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University City, Missouri, home to Washington University and the Loop, a buzzy restaurant and theater district bordering the City of St. Louis, recently survived a challenge to its ordinance prohibiting activities that obstructed sidewalks and walkways.  That victory followed litigation against an earlier ordinance that had prohibited a much broader, vaguer set of activities, like “tending to hinder or impede the free and uninterrupted passage of … pedestrians” and remaining stationary in a public sidewalk while engaged in speech or performance.  The original ordinance also prohibited musical performances on private property without a permit.

Diners enjoying an evening in the Loop, presumably without a permit. (Image in the public domain.)

After several street performers challenged the original ordinance, the city amended it to add
Continue Reading St. Louis Suburb Wins Some, Loses Some in Challenge to Ordinance Regulating Sidewalk Obstructions and Street Performances

A billboard for Lion’s Den (not a truck trailer). Source: i70signshow.com.

In late April, in a case filed by an adult bookstore challenging the application of Kentucky’s Billboard Act to one of its advertisements, a federal judge of the Western District of Kentucky found the entire Billboard Act to violate the First Amendment.

Lion’s Den is a chain of adult “superstores” with locations along major highways throughout the Midwestern United States.  At one particular location along I-65 in Kentucky, Lion’s Den affixed one of its billboards to the side of a truck trailer, such that it was visible from the highway.  The Kentucky transportation department ordered Lion’s Den to remove the sign, on the grounds that it was not secured to the ground and located on a mobile structure and because the store lacked a permit for the billboard.  The basis for the state’s order was that the Kentucky Billboard Act prohibited the sign.  Under the statute, however, the regulations in question were only applied to off-premises signs.
Continue Reading Federal Judge Rules Kentucky’s Billboard Act Unconstitutional In Its Entirety

An Adams Outdoor billboard in Madison. Source: Madison.com.

This week, a federal district court in Wisconsin ruled that Adams Outdoor Advertising’s claims that the Madison sign ordinance is unconstitutional could not survive summary judgment.  The ruling in the city’s favor is further support for the proposition that Reed v. Town of Gilbert does not upset longstanding commercial speech doctrine.

The Madison sign ordinance generally prohibits billboard advertising in most areas of the city.  Where they are permitted, billboards are subject to strict regulation as to setback, height, sign area, and spacing between signs.  The city also operates an exchange program, whereby owners of signs that are removed due to redevelopment can “bank” their sign area and obtain a permit in another area of the city.  The city also prohibits digital signs.

Beginning in 2016, Adams Outdoor sought permits for billboards in the city.  It first sought to avail itself of the sign exchange program with respect to one of its signs, but the city determined that the sign was not eligible for the banking program.  Adams Outdoor then submitted 26 applications to the city in 2017 seeking to modify or replace existing billboards.  The city denied 25 of the 26 permits on the grounds that the sign ordinance did not permit the modifications in question.  Adams Outdoor appealed 22 of the denials to the city’s Urban Design Commission, while also filing a lawsuit in federal court.  After the filing of the lawsuit, the city adopted a variety of amendments to its sign ordinance, to ensure that the ordinance complied with Reed.
Continue Reading Billboard Company’s Challenge to Madison, Wisconsin Sign Code Fails

A marine mammal swims at Six Flags in Vallejo, California. Source: San Francisco Chronicle.

Last week, the federal Ninth Circuit Court of Appeals found that Vallejo, California’s requirement that a person obtain a permit before using a sound amplification is likely unconstitutional.  The court’s decision reverses the district court’s order denying the plaintiff’s motion for preliminary injunction, and allows the case to proceed to additional stages of litigation.

Joseph Cuviello is an animal rights activist in Vallejo who wished to protest alleged animal mistreatment at Six Flags Discovery Park, an amusement park.  Cuviello has been active in protesting Six Flags since 2006.  In 2014, Cuviello decided to begin protesting on a public sidewalk outside of the park, using a bullhorn.  Vallejo, however, requires a permit for the use of sound amplification devices, and the city imposes restrictions on the use of such devices.  Cuviello filed suit against the city, challenging the permit requirement as an unconstitutional prior restraint, and the ordinance as impermissibly vague and content based.  Cuviello eventually abandoned the latter arguments, and the court’s decision focused entirely on the prior restraint question.
Continue Reading Ninth Circuit Finds That Permit Requirement For Bullhorns Violates First Amendment

An Adams Outdoor billboard in Pennsylvania. Source: Adams Outdoor.

In a case that we’ve reported on previously, the Third Circuit Court of Appeals held last week that the Pennsylvania Department of Transportation’s rules pertaining to billboard permitting violate the First Amendment.  The court’s decision is yet another in a string of decisions from around the country making it more difficult for government to restrict the proliferation of off-premises signage.

To refresh our readers’ memory, Pennsylvania regulates billboards under its Outdoor Advertising Control Act of 1971.  That law prohibits the placement of billboards within 500 feet of a highway interchange or rest area, with an exception for official signs or on-premises “for sale or lease” signs.  The law also requires that a billboard advertiser obtain a permit from the state’s transportation department, but does not set forth a timeframe for such a permit to be processed.

Adams Outdoor, a billboard company, sought to install a billboard in Hanover Township, Pennsylvania.  After processing the permit application for over a year, the state’s transportation department  eventually denied the permit on the grounds that the sign violated the interchange restriction.  Adams challenged the interchange restriction and permitting procedures under the First Amendment, and also claimed that the billboard law was unconstitutionally vague.
Continue Reading Pennsylvania’s Billboard Rules Found to Violate First Amendment

Tents along Lake Shore Drive in Chicago. Source: Chicago Tribune.

Earlier this month, in a case challenging the denial of permits to erect a homeless “tent city” in front of a former elementary school in the Uptown neighborhood of Chicago, a federal magistrate judge dismissed the organizers’ First Amendment claim.  While one count of the plaintiffs’ complaint will move forward, the order dismisses all of the plaintiffs’ federal claims.

Uptown Tent City Organizers and its leader, Andy Thayer, sought a permit from the City of Chicago to establish a tent city in the former elementary school site.  In 2016, several homeless people had resided at the site, but the city fenced it off and the homeless people moved to various locations under viaducts along the city’s famed Lake Shore Drive.  The plaintiff filed claims in state court challenging the city’s denial of the permit, and the city removed the case to federal court.  The plaintiffs lost a motion for preliminary injunction, and subsequently amended their complaint to add First Amendment free speech and assembly, Eighth Amendment cruel and unusual punishment, Fourth Amendment illegal seizure, Fifth Amendment taking, and various state law claims. 
Continue Reading Homeless “Tent City” Is Not Expressive Conduct Protected by the First Amendment, Says Federal Court

In a case that we reported on earlier this year, a federal court in Pennsylvania has ruled that the failure to provide a deadline by which the government is required to make permitting decisions renders that state’s outdoor advertising law unconstitutional.  Nonetheless, PennDOT can remedy the problem by simply imposing internal processing timeframes.

The facts of the case can be found in our earlier post.

On cross-motions for summary judgment, the court found that the permitting provisions of the act violated the First Amendment.  Pennsylvania’s outdoor advertising law does not contain any deadlines by which the state must rule on a billboard permit application.  Under the Supreme Court’s rulings in City of Littleton v. Z.J. Gifts and Thomas v. Chicago Park District, a content based law must have a clear permitting timeframe in order to satisfy constitutional scrutiny.  The court determined that the Pennsylvania statute was content based, because it exempted “official signs” and “directional signs” from permitting.  As there was no timeframe required for the issuance of other permits, the court invalidated the permitting provisions of the statute.  Of course, PennDOT can remedy the constitutional violation by simply imposing internal permitting timeframes.
Continue Reading Lack of Permitting Timeframes in Pennsylvania Billboard Law is Unconstitutional, But There’s An Easy Fix

Last week, a federal district court in Nevada ruled on the City of Reno’s motion to dismiss several claims brought against it by a billboard company and landowner relating to the placement of off-premises billboards in the city.

The plaintiffs in the case are a billboard company called Strict Scrutiny Media (which perhaps implies the type of judicial review that the company wanted, but did not get, in this case) and the Independent Order of Odd Fellows Reno Lodge #14.  SSM obtained billboard leases at three sites owned by the Oddfellows, constructed signs on all three locations, and obtained permits for the construction of one of the signs.  In late 2016, the city informed SSM and Oddfellows that the permitted sign’s permit was invalid due to the fact that it was issued to a different sign operator, and also informed Oddfellows that two other signs that had been installed by SSM and Oddfellows were constructed without a permit in violation of the city’s code.  Oddfellows and SSM then challenged the city’s action, and also challenged the city’s ban on the erection of new, permanent off-premises signs and the city’s exemptions to permit requirements for certain temporary or permanent on-premises signs.
Continue Reading Court Allows First Amendment Claims to Move Forward in Reno Sign Code Case

Nashville Pride Festival. Source: Nashville Pride.

Late last month, a federal district court in Tennessee granted summary judgment to the Nashville metropolitan government in a case involving the rights of protesters at the 2015 Nashville Pride Festival, which is a celebration of LGBTQ rights and culture.

Nashville Pride Festival is held in the City’s Public Square Park.  In order to hold the festival in the park, Nashville required the organization Nashville Pride to obtain a permit.  The event was ticketed, such that only those with tickets could enter into the park.  The plaintiffs in the case, John McGlone and Jeremy Peters, believe that homosexuality is a sin.  They attended the festival in protest, but stayed outside the ticketed area.  A festival employee asked them to leave the area outside of the gate, as it was subject to Nashville Pride’s permit.  Eventually, the protesters were removed to a location on the other side of the street from the park.  This location was unsatisfactory to the plaintiffs, because they believed that their message would reach less people.
Continue Reading Court Upholds Relocation of Protesters at Nashville Pride Festival

“Sexy cops” patrolling the Las Vegas Strip. Source: loweringthebar.net.

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 month, street performers in the Ninth Circuit got a bigger tip than anticipated when the Ninth Circuit Court of Appeals reversed a Nevada federal district court’s order granting summary judgment to three Las Vegas police officers, where the police officers ticketed two street performers on the famous Las Vegas Strip.  In its ruling, the appeals court found that the street performers—who dressed up as “sexy cops” to take photos with tourists—could not constitutionally be required to obtain a business license for engaging in expressive activity and association.

Michele Santopietro is an actress turned street performer who occasionally dresses up as a “sexy cop” on the Las Vegas Strip.  In March of 2011, Santopietro and her colleague Lea Patrick performed as “sexy cops” on the Strip as they were approached by three individuals indicating a desire to take a photograph.  The “sexy cops” happily obliged.  Following the photograph, Patrick persistently reminded the three individuals that the “sexy cops” work for tips.  Unbeknownst to Santopietro and Patrick, the three individuals in question were real Las Vegas Metro police officers dressed down in street clothes.  Due to Patrick’s persistence and claim that the officer entered into a “verbal contract” to give a tip, the Metro police officers arrested the two women under Clark County Code § 6.56.030 which states: “It is unlawful for any person, in the unincorporated areas of the county to operate or conduct business as a temporary store, professional promoter or peddler, solicitor or canvasser without first having procured a license for the same.”
Continue Reading Las Vegas “Sexy Cops” Don’t Need a Business License, At Least For Now