New Mexico state fair. Source: Beate Sass, https://beatesass.wordpress.com/2013/09/21/the-new-mexico-state-fair/.

Green chile is undoubtedly a popular product at the New Mexico State Fair.  But can another “green” product—medicinal marijuana—be displayed at the state fair?  That question now rests with a federal district court.

New Mexico allows vendors of food, medical, and other products to display their products in booths at the annual state fair.  New Mexico Top Organics—Ultra Health, Inc., a medical cannabis company, sought to display its medical cannabis products at the fair, but New Mexico has a policy disallowing the display of drugs or drug paraphernalia at the fair.  In 2016 and 2017, the state prohibited Ultra Health from displaying its products, or images of its products, at the fair.  Ultra Health determined that, without images or examples of its products, it could not meaningfully participate in the fair, and it subsequently brought suit against several state fair officials, alleging violations of its free speech rights under the First Amendment.
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A Street Preacher (though not the one in this case) | by frankieleon, flickr. Used subject to reuse label.

The concrete pathways at the corner of University Boulevard and Hackberry Lane in Tuscaloosa, Alabama, may look and quack like

sidewalks, but as constitutional matter, the Eleventh Circuit considers them something less: an extension of the University of Alabama campus.  In a recent decision, that circuit concluded the sidewalks were not a “traditional public forum” within which the Constitution confines government control of speech and other demonstrations, but rather a “limited public forum” to which the University of Alabama could constitutionally control access. The practical result?  The unlicensed street preacher who sued ‘Bama won’t get a preliminary injunction against the university’s grounds-use policy.

The plaintiff preacher,
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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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Does the First Amendment require a public transit system to run an ad alerting riders to the “Faces of Global Terrorism”?  No, concluded a federal district court last month.  The case, which remains on appeal, comprises the latest salvo in a years-long battle between the American Freedom Defense Initiative (AFDI), a nonprofit specializing in creating and litigating advertisements decrying the “Islamization of America,” and King County Metro Transit (Metro), the Seattle area’s mass transportation system.

After AFDI submitted what Metro rejected as a false and misleading advertisement, and the Ninth Circuit refused to overturn a district court order denying AFDI’s request for a preliminary injunction, AFDI returned with a new version of its ad.  That latest iteration
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Klyde Warren Park in Dallas. Source: klydewarrenpark.org

Last month, the Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment.  The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others.  To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles.  The riddles are intended to attract people to stop by and ask him about them.  The park rules prohibit structures larger than four feet by four feet without a permit.  Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park.  In 2015, he received a criminal trespass warning.  After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds.
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This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Late last month, the U.S. Supreme Court handed down two opinions addressing separate free speech issues.  While neither decision related specifically to local government regulations, both hold some important lessons for local government practice, as we outline below.

In Packingham v. North Carolina, the Court struck down a North Carolina law making it a felony for registered sex offenders “to access a commercial social networking Web site where the sex offender knows that the site permits minor children to become members or to create or maintain personal Web pages.”  Gerard Packingham, having previously been convicted of “taking indecent liberties with a child,” was cited for violating the law when he posted a statement on his Facebook page about a “positive experience in traffic court.”

At trial, Packingham filed a motion to dismiss on the grounds that the charge violated his First Amendment free speech rights.  The trial court denied Packingham’s motion, and he was subsequently convicted.  Upon appeal, the Court of Appeals of North Carolina struck down the law on First Amendment grounds, explaining that “the law is not narrowly tailored to serve the State’s legitimate interest in protecting minors from sexual abuse.”  The North Carolina Supreme Court reversed, holding the law constitutional “in all respects,” and explaining that the law was carefully tailored to prevent sex offenders from accessing “only those Web sites that allow them the opportunity to gather information about minors.”
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“Sexy cops” patrolling the Las Vegas Strip. Source: loweringthebar.net.

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Last month, street performers in the Ninth Circuit got a bigger tip than anticipated when the Ninth Circuit Court of Appeals reversed a Nevada federal district court’s order granting summary judgment to three Las Vegas police officers, where the police officers ticketed two street performers on the famous Las Vegas Strip.  In its ruling, the appeals court found that the street performers—who dressed up as “sexy cops” to take photos with tourists—could not constitutionally be required to obtain a business license for engaging in expressive activity and association.

Michele Santopietro is an actress turned street performer who occasionally dresses up as a “sexy cop” on the Las Vegas Strip.  In March of 2011, Santopietro and her colleague Lea Patrick performed as “sexy cops” on the Strip as they were approached by three individuals indicating a desire to take a photograph.  The “sexy cops” happily obliged.  Following the photograph, Patrick persistently reminded the three individuals that the “sexy cops” work for tips.  Unbeknownst to Santopietro and Patrick, the three individuals in question were real Las Vegas Metro police officers dressed down in street clothes.  Due to Patrick’s persistence and claim that the officer entered into a “verbal contract” to give a tip, the Metro police officers arrested the two women under Clark County Code § 6.56.030 which states: “It is unlawful for any person, in the unincorporated areas of the county to operate or conduct business as a temporary store, professional promoter or peddler, solicitor or canvasser without first having procured a license for the same.”
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A nudist political protest in San Francisco. Source: Change.org.

This post was authored by Otten Johnson summer law clerk David Brewster.  David is a rising third-year law student at the University of Denver Sturm College of Law.

Is a birthday suit like burning a draft card?  Last week, the Ninth Circuit Court of Appeals took on a First Amendment challenge to San Francisco’s public nudity ordinance, which prohibits an individual from exposing “his or her genitals, perineum, or anal region on any public street, sidewalk, street median, parklet, plaza, or public right-of-way . . . or in any transit vehicle, station, platform, or stop of any government operated transit system in the City and County of San Francisco.”  “Body freedom advocates” Oxane “Gypsy” Taub and George Davis brought an action challenging the City’s enforcement of the ordinance, alleging that it unconstitutionally prohibited expressive nudity at a political rally. The case came before the Ninth Circuit following dismissal by the United States District Court for the Northern District of California.
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A Spokane Transit Authority bus. Source: Spokane Public Radio.

The union representing Spokane Transit Authority employees will have an opportunity to continue its challenge to the STA’s bus advertising policy, now that a federal court has denied the transit authority’s motion to dismiss.

Like many transit agencies, the STA has an advertising policy.  Until November 2016, the STA delegated administration and enforcement of the policy to an advertising contractor called ooh Media LLC.  The policy allows “Commercial and Promotional Advertising” and “Public Service Announcements.”  Commercial and promotional advertising includes general commercial advertisements for products, services, events, and the like.  Public service announcements are required to meet three criteria: the sponsor must be a governmental or 501(c)(3) nonprofit entity, the announcement must relate to one of five topics (including public health, safety or personal well-being, family or child social services, broad-based contribution campaigns, or services for low-income people or persons with disabilities), and the announcement may not include a commercial message.  The policy also prohibits deceptive advertising, political speech, or ideological or religious messages.
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A 20-foot buffer zone at a Planned Parenthood facility in Harrisburg. Source: PennLive.com.

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. 
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