Preliminary injunction

The Planned Parenthood location on Virginia Cove in Memphis. Source: The Business Journals.

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.
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The mural at the Lonsome Dove. Source: Bismarck Tribune.

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. 
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Photo by Peter Kaminski, used pursuant to Creative Commons 2.0 license.

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
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Boston’s City Hall Plaza. The flagpoles can be seen on the right in the photo. Source: Boston Globe.

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.
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The Lindsey-Flanigan Courthouse in Denver. Source: CGL Companies.

Over the past couple of years, we’ve reported on a case involving pamphleteering activities on the plaza that lies outside of the Lindsey-Flanigan Courthouse here in our home city of Denver, Colorado.  Things have gotten interesting again, as the Tenth Circuit last month reversed a decision of the federal district court finding the City and County of Denver in contempt following its decision to arrest an individual for distributing literature on the plaza.

We’ll first bring our readers back up to speed.  This case involved the question of whether a group could lawfully distribute literature about jury nullification on the plaza.  The Second Judicial District, a state court, prohibited demonstrations and literature distribution on the plaza.  The plaza area is owned by Denver, and the state court is a tenant on the property.  Denver Police arrested a member of the pamphleteering group, which resulted in a First Amendment claim against the city and the state court.  Denver stipulated that the plaza was a public forum, and further stipulated that it would not enforce the prohibitions on literature distribution, but the Second Judicial District disagreed with Denver’s position.  The federal court then entered a preliminary injunction against the Second Judicial District, and dismissed Denver from the case.  A prior Tenth Circuit order upheld the preliminary injunction.  On a motion for permanent injunction, the court agreed with the Second Judicial District and found that the plaza was not a traditional public forum.
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A Hustler Hollywood store in Fresno, California. Source: KSFN.

Last month, the Seventh Circuit Court of Appeals affirmed a district court’s denial of an adult business’s motion for preliminary injunction against Indianapolis.  The appeals court found that the business, Hustler Hollywood (HH), was unlikely to prevail on the merits of its

Last week, the Tenth Circuit vacated a preliminary injunction preventing Denver International Airport from enforcing much of its public protest policy.  We reported on that injunction after it issued and now return to discuss its reversal on appeal.  In short, the unanimous appellate panel concluded that the airport could reasonably require a seven-day permitting period for protests, even if that requirement quashed most spontaneous demonstrations.

Denver International Airport’s Jeppesen Terminal

A bit of background, though, before we get any further: after the Trump administration unveiled its so-called “Muslim Ban”  (more formally, but less memorably, titled Executive Order 13769) suspending nationals from several predominantly Muslim countries from entering the United States, spontaneous protests broke out in airports nationwide.  Plaintiffs in this case joined in those protests at DIA, where
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A copy of one of the advertisements that the Archdiocese of Washington intended to place on WMATA buses. Source: Archdiocese of Washington.

The Catholic Church’s efforts to “Keep Christ in Christmas” have been stymied by a District of Columbia judge this holiday season.  Earlier this month, the federal district court in Washington rejected a request by the Archdiocese of Washington to enjoin the Washington Metropolitan Transit Authority’s enforcement of its transit advertising policy.  The Archdiocese wished to display, during the holiday season, an advertisement on WMATA transit vehicles that contained the language “Find the Perfect Gift” and a religious image.  The advertisement was intended to encourage readers to remember the religious underpinnings of Christmas.  WMATA rejected the advertisement because it violated the authority’s rule prohibiting advertising that advocates or opposes religion.
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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.
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One of the signs in question in the Baldwin Park litigation. Source: The Legal Lens.

Last month, a federal district court in California ruled that the City of Baldwin Park’s sign ordinance was likely unconstitutional, even after the city amended the ordinance amidst a legal challenge.  The code allowed property owners additional signage and flag displays during certain times of the year, including election season and around holidays, respectively, and allowed businesses to display additional signage during promotional events.

The case originated when community members, including individuals and business owners, displayed signs alleging corruption by a local politician.  Baldwin Park enforced its code, which prohibited the signs in question.  The individuals and business owners filed a First Amendment challenge.  The city then amended its code, and the amended code is now in question.
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