The Bladensburg cross. Source: The Humanist.

In a widely-anticipated decision, the U.S. Supreme Court ruled late last month that a large concrete cross located on public property at a major intersection in Bladensburg, Maryland, could remain in place.  The nearly 90-year-old cross, which was placed to honor victims of World War I, had been challenged by an atheist organization as a violation of the First Amendment’s prohibition on establishment of religion.

In a fractured decision, seven of the Justices agreed that the cross could stay.  Writing for a plurality of the Court, Justice Alito argued that, although the Latin cross has a religious meaning, its longtime placement at a major intersection as a war memorial meant that it had taken on a secular meaning as well.  In light of this longstanding history, he concluded that the cross was not a violation of religious liberty.  In rendering his opinion, Justice Alito eschewed use of the widely-criticized Lemon test, developed by the Supreme Court in 1971, which looks at the government’s purpose and the effect of a regulation to determine whether an unconstitutional establishment of religion is created.  Justices Breyer and Kagan concurred in the opinion, noting that each Establishment Clause case must be reviewed individually and observing that no particular judicial test works in every situation.
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Earlier this month, a federal district court in Kansas awarded summary judgment to a plaintiff who claimed that the City of Williamsburg’s sign code violated the First Amendment.

The plaintiff, Eric Clark, placed several signs and other objects in a city right-of-way easement.  The city issued a notice of violation, which set off a series of interactions between the city’s code enforcement officer and Clark, and Clark issued several letters to the city claiming various violations of his civil rights.  Although the city desisted from further enforcement action, Clark, representing himself, filed a lawsuit against the city.
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The Dallas Convention Center. Source: dallassports.org.

In October of this year, the Fifth Circuit Court of Appeals ruled that an operator of an adult entertainment convention called “Exxxotica” had standing to challenge the City of Dallas, Texas’s 2016 decision not to enter into a contract allowing the event. The appeals court’s decision reversed a prior ruling by the federal district court dismissing the case.

In 2015, Three Expo Events, L.L.C., held the Exxxotica event at the Dallas Convention Center. The event, which featured near-nudity and a variety of suggestive activities, caught the attention of community members who believed that the event was immoral. These protesters then asked Dallas’s mayor to prohibit a second annual convention, and the mayor obliged. In 2016, the city refused to renew the event’s contract, and the city council approved a resolution prohibiting the same. Three Expo Events then filed suit, alleging First Amendment violations.

Because the city council’s resolution only prohibited Three Expo Events, and not its subsidiary—which would have been the party to the convention center contract—the district court found that Three Expo Events lacked standing to challenge the city’s decision.
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Michael Fowler, a resident of Ventura County, California, cultivated a garden on a portion of his agriculturally-zoned 40 acre property and began renting it out for wedding ceremonies and similar events with much success. However, due to changes to the County’s permit requirements, Mr. Fowler is now required to obtain a conditional use permit (CUP) before hosting any additional weddings on his estate.  With reservations already on his books, Mr. Fowler submitted the required application.  Officials tasked with reviewing his application found that the use would cause no adverse impacts and recommended granting the permit; however, after receiving complaints from neighbors, these same officials denied his application.  The Board of Supervisors upheld the denial on appeal.  This seemingly capricious denial forced Mr. Fowler to chose between breaking the law and dashing the dreams of couples who had already booked his venue by essentially cancelling their weddings.  Sensibly, he chose the latter “option,” resulting in at least one scathing review of his business and untold reputational harm.

Thwarted but not defeated,
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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.
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Day laborers in Oyster Bay. Source: New York Times.

On Tuesday, the Second Circuit Court of Appeals ruled that the Town of Oyster Bay, New York’s prohibition on motor vehicle solicitation of employment violated the First Amendment.  The appellate court’s ruling affirms an earlier district court ruling that found similarly.  The plaintiffs in the case were two groups that advocate for the interests of day laborers.

Oyster Bay enacted an ordinance in 2009 that read, in relevant part, “It shall be unlawful for any person standing within or adjacent to any public right-of-way within the Town of Oyster Bay to stop or attempt to stop any motor vehicle utilizing said public right-of-way for the purpose of soliciting employment of any kind from the occupants of said motor vehicle.”  Oyster Bay’s ordinance was ostensibly an effort to curb day laborer solicitation.
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One of International Outdoor’s billboards in the Detroit area. Source: International Outdoor.

Late last month, a federal court in Michigan granted in part and denied in part a motion to dismiss First Amendment claims filed by a billboard company, International Outdoor, against the City of Troy.  The billboard company claimed that Troy’s sign ordinance was content based and unconstitutional, and that it imposed an unconstitutional prior restraint.  The city moved to dismiss the plaintiff’s claims, and further argued that the billboard company lacked standing to bring the claims.

The court first reviewed the city’s challenge to International Outdoor’s standing, which asserted that International Outdoor failed to plead redressability.  In a short response, the court held that, because the challenge was a facial challenge to the entire sign ordinance, if the court were to strike down the entire ordinance, the plaintiff’s injury would be redressed.
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Last week, the federal Ninth Circuit Court of Appeals ruled that a tattoo shop owner had standing to challenge Long Beach, California’s zoning regulations.  The regulations had the effect of precluding the owner from operating his business in Long Beach.

James Real, who owns a tattoo parlor in Huntington Beach, California, sought to open a tattoo parlor in Long Beach.  Long Beach’s zoning regulations do not allow tattoo parlors in most zoning districts in the city; require a conditional use permit for operation of a tattoo parlor; may not be located less than 1,000 feet from another tattoo shop, adult entertainment use, arcade, or tavern; and tattoo parlors’ business hours are strictly limited.  Real sought approval from the city to locate in one of three locations, but the city responded by informing Real that none of the locations allowed for a tattoo parlor.

Real filed suit under the First Amendment, alleging that his tattooing was First Amendment-protected activity, and that the city’s zoning regulations were not proper time, place, and manner regulations and constituted an unconstitutional prior restraint.  The district court held that Real did not have standing to challenge the zoning regulations because he had failed to apply for a conditional use permit.
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This post was originally authored by Evan Seeman and Karla Chafee of Robinson + Cole, LLP.  Any views reflected in this post are the views of the original authors. 

hillside-sign

Thou shall have the right to an electronic sign?  Apparently not.  Just over a year ago, Hillside Baptist Church and Signs for Jesus (together, Plaintiffs or Church) filed a complaint in the District Court for New Hampshire, seeking a declaration that the Town of Pembroke’s (the Town) sign ordinance is unconstitutional both facially and as applied to the Plaintiffs.  The complaint alleged that the Town’s Ordinance banning the use of electronic signs in all but the Town’s commercial zoning district “restricts how the Church may proclaim a daily Biblical message while not restricting the medium of communicating state, municipal or school messages.”  Our post regarding the complaint is available here.

The Plaintiffs claimed that the Town’s limitation on electronic signs in all zones but the commercial zone, and the Town’s denial of the Church’s sign application violated its rights to Free Speech, Free Exercise of Religion, and Equal Protection, as well as RLUIPA’s substantial burden and equal terms provisions.
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Earlier this month, the First Circuit Court of Appeals held that a group of abortion protesters did not have standing to challenge a New Hampshire buffer zone law.  The First Circuit’s decision affirmed a decision by the federal district court, which we reported on last summer.

The law in question prohibited protesters from entering