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 order upholding Rocky Mount, North Carolina’s sexually-oriented business regulations against a First Amendment challenge by an exotic dance club known as “The Gentlemen’s Playground.”  As this is a professional blog, we will refrain from further commentary on the combination of the parties’ names, but invite our readers to conjure up whatever creative taglines come to mind.

American Entertainers has operated the club in Rocky Mount since 2002.  The city requires that all sexually oriented businesses obtain a license.  After discovering that The Gentlemen’s Playground was not licensed, the city sought to enforce its ordinance against the owner.  In response, American Entertainers challenged the constitutionality of the ordinance under the First and Fourteenth Amendments.  The district court granted summary judgment for the city.  On appeal the Fourth Circuit affirmed in part and reversed in part.

American Entertainers asserted that the definition of “sexually oriented business” in the ordinance was overbroad, so as to encompass “conventional, mainstream arts and entertainment.”  The Fourth Circuit rejected the claim and found that the ordinance was adopted for a purpose unrelated to suppression of expression, i.e. to offset the deleterious consequences, like lower property values and increased rate of crime, that accompany exotic dance clubs.  The court further found that the licensing requirement materially advanced the city’s substantial interest.  According to the court, the licensing fee was an acceptable way for the city to counteract some of the administrative and enforcement burdens that exotic dance clubs bring to a city.  The court also found that the ordinance was narrowly tailored to this important interest, noting that American Entertainers offered no evidence that the license itself restricted free speech.

Additionally, American Entertainers challenged two of the license-denial provisions, including one that allowed the city’s police chief to deny a license if the business would not comply with “all applicable laws,” and another that prohibited any applicant under twenty one years old from obtaining a license to operate a sexually oriented business.  The appeals court held that the provision allowing denial for violation of applicable laws was an unconstitutional prior restraint.  It failed to limit the phrase “applicable laws” and was susceptible to the chief of police creating trivial reasons to deny a license.  Ultimately, the court remanded this issue to the district court to determine whether and to what extent this provision is severable from the rest of the ordinance.

Finally, the plaintiff argued that the age restriction infringed upon equal protection and the First Amendment right to freedom of expression.  However, because the equal protection clause of the Fourteenth Amendment does not recognize age as a suspect class, the age restriction needs only to be rationally related to the city’s interest.  The court had no difficulty reasoning that because alcohol is typically served at exotic dance venues, the age restriction was rationally related to the city’s interest in ensuring the business owners of sexually oriented businesses are of legal drinking age.  Therefore, the court affirmed the district court’s denial of the Equal Protection challenge.

American Entertainers, L.L.C. v. City of Rocky Mount, 888 F.3d 707 (4th Cir. 2018).

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. Continue Reading A Mime, A Stick Balloon Artist, A Puppeteer, and Others Win in Ocean City Boardwalk Regulation Case

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 Uber rideshare services could not do the same. Vugo, Inc., a seat-back video advertising company, challenged New York City’s regulations on the ground that their distinction between taxis and other FHVs violated the First Amendment.  On the parties’ cross motions for summary judgment, the district court agreed.

The court reviewed the regulations under Central Hudson’s four-part commercial speech test.  Under that test, if the speech regulated is neither false nor unlawful (a component not at issue in this case) and the government can show a substantial interest to justify its regulation, the court then considers whether regulation directly advances the government’s interest and whether it is narrowly drawn and not more extensive than necessary to serve the interest.

On the second prong, the court agreed with New York City that its interest in regulating vehicle advertisements as annoyances to passengers was substantial—but beyond that point the city’s arguments fared worse.  Most problematic for the court was the city’s justification for allowing advertising in taxis but not other FHVs: that the advertisements allowed operators to offset the cost of expensive ride- and fare-monitoring equipment the city required taxis to maintain.  That justification for the distinction shared no relationship to the city’s concerns about passenger annoyances, however.  That is, the advertisements were equally annoying irrespective of whether they helped offset other costs.  And because the taxi exemption still allowed advertising for more than 370,000 daily trips, the court doubted that the distinction between taxis and FHVs advanced the city’s other stated interest in aesthetics.

The court also found the exemption lacking with respect to Central Hudson’s fourth prong.  Though it noted that the commercial speech test does not require cities to employ the least restrictive means to achieve their goals, it concluded New York City’s outright prohibition on advertising in FHV was far too broad.

The court’s suggested alternative: just let passengers turn the ads off.

View the complete decision here: https://law.justia.com/cases/federal/district-courts/new-york/nysdce/1:2015cv08253/448867/63/

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. Continue Reading Prohibition on Driveway Delivery of Unsolicited Materials Survives Intermediate Scrutiny of Sixth Circuit

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

Klyde Warren Park in Dallas. Source: klydewarrenpark.org

Last month, the Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment.  The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others.  To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles.  The riddles are intended to attract people to stop by and ask him about them.  The park rules prohibit structures larger than four feet by four feet without a permit.  Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park.  In 2015, he received a criminal trespass warning.  After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds. Continue Reading Restrictions on Structures in Dallas Park Upheld

Signs on the pedestrian overpass in Campbell, Wisconsin. Source: Milwaukee Journal.

Late last week, in a case that involved made-for-TV shenanigans by a local police officer, the Seventh Circuit Court of Appeals ruled that a town’s total ban on signs, flags, and banners within 100 feet of an interstate highway could survive with respect to overhead signs, but remanded the case for additional proceedings with respect to other parts of the ban.

Campbell, Wisconsin bans all signs, flags, and banners along interstate highways.  The town enacted its regulation after members of the community hung political protest banners containing messages commonly identified with the Tea Party on a pedestrian overpass over Interstate 90.

Following the enactment of the regulation, the local police began issuing citations to individuals displaying signs along the highway.  Some of the individual sign-posters took videos of the police issuing citations—including in response to the protesters’ display of American flags and other patriotic signs along the interstate highway.  Concerned about the videos, in an apparent attempt at vigilante justice, the local police chief posted the name and email address of one of the Tea Party sign-posters on same-sex dating and pornographic websites.  The police chief also took to local newspapers to accuse the man of failing to pay his taxes.  Continue Reading Amid Interstate Overpass Soap Opera, Seventh Circuit Says No Empirical Evidence Required to Support Sign Regulation

Day laborers in Oyster Bay. Source: New York Times.

On Tuesday, the Second Circuit Court of Appeals ruled that the Town of Oyster Bay, New York’s prohibition on motor vehicle solicitation of employment violated the First Amendment.  The appellate court’s ruling affirms an earlier district court ruling that found similarly.  The plaintiffs in the case were two groups that advocate for the interests of day laborers.

Oyster Bay enacted an ordinance in 2009 that read, in relevant part, “It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.”  Oyster Bay’s ordinance was ostensibly an effort to curb day laborer solicitation. Continue Reading Second Circuit Affirms District Court Injunction Against Oyster Bay Solicitation Ordinance

Twin Oaks Park, the site of the photography dispute. Source: STLtoday.com

Last year, we reported on a case in Twin Oaks, Missouri, where a local wedding photographer, Josephine Havlak, challenged a town ordinance limiting commercial activity in a public park.  Late last month, the Eighth Circuit Court of Appeals affirmed the district court’s denial of the photographer’s motion for preliminary injunction, finding the ordinance content neutral and constitutional as applied to the photographer.

The facts of the case can be found on our post from last year.

On appeal, the Eighth Circuit first evaluated whether the plaintiff’s claim was an as-applied challenge or a facial challenge to the entire ordinance.  A facial challenge can result in invalidation of the entire ordinance, while an as-applied challenge only prohibits enforcement of the ordinance against the plaintiff.  Because the photographer failed to provide any evidence that third parties would be affected in a manner different from her, the court determined that Havlak’s challenge was an as-applied challenge.  Thus, the court only analyzed the ordinance’s application to the plaintiff. Continue Reading Eighth Circuit Upholds Denial of Preliminary Injunction in Photography Case

Sam Shaw and one of his signs. Source: Indiana Public Media.

Last week, a federal district court in Indiana ruled that the enforcement of the City of Bedford’s sign ordinance would not be enjoined, finding that the sign code was content neutral, supported by a significant governmental interest, and narrowly tailored.  The court’s denial of the preliminary injunction indicates that the ordinance is likely to survive constitutional scrutiny. Continue Reading Indiana Town’s Sign Ordinance Withstands Motion for Preliminary Injunction