An adult business in Louisiana. Source: Facebook.

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 legislature in 2016, and applied to locations that serve alcoholic beverages in connection with nude dancing.  Erotic dancers were previously required to be at least 18 years of age, and state law—both before and after the 2016 law—did not permit total nudity.

The court addressed the law as a content neutral regulation of expressive conduct, in line with Fifth Circuit precedent requiring adult business regulations to be analyzed under intermediate scrutiny.  The court analyzed the law under the four-part standard for determining the constitutionality of regulations of expressive conduct under United States v. O’Brien.  The court reversed the district court’s conclusion that the law was not narrowly tailored, on the grounds that Louisiana state courts had limited the act’s application beyond its plainly legitimate sweep.  Thus, the law was tailored to the state’s interest in reducing negative secondary effects associated with adult entertainment establishments.  The court went on, however, to find that the law was unconstitutionally vague.  Specifically, the court found that the law in question, which prohibited exposure “to view” of the dancers’ breasts and buttocks, did not clearly prohibit specific conduct.  On these grounds, the court invalidated the statute.

While this case does not deal with local regulations (which are generally the subject of our blog), it provides further direction to local governments addressing adult entertainment businesses.  Specifically, local governments need to clearly identify the type of conduct that is permissible in adult entertainment establishments, and should not rely on state laws that might not be sufficiently specific in that regard.

Doe I v. Landry, 905 F.3d 290 (5th Cir. 2018).

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

Photo Credit: Robert Coure-Baker. Used subject to creative commons license https://creativecommons.org/licenses/by/2.0/

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 down that ban as unconstitutionally vague.

The ordinance’s challenger, RCP Productions, leveled two contentions, and while only one was convincing, that was enough to sink the ban.  RCP first argued that the sign ordinance unconstitutionally restricted commercial speech—a high bar to clear, and RCP fell short.  Chicago, the court concluded, had supplied ample reason to believe that commercial advertising accounted for the vast majority of signage and litter clogging the city’s public ways.  The city’s ban addressed those bugaboos without blocking other avenues for commercial speech, and thus didn’t raise a constitutional worry.  On that front at least.

The challenger’s second argument proved more successful: the court agreed that the term “commercial advertising material” lacked constitutionally required clarity.  Was a flyer advertising a $10 lunch event with a federal judge a commercial advertisement?  And what about the plaintiff’s own advertisement, promoting a non-profit film screening with a small admission fee?  Was that banned as well?  The ordinance offered no clear answers, and instead, Chicago officials had suggested multiple readings.  That proved fatal.   Chicago was not required to provide perfect clarity, the court reasoned, but the term “commercial advertising material” lay at the heart of the sign ordinance’s ban, and the city did not define that critical term.  Absent a clear definition, the court worried Chicago could lean on the ordinance’s ambiguity to prohibit disfavored messages.  The ordinance therefore fell to RCP’s challenge.

Link to full opinion here: https://law.justia.com/cases/federal/district-courts/illinois/ilndce/1:2015cv11398/319533/93/

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 or rest area, but the law exempts on-premises commercial and noncommercial signs (i.e. those advertising activities and products available on the property where the sign is located) and “official signs,” which are defined as those placed by public agencies.

Adams Outdoor Advertising, a billboard company, brought a First Amendment challenge, claiming that PennDOT, the state’s transportation department, had changed its interpretation of the highway advertising law, and had given varying directives regarding whether the 500-foot restriction applied to billboards on the opposite side of a highway from a rest area or interchange. Adams wanted to install a billboard opposite an interchange, but PennDOT had declined to issue a permit.  Adams contended that PennDOT’s changed interpretation of the statute made it unconstitutionally vague.  Adams further alleged that the lack of any timeframes in which PennDOT was required to act upon applications for sign permits also made the law unconstitutional.

The court first determined that it was not clear whether the law in question was content neutral, due in part to the exceptions to the permitting requirement.  The court left for a later day the determination of whether it was content neutral, reasoning that even a content neutral law would be required to satisfy intermediate scrutiny.  The court dismissed Adams’s vagueness claim, however, because it found that a person of ordinary intelligence could determine the meaning of the law from its face; the court was not persuaded that PennDOT’s changing interpretation of the statute rendered the law vague.  The court went on to find, however, that because the law was not clearly content neutral on its face, the lack of any timeframe for the issuance of sign permits would potentially create a constitutional defect in the statute.

The court additionally dismissed substantive due process and equal protection claims as well.

Adams Outdoor Advertising Limited Partnership v. Penn. Dept. of Transp., No. 5:17-cv-01253, 2018 WL 822450 (E.D. Penn. Feb. 9, 2018).

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

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. Continue Reading Restrictions on Structures in Dallas Park Upheld

In July, a federal court in Wisconsin granted a preliminary injunction to Candy Lab, the maker of the popular “Pokemon Go” game, after Milwaukee County required the company to obtain a permit in order for players of its games to play in the county’s parks.

In 2016, Candy Lab released Pokemon Go, which allows players to use smartphones with location-sensing technology and “augmented reality”—whereby the phone displays an image suggesting that the image is physically present in front of the user—to play the game in a particular geolocation.  The runaway success of the game meant that many public parks became popular with players, including Milwaukee County’s Lake Park.  In summer 2016, the county observed large numbers of people playing the game in the park, and reported increases in litter, trampling of grass and flowers, players staying past the park’s closing hours. The park additionally had inadequate bathrooms, unauthorized vending, parking problems, and traffic congestion as a result of the game.  The county responded with an ordinance prohibiting virtual- and augmented-reality games in the county’s parks, except with a permit.  In 2017, Candy Lab released another augmented-reality game, Texas Rope ‘Em, but refused to obtain a permit from the county.  Candy Lab then sued the county, claiming a violation of its free speech rights. Continue Reading Court Grants Preliminary Injunction in Milwaukee “Texas Rope ‘Em” Case

Twin Oaks Park, the site of the photography dispute. Source: STLtoday.com

Last year, we reported on a case in Twin Oaks, Missouri, where a local wedding photographer, Josephine Havlak, challenged a town ordinance limiting commercial activity in a public park.  Late last month, the Eighth Circuit Court of Appeals affirmed the district court’s denial of the photographer’s motion for preliminary injunction, finding the ordinance content neutral and constitutional as applied to the photographer.

The facts of the case can be found on our post from last year.

On appeal, the Eighth Circuit first evaluated whether the plaintiff’s claim was an as-applied challenge or a facial challenge to the entire ordinance.  A facial challenge can result in invalidation of the entire ordinance, while an as-applied challenge only prohibits enforcement of the ordinance against the plaintiff.  Because the photographer failed to provide any evidence that third parties would be affected in a manner different from her, the court determined that Havlak’s challenge was an as-applied challenge.  Thus, the court only analyzed the ordinance’s application to the plaintiff. Continue Reading Eighth Circuit Upholds Denial of Preliminary Injunction in Photography Case

In a case that we reported on last year, a federal district court in California granted summary judgment in favor of the City of San Diego in a case involving art murals.

Some of the facts of the case are reported in our prior post.  The San Diego sign code exempts from permitting “[p]ainted graphics that are murals, mosaics, or any type of graphic arts that are painted on a wall or fence and do not contain copy, advertising symbols, lettering, trademarks, or other references to the premises, products or services that are provided on the premises where the graphics are located or any other premises.”  Otherwise, all signs visible from the right of way are required to obtain a permit, and signs on city-controlled property must obtain a permit as well.  Messages on city-controlled property are limited to on-premises speech and “public interest” messages.  As we previously noted, the plaintiff, a mural company, was granted approval to place two wall murals in San Diego, but received a violation for the placement of a third mural.  The plaintiff believes that the annual Comic-Con event was given special treatment by the city, because certain signs posted around the city during the event were not issued citations. Continue Reading San Diego’s Motion for Summary Judgment Granted in Mural Case