We at the Rocky Mountain Sign Law are pleased to announce the following webinar from our friends at the American Planning Association’s Planning and Law Division:

The Planning and Law Division of the American Planning Association is pleased to host the upcoming webcast Planning and Law Caselaw Update on Thursday, January 31st, 2019 from 1:00 to 2:30 p.m. ET. Registration for individuals is $20 for PLD members and $45 for nonmembers. Registration for two or more people at one computer is $140.

The U.S. Supreme Court, federal courts, and state courts all play an important role in shaping planning throughout the country. This annual review delves into the important cases, the decisions that were made — or not made — and how this will affect planning at many levels.  It will also consider new legislative developments, both at the local and federal levels, which may influence the future of planning.  Speakers are John Baker, Esq., founding attorney of Greene Espel,  Deborah M. Rosenthal, Esq., FAICP, partner at Fitzgerald Yap Kreditor LLP, and Alan Weinstein, Esq., Professor of Law at Cleveland State University’s Cleveland-Marshall College of Law and Professor of Urban Studies at CSU’s Maxine Goodman Levin College of Urban Affairs.

Register here

Jack Phillips of Masterpiece Cakeshop. Source: Reuters.

While the Rocky Mountain Sign Blog is geared toward issues that involve free speech and land use law, we geek out about any Supreme Court case that addresses First Amendment issues, even those outside of our weird little land use world.  Yesterday, our appetite for Supreme Court First Amendment law was only moderately satiated.  The U.S. Supreme Court issued its much-awaited ruling in the hot-button First Amendment case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission.

In the case, a gay couple sought relief when a baker refused to bake them a wedding cake on the grounds that his religious beliefs did not support same-sex marriage.  The Colorado Civil Rights Commission found that Colorado’s anti-discrimination laws, which prohibit discrimination on the basis of sexual orientation, prohibited the baker from denying service to the couple, and the Colorado Court of Appeals affirmed the Civil Rights Commission’s decision.

In a 7-2 decision, the Supreme Court reversed, finding that statements made by members of the Civil Rights Commission evinced hostility toward religion, and that the Commission’s action thus violated the Free Exercise Clause of the First Amendment.  During their deliberations, Commission members had commented on prior use of religion to condone discriminatory action, and made other statements that the Supreme Court interpreted as being hostile toward religion.  Justice Kennedy authored the majority opinion, and Justices Kagan, Gorsuch, and Thomas authored concurrences in the decision.  Justice Ginsburg, joined by Justice Sotomayor, dissented, on the grounds that they did not believe that any statements of the Commission evidenced discrimination.

While the entire Court declined to address the appellant’s free speech claim, the conservative duo of Justices Thomas and Gorsuch wrote separately to address that issue.  Justice Thomas began his concurrence by noting that the Court has previously held anti-discrimination laws unconstitutional as applied when the discriminatory conduct at issue is expressive, citing Hurley v. Irish-American Gay, Lesbian and Bisexual Group of Boston and Boy Scouts of America v. Dale.  The two justices, applying a long line of cases that have held various forms of artistic expression to be First Amendment-protected, found that Masterpiece Cakeshop’s baker, Jack Phillips, engages in expressive activity when he creates wedding cakes.  Once they found that Phillips’s cake-making was expressive, Justices Thomas and Gorsuch would have applied strict scrutiny review.  They expressed concern with the fact that Colorado law would apparently command someone engaged in expressive activity to express particular views, whereas prior Supreme Court case law makes clear that offensive speech cannot constitutionally be prohibited.

While the majority opinion in Masterpiece Cakeshop gives us little with respect to the Court’s direction on free speech issues, the concurrence of Justice Thomas at least hints at the direction that two of the justices would lean.  We’ll have to wait for the next major religion-free speech battle to see how this one plays out.

Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, ___ S. Ct. ____, 2018 WL 2465172 (U.S. Jun. 4, 2018).

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.” Continue Reading U.S. Supreme Court Issues Rulings in Two First Amendment Cases