Earlier this month, the Fifth Circuit Court of Appeals vacated a lower court’s summary judgment order in order favor of a non-theist group that sought to place a nonreligious display in the rotunda of the Texas state capitol during the holiday season.  The lower court found that the state, in denying the group’s display, had engaged in viewpoint discrimination.  However, the court found that the order granting retrospective relief was improper, but directed the lower to court to consider the group’s claim for prospective relief and reinstated its claim that the state’s regulations constituted an impermissible prior restraint.

We reported on this case in 2017.  The facts of the case can be found on our earlier post.  Since our last report on the case, the district court entered a declaratory summary judgment in favor of Freedom From Religion Foundation, finding that Texas Governor Greg Abbott’s and Texas State Preservation Board Executive Director Rod Welsh’s interference in the matter constituted viewpoint discrimination.  However, the district court denied summary judgment on the group’s Establishment Clause claim and a claim against Abbott in his individual capacity.
Continue Reading Fifth Circuit Remands in Texas Capitol Rotunda Display Case

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

Bourbon Street in New Orleans. Source: neworleans.com.

This week, a federal district court denied the City of New Orleans’s motion to dismiss a First Amendment claim challenging the application of the city’s short-term rental law.

Plaintiff Dawn Adams Wheelahan challenged the city’s short-term rental regulations on a variety of grounds.  The city had revoked her license to rent her property on a short-term basis, in part for failing to display her license on the property or in her advertising of the property for short-term rental.  Wheelahan brought several claims against the city, including a Fifth Amendment takings claim, an Eighth Amendment excessive fines claim, and other constitutional claims.  Included in the complaint were claims of an unconstitutional prior restraint and content-based restrictions under the First Amendment.  The plaintiff argued, in essence, that the city’s permitting requirement and other restrictions on short-term rentals operated as a prior restraint on her advertising of the short-term rental, and that the requirement that she include her license in advertising was content based, compelled speech.
Continue Reading Court Denies New Orleans’s Motion to Dismiss First Amendment Claim Against Short-Term Rental Ordinance

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

Tattooing is protected by the First Amendment. Source: Creative Commons.

Two weeks ago, a federal district court in California granted preliminary injunctive relief to a tattoo shop owner who challenged the City of Montebello, California’s geographic restrictions on body art establishments.

Montebello’s regulation prohibits tattoo parlors within 1,000 feet of certain sensitive uses, including residential properties, schools, libraries, and religious institutions.  The effect of the regulation is to limit such establishments to two small shopping centers in the city.  Tattoo parlors are also subject to a conditional use permit requirement, in which the city is required to determine that the use will not have an adverse effect on surrounding properties and that it is consistent with city planning goals.
Continue Reading Court Grants Preliminary Injunction in California Tattoo Parlor Case

Two men were arrested for disorderly conduct in an anti-abortion demonstration in Little Rock, Arkansas.  In addition to bringing a Fourth Amendment claim against the Little Rock Police Department, the men challenged the Arkansas disorderly conduct statute and the city’s permit requirement as violations of their free speech rights under the First Amendment.  A federal district court dismissed the plaintiffs’ claims, and the Eighth Circuit affirmed on appeal earlier this month.

Arkansas’s criminal code contains several actions that constitute disorderly conduct, including:  fighting; in violent, threatening, or tumultuous behavior; unreasonable or excessive noise; the use of “abusive or obscene language, or mak[ing] an obscene gesture, in a manner likely to provoke a violent or disorderly response; disruption or disturbance of meetings or gatherings; obstructing traffic; and other actions.  The plaintiffs argued that the statute was vague and overbroad.  The appeals court found that the statute was not vague, primarily because it contained a mens rea requirement—that is, that the violator have a particular intent to engage in disorderly conduct.  The court used similar logic in upholding the statute against the plaintiffs’ overbreadth claim, finding that the statute was content neutral and that its objective mens rea requirement precluded an overbreadth challenge.
Continue Reading Arkansas Abortion Protesters Lose Appeal in Vagueness, Overbreadth, and Prior Restraint Case

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

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