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
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. Continue Reading In Another Chapter of Denver Courthouse Plaza Battle, Tenth Circuit Reverses Contempt Order
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 as-applied First Amendment claim against the city.
In the case, HH entered into a ten-year lease on a property located in the city’s C-3 commercial zoning district. It had a problem, though: the C-3 district prohibits adult entertainment businesses, except with a variance. When the plaintiff applied for sign and building permits with the city’s Department of Business and Neighborhood Services, it was flagged as potentially disallowed by the zoning code. While HH submitted various materials to try to convince city staff that it was not an adult entertainment business as defined by the code, staff determined that the use was not permitted in the C-3 district. The plaintiff appealed to the city’s zoning appeals board, which voted 5-0 to affirm staff’s determination.
Instead of appealing the board’s decision to the Indiana state courts as provided by state statute, HH filed a federal First Amendment claim. It sought preliminary injunctive relief, but the district court denied the motion.
On appeal, the Seventh Circuit found that the city’s zoning scheme was constitutional under the secondary effects doctrine. The court held that the city’s regulation of sexually-oriented businesses, which allowed adult entertainment businesses in other zone districts (just not in the C-3 district), was properly aimed at preventing negative secondary effects of such establishments. The court further found that HH had several alternative avenues for communication, including in several other zoning districts around the city—including the zoning district directly across the street from Hustler Hollywood’s property. To the extent HH believed that city staff erred in classifying its business as an adult entertainment business, the Seventh Circuit advised that HH should have brought a state court appeal, as the classification of the business is not of First Amendment concern.
The Seventh Circuit’s decision in the case is yet another indicator that the secondary effects doctrine remains alive and well following Supreme Court cases that have walked back a more liberal content neutrality standard.
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.
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 Continue Reading Tenth Circuit: No Constitutional Need for Speedier Protest Permitting at Denver International Airport
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. Continue Reading Reason for the Season? D.C. Court Upholds Transit Authority’s Rejection of Religious Holiday Advertising
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
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. Continue Reading Court Grants Motion for Preliminary Injunction in California Sign Code Case
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
Last week, in a case that we reported on last summer involving protests near abortion clinics in Harrisburg, Pennsylvania, the Third Circuit Court of Appeals remanded the plaintiffs’ request for a preliminary injunction back to the district court, finding that the lower court misapplied the narrow tailoring analysis.
The facts of the case, which challenges Harrisburg’s protest-free buffer zone requirement around abortion clinics, can be found on our post from last fall. The buffer zone in question is a 20-foot zone extending from the entrance to a reproductive health care clinic in which congregating, patrolling, picketing, and demonstrating are unlawful. Following the district court’s denial of a preliminary injunction, the plaintiffs appealed that ruling to the Third Circuit. Continue Reading Harrisburg Abortion Clinic Case Remanded Back to District Court