Earlier this year, the federal Court of Appeals for the Eleventh Circuit upheld a district court’s denial of a preliminary injunction requested by a street preacher who alleged that a county government had infringed upon his First Amendment rights.
Adam LaCroix is a street preacher who discusses “Biblical principles of sexual morality” outside public venues
Late last month, a federal district court in Washington, D.C. dismissed First Amendment and other constitutional claims filed against the District by a non-Black Christian group pertaining to the now-famous “Black Lives Matter” mural painted on 16th Street.
Following widespread protests in U.S. cities in response to the death of George Floyd, a Black man, at the hands of white police officers in Minneapolis—and shortly after federal law enforcement officials cleared protesters in Lafayette Park with tear gas to allow for a photo opportunity for President Trump—D.C. Mayor Muriel Bowser directed the D.C. Department of Public Works to paint the words “Black Lives Matter” in large yellow letters on 16th Street. The mural, which is in close proximity to the White House, was widely acknowledged as expressing support for protesters and the Black community and in protest of actions taken by the President.
Continue Reading Court Dismisses Claims Against D.C. Over “Black Lives Matter” Street Mural
Late last month, a district court in Pennsylvania entered an order denying preliminary injunctive relief in a First Amendment case filed by a group of homeless advocates seeking to raise awareness of homelessness in Philadelphia.
The case involves three homeless encampments at locations on city- and state-owned properties near Philadelphia’s Center City. The encampments started in the summer of 2020, and over 200 people reside in them. The plaintiffs in the case alleged that the encampments are protests relating to city policies toward the homeless. In July, the city provided notice that it would sweep and remove the encampments on or before August 18. On August 17, the plaintiffs filed their claim in federal district court and moved for a temporary restraining order and preliminary injunction.
Continue Reading District Court Denies Preliminary Injunction in Philadelphia Homeless Encampment Case
This post was authored by Otten Johnson summer associate Laura Salter. Laura is a rising third-year law student at the University of Colorado Law School.
In late May, the U.S. Supreme Court denied a Church’s application for injunctive relief from California’s temporary restrictions on religious gatherings in South Bay United Pentecostal Church v. Newsom. Governor Newsom’s executive order, which parallels mandates issued in several states since March, limited both religious and secular public gatherings in an attempt to curb the spread of COVID-19. The executive order also allowed certain businesses to remain open–for example, grocery stores and hardware stores.
The order temporarily capped worship service attendance at 25% of building capacity or 100 attendees, whichever is lower. The applicants in South Bay filed suit under the Free Exercise Clause of the First Amendment, contending that secular activities impacted by the order, such as retail shopping or on-site office work, were afforded more generous occupancy caps than places of worship, and that the discrepancy amounted to unjustified and unconstitutional religious discrimination. The Ninth Circuit Court of Appeals had previously denied the church’s application for an injunction pending appeal, after the district court in the case denied the plaintiff’s motion for a temporary restraining order. The church sought a temporary injunction from the Supreme Court, which would have the effect of staying the executive order while the case was being litigated.
Continue Reading Supreme Court Denies Church’s Application for Injunctive Relief in First Amendment Challenge to COVID-19 Restrictions
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
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
In a case we reported on last year, the Sixth Circuit Court of Appeals reversed the district court’s denial of a preliminary injunction in a case involving protests outside of a Planned Parenthood location in a Memphis, Tennessee business. The case previously turned on the fact that the street in front of the clinic was a private street. The district court had determined that, because the street was private, it could not be a public forum in which anti-abortion protests could take place.
The Sixth Circuit’s decision, issued yesterday, turned on the fact that the private street in question was “physically indistinguishable” from adjacent public streets. The court reasoned that, because the private street was paved and had no signage indicating that it was privately-owned, a reasonable member of the public would likely consider the street public. Thus, the court classified the street as a traditional public forum. The court was also swayed by the fact that there appeared to be a dedication of the street on the subdivision plat for the business park in question, and that the public had impliedly accepted the street as a public street through public use of the street. The court went on to apply strict scrutiny (although it did not conduct any analysis as to whether the restrictions on the street’s use were content based), and reversed the district court’s order.
Continue Reading Sixth Circuit Reverses Denial of Preliminary Injunction in Memphis Planned Parenthood Case
This blog post was authored by Alexandra Haggarty, a summer clerk with Otten Johnson. Alex is a rising 3L at the University of Colorado Law School.
A federal judge in North Dakota recently granted a temporary restraining order to enjoin the City of Mandan from enforcing a content-based ordinance regulating murals and signs.
The ordinance requires building owners to obtain a permit before displaying a sign or figurative wall mural. A commission reviewing applications makes decisions based on guidelines and regulations, including those prohibiting murals that are commercial, have words as a dominant feature of the art, have political messages, or are on the front of the building.
The Lonesome Dove, a saloon that’s been a fixture on a main road for twenty-eight years, had until recently only decorated its exterior with beer ads. Most recently, it had a Coors Light logo painted on the front wall. Although the saloon never sought a permit for the logo, it was never cited for violation. Seeking to reinvigorate its exterior, the saloon – not knowing it needed a permit – painted a 208 square-foot Western-themed “Lonesome Dove” mural on the front of the building in 2018.
Continue Reading North Dakota City’s Mural Regulations Enjoined By Federal Court
Fewer than six months after it was enacted as an “emergency” measure, a Cincinnati ordinance singling out billboards for special taxes has succumbed to a constitutional challenge. The ordinance, which met legal headwinds from the start, transparently aimed to make life miserable for the city’s billboard operators and consisted of two primary components: (1) a special tax on revenues from billboard advertising and (2) a hush provision preventing those operators from telling advertisers about the tax. An Ohio judge wasted little time in finding both provisions unconstitutional and
Continue Reading Cincinnati “Billboard Tax” Found Unconstitutional Just Months After Enactment
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.
Continue Reading Federal Court Denies Preliminary Injunction in Boston Flag Case