Stepping beyond the strict confines of sign law this week, we turn to a Texas case exploring new boundaries in First Amendment law: regulations on drone footage. Late last month, the U.S. District Court for the Western District of Texas struck down those regulations as unconstitutional speaker-based restrictions that were also impermissibly vague.
By statute
In a victory for plaintiff B&G Opa Holdings’s “Klub 24,” a federal district court recently struck down an ordinance used to shutter a strip club that briefly opened in a suburb north of Miami. Three months after an Opa-locka, Florida licensing clerk stamped “approve” on B&G’s application for a “playhouse,” the city returned to shut down the operation. Opa-locka explained that it had failed to run that use through its adult-entertainment special use permitting scheme and that Klub 24 was therefore operating without a license.
Litigation followed. Adopting the magistrate’s recommendation, the district court granted summary judgment on B&G’s claims that the city’s ordinance unconstitutionally prohibited all adult-entertainment uses and also gave the city too much discretion to prohibit such uses.
In what appears to have been some administrative bungling—and perhaps some misdirection from B&G—the city first allowed Klub 24 as an “other club” in January 2018. When it became clear that Klub 24 was in fact a
Continue Reading Florida City’s Special Use Restriction on Strip Clubs Held Unconstitutional
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
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
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.
Continue Reading Ninth Circuit Finds That Permit Requirement For Bullhorns Violates First Amendment
Last month, the federal Court of Appeals for the Fifth Circuit invalidated a Louisiana statute prohibiting nude erotic dancing by 18 to 21-year-old women, finding that the law was too vague and thus violated the First Amendment. The law was passed by the Louisiana
Two men were arrested for disorderly conduct in an anti-abortion demonstration in Little Rock, Arkansas. In addition to bringing a Fourth Amendment claim against the Little Rock Police Department, the men challenged the Arkansas disorderly conduct statute and the city’s permit requirement as violations of their free speech rights under the First Amendment. A federal district court dismissed the plaintiffs’ claims, and the Eighth Circuit affirmed on appeal earlier this month.
Arkansas’s criminal code contains several actions that constitute disorderly conduct, including: fighting; in violent, threatening, or tumultuous behavior; unreasonable or excessive noise; the use of “abusive or obscene language, or mak[ing] an obscene gesture, in a manner likely to provoke a violent or disorderly response; disruption or disturbance of meetings or gatherings; obstructing traffic; and other actions. The plaintiffs argued that the statute was vague and overbroad. The appeals court found that the statute was not vague, primarily because it contained a mens rea requirement—that is, that the violator have a particular intent to engage in disorderly conduct. The court used similar logic in upholding the statute against the plaintiffs’ overbreadth claim, finding that the statute was content neutral and that its objective mens rea requirement precluded an overbreadth challenge.
Continue Reading Arkansas Abortion Protesters Lose Appeal in Vagueness, Overbreadth, and Prior Restraint Case
In an effort to curb visual clutter and reduce litter, Chicago’s sign ordinance has, since 2007, prohibited posting “commercial advertising material” on city-owned property. No longer, however. Writing recently, the U.S. District Court for the Northern District of Illinois struck
Last month, a federal district court in Pennsylvania found that a billboard company’s challenge to the constitutionality of the state’s highway advertising law sufficiently stated a claim for relief and could proceed to further stages of litigation.
Pennsylvania’s highway advertising law contains a general prohibition on sign structures within 500 feet of a highway interchange
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.
Continue Reading Court Allows First Amendment Claims to Move Forward in Reno Sign Code Case