“Love letters” will live a little longer in Oregon real estate transactions after the federal district court in Portland issued a preliminary injunction on a new state law banning the practice.

In a real estate market where multiple buyers compete for seemingly every home, creativity can afford an edge.  So it is that real estate agents often encourage “love letters” from buyers to sellers—those hand-crafted notes explaining (more or less) that the seller’s home is the stuff of dreams and would receive care and affection only if sold to the letter writers.

Evidence suggests these letters do in fact give buyers an edge.  It also suggests that they can inject discrimination against protected classes, as sellers, consciously or not, select buyers who share their own traits.  Worried that love letters were perpetuating biases and historic discrimination, the Oregon legislature banned the practice in 2021, in a law that limited brokers to exchanging nothing more than the “customary documents.”

Real estate brokerage Total Real Estate Group challenged the law in federal court, alleging that it abridged
Continue Reading Oregon Ban on Real Estate “Love Letters” Enjoined

Before Halloween in 2018, the Butts County Sheriff’s Office placed signs in the front yards of registered sex offenders in the County, warning against trick-or-treating there.  The next year, three registered sex offenders sued to enjoin County Sheriff Gary Long from placing the signs again, claiming that they constituted compelled speech in violation of the

In a midnight per curiam opinion that generated several concurring and dissenting opinions, the Supreme Court recently enjoined the state of New York from enforcing certain COVID-19 restrictions against religious institutions.  Although the injunction is limited to the pendency of the underlying appeal in the Second Circuit, it represents the Court’s most thorough treatment of pandemic-related restrictions on religious exercise to date.  It also marks an about-face from Chief Justice Roberts’  solo concurrence to the Court’s denial of a similar application for injunctive relief earlier this year.  In May, the Chief Justice deferred to the coordinate branches in dealing with the pandemic.  Now, however, the full Court has grown more skeptical of pandemic restrictions affecting religious exercise, and lower courts will probably follow suit.

The facts are as follows:  New York has adopted a tiered system of pandemic restrictions.  The state applies those restrictions to a number of geographic districts based on the severity of the pandemic in those districts.  Restrictions for a “red zone” are more severe than those for a “yellow zone” and so on.  New York’s regulations also distinguish between “essential” and non-essential business, and further identify religious institutions among the various uses regulated.  Religious institutions are not an “essential” use, though they receive preferential treatment relative to other large, indoor gatherings.  In “red zones” no more than ten people may attend each religious service.  In “orange zones,” the regulations cap attendance at twenty-five, irrespective of building capacity.  “Essential” businesses, which include acupuncture clinics and liquor stores, face no such capacity restrictions.

The per curiam opinion (which legal writing analysts believe was authored by
Continue Reading Supreme Court Sides with Religious Institutions Against New York Restrictions on Worship Services

Legacy Church in Albuquerque, New Mexico. Source: Legacy Church.

Last week, in one of the first judicial decisions addressing a First Amendment challenge to state-level social distancing requirements, a federal judge in New Mexico has denied preliminary injunctive relief to a church.  This outcome differs from another recently-decided case in Kentucky, where a district court enjoined enforcement of a city restriction that applied exclusively to drive-in church services.

Like most other states, New Mexico has taken significant steps to combat the coronavirus.  These actions began on March 11 with the declaration of a state of emergency, and urging from public officials to avoid gatherings and non-essential travel, and to engage in social distancing.  On March 24, the state ordered non-essential businesses to close, and prohibited indoor gatherings of more than five people, with a special exemption for houses of worship.  That was followed on March 27 by an order for recent travelers to self-quarantine.  On April 6, the state issued another order, this time prohibiting outdoor gatherings, but again exempting religious worship.  With Passover, Ramadan, and Easter approaching, the governor and health department encouraged religious organizations to use online methods of outreach.  On April 11, the day prior to Easter, the state issued a modified no-gathering order, this time including religious organizations in its sweep.

Legacy Church, which has nearly 20,000 members and locations in Albuquerque, Rio Rancho, and Edgewood, livestreamed its Easter services, but did not prohibit members from attending services in person.  The church has indicated that it plans to continue to hold in-person services during the COVID-19 pandemic.  The church filed its lawsuit against the state and its Secretary of Health, on the evening of April 11, and on April 14, filed a motion for a temporary restraining order allowing Legacy to conduct in-person services.
Continue Reading Federal Court in New Mexico Denies Temporary Restraining Order in First Amendment Challenge to COVID-19 Restrictions

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.
Continue Reading Texas City’s Banner Sign Limitation Found Content Based, But Survives First Amendment Challenge

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.
Continue Reading Utah City’s Median Restriction Found Content Neutral, Constitutional

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.
Continue Reading Appeals Court Reverses Order Upholding Missouri Enclave’s One-Sign Rule

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