, after applying strict scrutiny analysis to the Ordinance, granted Plaintiff’s request for a preliminary injunction, finding Plaintiff was likely to succeed on the merits of its First Amendment claim.  The City timely appealed to the Sixth Circuit.
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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.
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