There is quite the fervor among certain American parents about the teaching of critical race theory in public schools. In a recent case out of Missouri, Judge Stephen Clark granted an injunction in favor of one such group of parents. Brooks v. Francis Howell Sch. Dist., 4:22-CV-00169-SRC, 2022 WL 1185147 (E.D. Mo. Apr. 21,
Supreme Court: Boston City Hall Plaza Flags Aren’t Government Speech
The City of Boston flies three flags in City Hall Plaza just outside the Boston City Hall: those of the United States, the Commonwealth of Massachusetts, and the City of Boston. From time to time, and at the request of civic groups, organizations, businesses, and others, Boston replaces its flag with another. The Pride Flag
Fifth Circuit Remands in Texas Capitol Rotunda Display Case
Earlier this month, the Fifth Circuit Court of Appeals vacated a lower court’s summary judgment order in order favor of a non-theist group that sought to place a nonreligious display in the rotunda of the Texas state capitol during the holiday season. The lower court found that the state, in denying the group’s display, had engaged in viewpoint discrimination. However, the court found that the order granting retrospective relief was improper, but directed the lower to court to consider the group’s claim for prospective relief and reinstated its claim that the state’s regulations constituted an impermissible prior restraint.
We reported on this case in 2017. The facts of the case can be found on our earlier post. Since our last report on the case, the district court entered a declaratory summary judgment in favor of Freedom From Religion Foundation, finding that Texas Governor Greg Abbott’s and Texas State Preservation Board Executive Director Rod Welsh’s interference in the matter constituted viewpoint discrimination. However, the district court denied summary judgment on the group’s Establishment Clause claim and a claim against Abbott in his individual capacity.
Continue Reading Fifth Circuit Remands in Texas Capitol Rotunda Display Case
Ninth Circuit Holds Transit Advertising Is Nonpublic Forum, But Prohibition on Demeaning or Disparaging Advertising is Unconstitutional
In a case that has been percolating for more than five years and which we reported on last year, the Ninth Circuit Court of Appeals reversed a district court
Federal Court Denies Preliminary Injunction in Boston Flag Case
The City of Boston has three flagpoles in the plaza in front of its city hall. Typically, the city displays an American flag and POW/MIA flag on one pole and the flag of Massachusetts on the second pole. The third pole is used for the City of Boston flag, or alternatively, the flag of a third party. The third pole has been used for flags of foreign nations, civic organizations, the LGBT rainbow flag, and others. Parties can submit applications to fly their flag on the third pole, and the city has guidelines that prohibits flags that involve illegal or dangerous activities or conflict with scheduled events. The city reviews applications to determine whether a flag is consistent with the city’s message, policies, and practices, but does not have any guidelines as to the content of the flags. When an applicant was denied the opportunity to place a “Christian flag” on the City Hall on the grounds that the city refrains from flying religious flags on the Plaza, he filed suit.
Late last month, on the plaintiff’s motion for preliminary injunction, a federal district court found for the city. The court determined that the display of flags in front of City Hall constituted government speech. Applying the factors established by the Supreme Court in Pleasant Grove City v. Summum and Walker v. Texas Division, Sons of Confederate Veterans, the court found that flags are a longstanding form of government speech, the flags in front of City Hall are likely understood to be government speech, and the city has effective control over the flags in front of City Hall. Finding that the flags constitute government speech, that effectively ended the First Amendment inquiry.
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In Tennessee Planned Parenthood Case, Court Finds Private Street is Not a Public Forum
Last month, a federal district court in Tennessee denied a motion for preliminary injunction filed by a man who wished to picket a Planned Parenthood location in a business park in Memphis. The court determined that the private street on which the plaintiff, John Brindley, intended to picket was not a public roadway and therefore was not a traditional public forum requiring content neutral speech regulations.
Planned Parenthood’s offices are located on Virginia Run Cove, a two-lane street that serves multiple businesses located within the park. The park is zoned as a planned unit development, and the street serves the businesses located within the park. Brindley sought to protest Planned Parenthood on Virginia Run Cove, but was asked to move by a police officer on the premise that Virginia Run Cove is a private street. Brindley subsequently moved to a nearby public street, but was dissatisfied that his protest location was nearly 300 feet from his target audience, Planned Parenthood. Brindley subsequently filed his complaint in federal district court.
In conducting a forum analysis to determine whether Virginia Run Cove was a public forum for First Amendment purposes, the court noted that some public fora are privately-owned. These areas include public sidewalks that run across private property, sidewalks on private university campuses, and even the streets of corporate-owned communities. However, the court observed, private areas are not converted into public fora where the owner of the property allows a more limited use of the property.
Continue Reading In Tennessee Planned Parenthood Case, Court Finds Private Street is Not a Public Forum
In Another Transit Advertising Case, Federal District Court Upholds “No Religion” Policy
In a decision last month, an atheist group lost its challenge to an advertising policy promulgated by the transit system for Lackawanna County, Pennsylvania, COLTS, that prohibited, among other things, religious messages. Following a trial, a federal district court found in favor of the transit agency, on the grounds that its advertising space was a limited public forum and the policy was viewpoint neutral. The decision follows several recent decisions that have found transit advertising policies constitutional.
Beginning in 2012, the atheist group, the Freethought Society of Northeastern Pennsylvania, sought to place advertising on buses owned by COLTS. The Society’s initial advertising attempt was blocked by COLTS on the ground that its advertisement was controversial, in violation of the agency’s advertising policy. The transit agency rejected similar advertisements submitted in 2013 and 2014 as well, even after COLTS changed its advertising policy to more explicitly prohibit political or religious messages.
Continue Reading In Another Transit Advertising Case, Federal District Court Upholds “No Religion” Policy
No Christmas in July for Archdiocese of Washington; Appeals Court Affirms Denial of Preliminary Injunction
Last December, we reported on a federal district court’s denial of a motion for preliminary injunction relating to the Archdiocese of Washington’s unsuccessful efforts to post Christmas-season advertising on transit vehicles owned and operated by the Washington Metropolitan Area Transit Authority. Unfortunately for the Archdiocese, Christmas did not come in July either. Last week, the federal Court of Appeals for the D.C. Circuit affirmed the denial of preliminary injunctive relief.
The facts of the case are available on our post regarding the district court’s decision.
On appeal, the appellate court (which included as a panelist Supreme Court nominee Judge Kavanaugh) agreed with the district court. First, the court agreed that the advertising space on WMATA transit vehicles constitutes a non-public forum, where the government can exercise greater control over content yet must adhere to requirements of viewpoint neutrality and reasonableness. In so ruling, the D.C. Circuit joins a majority of federal appeals courts that have now ruled that transit advertising spaces are non-public fora.
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Homeless “Tent City” Is Not Expressive Conduct Protected by the First Amendment, Says Federal Court
Earlier this month, in a case challenging the denial of permits to erect a homeless “tent city” in front of a former elementary school in the Uptown neighborhood of Chicago, a federal magistrate judge dismissed the organizers’ First Amendment claim. While one count of the plaintiffs’ complaint will move forward, the order dismisses all of the plaintiffs’ federal claims.
Uptown Tent City Organizers and its leader, Andy Thayer, sought a permit from the City of Chicago to establish a tent city in the former elementary school site. In 2016, several homeless people had resided at the site, but the city fenced it off and the homeless people moved to various locations under viaducts along the city’s famed Lake Shore Drive. The plaintiff filed claims in state court challenging the city’s denial of the permit, and the city removed the case to federal court. The plaintiffs lost a motion for preliminary injunction, and subsequently amended their complaint to add First Amendment free speech and assembly, Eighth Amendment cruel and unusual punishment, Fourth Amendment illegal seizure, Fifth Amendment taking, and various state law claims.
Continue Reading Homeless “Tent City” Is Not Expressive Conduct Protected by the First Amendment, Says Federal Court
Land of Enchantment? Court Says Display of Marijuana is First Amendment-Protected, But Time Will Tell Whether State Fair Can Prohibit It
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.
Continue Reading Land of Enchantment? Court Says Display of Marijuana is First Amendment-Protected, But Time Will Tell Whether State Fair Can Prohibit It