The City of Boston flies three flags in City Hall Plaza just outside the Boston City Hall: those of the United States, the Commonwealth of Massachusetts, and the City of Boston. From time to time, and at the request of civic groups, organizations, businesses, and others, Boston replaces its flag with another. The Pride Flag
St. Louis Suburb Wins Some, Loses Some in Challenge to Ordinance Regulating Sidewalk Obstructions and Street Performances
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.
After several street performers challenged the original ordinance, the city amended it to add…
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Ohio Appeals Court Upholds Restrictions on Signage in the Public Right of Way
As a company that sells advertising space on benches in public areas, Bench Billboard Company has a long and storied litigation history against municipalities in Ohio and Kentucky. In this most recent iteration, the BBC challenged the constitutionality of Colerain Township’s (a Cincinnati suburb) restriction on signage in its right of way after the Township…
District Court Denies Preliminary Injunction in Philadelphia Homeless Encampment Case
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.…
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Tenth Circuit Strikes Down Oklahoma City Median Restrictions
Last week, the federal Court of Appeals for the Tenth Circuit ruled that an Oklahoma City law prohibiting people from remaining on street medians violated the First Amendment. The law was challenged by a diverse group, including panhandlers, minority political parties, and even joggers.
In 2015, apparently in response to concerns regarding panhandling, Oklahoma City passed a law that prohibited individuals from sitting, standing, or remaining in street medians throughout the city. Although the law was motivated by concerns regarding panhandlers, the city sought to justify the law with the presentation of safety statistics regarding pedestrians in street medians. A group of plaintiffs sued the city, and it revised the ordinance in 2017 to limit the law’s coverage to medians along streets with speed limits of 40 miles per hour or greater. Again, the city justified its amended law with safety information.…
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Fifth Circuit Remands in Texas Capitol Rotunda Display Case
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.…
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Federal Court Enjoins Chicago Park Speech Regulations
In a case involving violations of nearly every First Amendment protection for speech in public places, a federal court recently enjoined enforcement of new Chicago restrictions on speech in the city’s famed Millennium Park. Evidently hoping to safeguard quiet contemplation of the “Bean” (pictured here) and all but a few other areas of the park, the City enacted an ordinance prohibiting a range of speech.
The ordinance outlawed conduct “that objectively interferes with visitors’ ability to enjoy the Park’s artistic displays” and the “making of speeches and the passing out of written communications” outside a few specified areas. It did not, however, provide any guidance as to how to enforce those prohibitions—leading to an astonishing interaction in which a park employee explained that religion could not be discussed in the park. On February 20th, the U.S. District Court for the Northern District of Illinois concluded these provisions violated the First Amendment and issued a preliminary injunction barring their enforcement.
The parties challenging the ordinance were a group of college-student evangelists and petition circulators whom the city had rebuffed in their attempts to champion their causes in Millennium Park. Among Chicago’s various attractions, the park held special appeal for the challengers because …
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Ninth Circuit Finds That Permit Requirement For Bullhorns Violates First Amendment
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.
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Appeals Court Affirms District Court Ruling in Favor of Pennsylvania Animal Rights Activists
In a case that we reported on previously, the Third Circuit Court of Appeals has entered a ruling in favor of a group of animal rights activists that wished to protest the Barnum and Bailey Circus in a government-owned convention center and arena in Wilkes-Barre, Pennsylvania.
The facts of the case can be found in our earlier posts. At issue on appeal were questions of whether the government could limit the area allowed for protests at the arena, whether the protesters could be prohibited from using profane language, and whether the convention center could prohibit the use of sound amplification.
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Utah City’s Median Restriction Found Content Neutral, Constitutional
Earlier this summer, the Tenth Circuit Court of Appeals held that Sandy City, Utah’s restriction on sitting or standing in a street median of less than 36 inches in width met constitutional muster. Although the regulation was principally aimed at addressing panhandling activity, the court found the regulation to be content neutral, affirming an earlier district court ruling in the case. The court’s decision appears to offer an avenue for local governments to address safety concerns associated with panhandling, without treading on constitutionally unstable ground.
The Supreme Court’s 2015 decision in Reed v. Town of Gilbert resulted in the invalidation of many restrictions on panhandling in municipalities around the United States. To get around the legal defects associated with panhandling prohibitions, municipalities—like Sandy City—have adopted general restrictions on sitting, standing, and remaining in street medians to achieve the same ends.…
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