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The Federal District Court for the District of North Dakota last week denied a request for a preliminary injunction that would have forced the City of Fargo to allow a “premier adult toy retailer” to open a downtown location. 

The case arose out of a zoning dispute between plaintiff “Romantix” and Fargo’s planning department.  Romantix considered itself just another retailer eligible to locate downtown.  City officials disagreed, saying that Romantix’s business of selling sexual devices instead made it an “adult bookstore,” which the City prohibits downtown, and that the City would not issue a change-of-use permit for a prohibited use.Continue Reading Federal District Court: No Preliminary Injunction to Prohibit Fargo from Excluding Adult Toy Store Downtown

In April, we blogged about Eubanks v. Woods, in which the Sixth Circuit reversed a district court’s grant of summary judgment in favor of Ohio police officers sued for First Amendment retaliation and unlawful arrest after the officers arrested the plaintiff for speech against the police.  Also in April, the same court heard Novak v. City of Parma, in which a plaintiff appealed a district court’s grant of summary judgment in favor of Ohio police officers for First Amendment retaliation and unlawful arrest after the plaintiff was arrested for speech against the police.  This time, the Sixth Circuit affirmed.
Continue Reading Cop Critic Unsuccessful on Constitutional Claims in the 6th Circuit

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

In a recent order on cross motions for summary judgment, a federal district court in Florida reiterated the high bar to upholding prior restraints on speech.  Plaintiffs Florida Beach Advertising and its owner and operator David Duvernay were cited on three occasions for violating a section of the City of Treasure Island’s code that requires any person to obtain a license before displaying a sign, banner, or advertisement.  They brought claims that the code violated the First Amendment—facially and as applied—and was preempted by state statute.  Although the plaintiffs challenged the entire code, the court found they had standing only to challenge the specific section they were cited for violating.  While the court quickly ruled for the City on the preemption challenge, it provided more robust analysis of the First Amendment claims.
Continue Reading District Court Strikes Down Florida City’s Sign License Requirement

Recent litigation against the city of Fort Worth has once again confirmed that localities should steer clear of content-based sign codes and free-wheeling approval processes.  Dallas’s neighbor learned that lesson after a federal district court struck down portions of its regulations, concluding they were both content-based and a prior restraint, and also unable to survive strict scrutiny.

The case arose from plaintiff Brookes Baker’s efforts to place crosses in the city right-of-way alongside an abortion clinic.
Continue Reading Federal District Court Strikes Down Fort Worth’s Prohibition and Exemption Scheme for Materials in the Right-of-Way

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 …

A billboard company’s challenge to the Troy, Michigan sign variance standards–which we reported on three years ago–has now resulted in an appellate decision that has the potential to greatly change commercial speech regulation as we know it.  Two weeks ago, the Sixth Circuit Court of Appeals ruled that the city’s sign code was an unconstitutional prior restraint and was content-based in its regulation of temporary signs.  The most remarkable aspect of the decision, however, was the court’s conclusion that any content-based commercial sign regulation should now be subjected to strict scrutiny analysis, which is nearly always fatal to a sign regulation.

The Troy sign ordinance allows property owners to post one ground sign of up to 12 feet in height and not exceeding 100 square feet, plus one additional ground sign, so long as the second sign is set back 200 feet from a right-of-way, is no more than 25 feet tall, does not exceed 300 square feet in area, and is not less than 1,000 feet from any other sign exceeding 100 square feet.  International Outdoor sought to install 672-square-foot, double-sided advertising signs in Troy that did not meet the foregoing requirements and sought a variance.  The criteria used by the city’s appeals board were threefold:  “(1) the variance would not be contrary to the public interest or general purpose and intent of this Chapter; and (2) the variance does not adversely affect properties in the immediate vicinity of the proposed sign; and (3) the petitioner has a hardship or practical difficulty resulting from the unusual characteristics of the property that precludes reasonable use of the property.”  The board denied the variance for failure to meet the criteria.
Continue Reading In Billboard Company’s Challenge to a Michigan Sign Ordinance, the Sixth Circuit Finds That Content-Based Commercial Speech Regulations Are Now Subject to Strict Scrutiny

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