Empirical evidence may not be necessary for time, place, and manner regulations on signage

by Eric Christianson

Luce v. Town of Campbell
(Seventh Circuit Court of Appeals. September 22, 2017)

Interstate 90 runs through the town of Campbell, Wisconsin where it is crossed by two streets and a pedestrian overpass.

Gregory Luce and Nicholas Newman, two members of the local Tea Party, chose to use the pedestrian overpass to promote their views. With their group, they held American flags along with banners and signs messages such as “HONK TO IMPEACH OBAMA.” This led the Town’s legislature to enact an ordinance forbidding all signs, flags, and banners (other than traffic-control information) on any of the three overpasses, or within 100 feet of the end of these structures.

Complicating this case is the fact that the local police chief, Tim Kelemen, and the Tea Party protesters escalated the conflict. The members of the Tea Party group posted videos and messages online. One video showed police removing a protestor for unfurling an American flag.

The police chief responded by posting the name and email address of one of the protestors on same-sex dating and pornography websites. Kelemen also posted comments on the local newspaper’s website accusing that protestor of failing to pay his property taxes and other debts and asserting that his car was about to be repossessed. When this behavior was revealed, Kelemen resigned his post as police chief and was prosecuted for “unlawful use of a computerized communication system.”

In this case the plaintiffs considered the actions of the police chief to have been retaliation by the city for their speech. However the court found that Kelemen’s vigilante actions were private in nature:

The court concluded that Kelemen was not engaged in state action when “messing with” Luce and that the First Amendment therefore did not apply (for it deals only with governmental conduct). Acting as a vigilante is not part of a police officer’s job. Kelemen did some of the dirty work while on duty and used an office computer for some posts. But he did not use official information or privileged access to information. All of the facts he gathered and disclosed about Luce, such as his physical and email addresses, were available to the general public. Anyone else could have done exactly what Kelemen did.

While Kelemen’s actions were not “state action” the court does say that his actions undermine his credibility as a witness stating the dangers presented by signage on the overpass. While one photograph of a car, which had stopped to take a picture, was shared at trial, without Kelemen’s testimony there was no other evidence to prove this law advances a “significant governmental interest.”

However, the court asserts that case law shows that reasonable, content-neutral, time, place, and manner restrictions on speech have not required empirical evidence to pass constitutional muster. As long as the legislatures assertions are reasonable, “the Court “hesitate[s] to disagree with the accumulated, common-sense judgments of local lawmakers.” Novel signs do attract more attention than fixed billboards. The City Council does not need a specific double-blind study to support that fact in this case.

A regulation of the sort the Town has adopted rests on a belief that overhead signs and banners will cause at least some drivers to slow down in order to read what the banners say, and perhaps to react to them (say, by blowing the car’s horn in response to “HONK TO IMPEACH OBAMA”). Stopping to take a picture is just an extreme version of slowing down. Reading an overhead banner requires some of each driver’s attention, and diverting attention—whether to banners or to cell phones and texting—increases the risk of accidents. This effect is well established for cell phones and texting and is the basis for legislation by many jurisdictions, uncontested in court as far as we are aware, though talking and texting are speech.

It does not take a double-blind empirical study, or a linear regression analysis, to know that the presence of overhead signs and banners is bound to cause some drivers to slow down in order to read the sign before passing it. When one car slows suddenly, another may hit it unless the drivers of the following cars are alert—and, alas, not all drivers are alert all the time

The court did remand a portion of the law which bans all signage within 100 feet of the overpasses including those which would not be visible to drivers on the interstate.

City demonstrates negative secondary effects of adult entertainment establishment sufficient to overcome preliminary injunction

by Hannah Dankbar

BBL, Inc. and Butler v. City of Angola
Federal 7th Circuit Court of Appeals, December 7, 2015

Alva and Sandra Butler own BBL, Inc. which bought a restaurant in Angola, Indiana with plans to convert it to an adult-entertainment venue. Immediately after the purchase the City of Angola amended its zoning ordinance to prohibit this use of the property. BBL, Inc. sued the City claiming a First Amendment violation and requesting a preliminary injunction be issued to prevent enforcement of the ordinance.

As part of the new ordinance Angola requires sexually oriented businesses to locate “at least 750 feet from every residence.” There is no debate that BBL does not meet this requirement.

In regards to the First Amendment claims BBL claimed; (1) the new licensing and zoning amendments violated its right to expressive conduct; and (2) the permit requirement was an impermissible prior restraint on speech.

Angola requested judgment on the applicable legal test (from City of Renton v. Playtime Theatres, Inc.) in two separate motions. The steps in this analysis require Angola to show: (1) the challenged  requirements are aimed at reducing the negative secondary effects of adult-entertainment establishments; (2) the requirements are narrowly tailored to serve to that purpose: and (3) the zoning scheme leaves open reasonable alternative sites for this form of expression.

At the preliminary injunction stage BBL reserved the right to later challenge the factual basis on which Angola adopted its ordinance (whether the city’s evidence of negative secondary effects was sufficient) but presented no such evidence at that time. Tactically this was a mistake because, the city provided an extensive (but boilerplate) catalog of secondary effects research.  By not challenging the city’s evidence at that time BBL “radically reduced its chances of obtaining a preliminary injunction.”  In fact BBL’s preliminary injunction was not granted by the trial court, and the 7th Circuit concurred.

Weeds are not protected speech or expression

by Hannah Dankbar

Discount Inn, Inc. v. City of Chicago
Federal 7th Circuit Court of Appeals, September 28, 2015

(Note that the Court included photos of native Illinois plants in its written opinion; a very unusual practice)

Chicago’s Department of Administrative Hearings decided that Discount Inn, Inc. violated the weed and fence ordinances.  The weed ordinance reads:

Any person who owns or controls property within the city must cut or other‐ wise control all weeds on such property so that the average height of such weeds does not exceed ten inches. Any person who violates this subsection shall be subject to a fine of not less than $600 nor more than $1,200. Each day that such violation continues shall be considered a separate offense to which a separate fine shall apply.

The fence ordinance reads:

It shall be the duty of the owner of any open lot located within the City of Chicago to cause the lot to be surrounded with a noncombustible screen fence …. Provided, however, that this section shall not apply to … sideyards. The owner shall maintain any such fence in a safe condition without tears, breaks, rust, splinters or dangerous protuberances and in a manner that does not endanger or threaten to endanger vehicular traffic by obstructing the view of drivers. Any fence which is not maintained in accordance with these provisions is hereby declared to be a public nuisance and shall be removed … . It shall be the duty of the owner of any lot whose fence has been so removed to replace such fence with a noncombustible screen fence meeting the requirements of this section and of this Code.” Municipal Code of Chicago § 7‐28‐750(a). Violators “shall be fined not less than $300 nor more than $600 for each offense,” and “each day such violation continues shall constitute a separate and distinct offense to which a separate fine shall apply.

Discount Inn made two claims: (1) the ordinances violate the prohibition against “excessive fines” in the Eight Amendment; and (2) the weed ordinance is vague and forbids expressive activity protected by the First Amendment.

In regards to the first claim, the Supreme Court has not decided whether this clause applies to state action. This court assumes that it does apply, but found that the fines are not excessive. The fines for both ordinances enforce a legitimate government interest. Fencing vacant lots are important for identifying abandoned lots. The City has an interest in controlling weeds because uncontrolled weeds lead to problems such as obscuring debris, providing habitat to rodents and mosquitos, and contributing to breathing problems.

Regarding the second claim, Discount Inn argued that native plants are mistaken for weeds and their use is unnecessarily limited because of the ordinance. There is no clear definition of a weed in the city code. Discount Inn does not argue that they have native or other decorative plants, but simply rather that the ten-inch rule violates the free-speech clause of the First Amendment. It is true that the First Amendment protects some non-spoken work, such as paintings; however, the Court concluded that these weeds have no expressive value. The owner did nothing to cultivate or design the weeds.

Discount Inn also argues that the ordinances are unconstitutional because they do not specify a statute of limitations. There is no rule that there must be a statute of limitations. Prescribing a statute of limitations for a weed ordinance would require an insane use of city resources.

The decision was upheld.

7th Circuit interprets Reed v. Gilbert to strike down local panhandling ordinance

by Gary Taylor

Don Norton, et al v. City of Springfield
Federal 7th Circuit Court of Appeals, August 7, 2015

Springfield, Illinois adopted an ordinance that prohibits panhandling in its downtown historic district, which encompasses less that two percent of the City’s area but containing its principal shopping, entertainment, and governmental areas, including the Statehouse and many state government buildings.  The ordinance defines panhandling as an oral request for an immediate donation of money.  Signs requesting money are allowed, as are oral pleas to send money later. The City views signs and requests for deferred donations as less impositional than oral requests for money immediately, which some people may find threatening.

The Plaintiffs contended that barring oral requests for money now but not regulating requests for money later is a form of content discrimination.  The 7th Circuit initially sided with the City in 2014.  It observed that “the [Supreme] Court has classified two kinds of regulations as content-based: One is regulation that restricts speech because of the ideas it conveys, the other is regulation that restricts speech because the government disapproves of its message.”  The 7th Circuit concluded that the ordinance did not meet either test for content-based speech.  It observed that the ordinance did not interfere with the marketplace for ideas, that it did not practice viewpoint discrimination, and that the distinctions that plaintiffs called “content discrimination” appeared to be an effort to make the ordinance less restrictive.

Plaintiffs requested reconsideration. The 7th Circuit agreed to reconsider, and deferred its decision until the Supreme Court’s decision in Reed v. Gilbert.  In light of the Supreme Court’s interpretation of content-based regulation, the 7th Circuit reversed its previous decision.  “The majority opinion [in Reed] effectively abolishes any distinction between content regulation and subject-matter regulation.  Any law distinguishing one kind of speech from another by reference to its meaning now requires a compelling justification….[T]he parties have agreed that the ordinance stands or falls on the answer to the question whether it is a form of content discrimination.  Reed requires a positive answer.”

Justice Manion authored a concurring opinion to underscore the significance of Reed, and its interplay with the Supreme Court’s opinion in Ward v. Rock Against Racism.  “Under [interpretations of Ward], if an ordinance was not viewpoint-based, then it was content-neutral.  For example, a local government’s decision to eliminate religious speech or abortion-related speech was considered content-neutral because it was not viewpoint-based – as, for instance a regulation prohibiting ‘Christian speech’ or ‘pro-life speech’ was and remains….Reed saw what Ward missed – that topical censorship is still censorship….Few regulations will survive this rigorous standard”

US Supreme Court finds local sign ordinance an impermissible content-based restriction on speech

by Gary Taylor

Reed v. Town of Gilbert
United States Supreme Court, June 18, 2015

Gilbert, Arizona adopted a comprehensive sign code governing outdoor signs.  It identifies various categories of signs based on the type of information they convey, then subjects each category to different restrictions.  The Sign Code generally prohibits the display of outdoor signs without a permit, but exempts 23 categories of signs from the permitting requirement.   Three of those 23 categories were relevant to the litigation before the Supreme Court:

  • Political signs – defined as signs designed to influence the outcome of an election, may be up to 32 square feet and only displayed during an election season.
  • Ideological signs – defined as signs communicating a message or idea that do not fit in any other sign code category, may be up to 20 square feet and have no time restrictions.
  • Temporary directional signs – defined as signs directing the public to a church or other qualifying event, are limited to 6 square feet, no more than 4 may be on a single property at the same time, and may be displayed no more than 12 hours before, and 1 hour after the event.

Good News Community Church (Church) is a small congregation that meets in various temporary locations in Gilbert on Sunday mornings.  The Church posted signs early each Saturday morning bearing the Church name and the time and location of the next service.  The signs were not removed until around midday Sunday.  Gilbert cited the Church for violation of the Sign Code, for failing to abide by the time restrictions for temporary directional signs and for failing to include an event date on the signs.  The Church appealed the citation and lost, brought suit in federal district court and lost, and lost on appeal to the U.S. 9th Circuit Court of Appeals.  The 9th Circuit ultimately concluded that the Sign Code’s sign categories were content neutral, and that the Code satisfied the intermediate scrutiny accorded to content-neutral regulations of speech.  The Church appealed to the U.S. Supreme Court.

Unlike the lower courts, the U.S. Supreme Court found the Sign Code to be a content-based regulation of speech.  It defines the categories of temporary, political and ideological signs on the basis of their messages and then subjects each category to different restrictions.  The restrictions thus depend entirely on the sign’s communicative content.  The 9th Circuit’s conclusion that the regulation was not based on a disagreement with the message conveyed “skips the crucial first step in the content-neutrality analysis: determining whether the law is neutral on its face.  A law that is content-based on its face is subject to strict scrutiny regardless of the government’s benign motives, content-neutral justification, or ‘lack of animus toward the ideas contained’ in the regulated speech….In other words, an innocuous justification cannot transform a facially content-based law into one that is content neutral.”

The 9th Circuit also erred in concluding that the Sign Code was content neutral because it does not mention any idea or viewpoint, let alone single one out for differential treatment.  The Supreme Court noted that while government discrimination among viewpoints, or based on the opinion or perspective of the speaker is a more blatant and egregious form of content discrimination, it is also discriminatory when government prohibits public discussion of an entire topic.  Gilbert’s Sign Code gives ideological messages more favorable treatment than messages concerning a political candidate, which in turn are give more favorable treatment than messages “concerning announcing an assembly of like-minded individuals.”  “That is a paradigmatic example of content-based discrimination.”

The 9th Circuit’s conclusion that the Sign Code made only speaker-based and event-based distinctions was also in error.  The restrictions for political, ideological, and temporary event signs apply equally no matter who sponsors them. “If a local business, for example, sought to put up signs advertising the Church’s meetings, those signs would be subject to the same limitations as such signs placed by the Church.”  Besides, speech restrictions based on the identity of the speaker are all too often simply a means to control content.

Having determined that the Sign Code was content-based and thus subject to strict scrutiny, the Supreme Court went on to conclude that the Sign Code did not pass Constitutional muster.  Gilbert did not demonstrate that the Code’s differentiation between the various types of signs being discussed furthered a compelling governmental interest.  Gilbert cannot claim that placing strict limits on temporary directional signs is necessary to beautify the town when other types of signs create the same problem.  Nor has it shown that temporary directional signs pose a greater threat to public safety than ideological or political signs.

The Supreme Court further observed:

Our decision today will not prevent governments from enacting effective sign laws. The Town asserts that an “absolutist” content-neutrality rule would render “virtually all distinctions in sign laws . . . subject to strict scrutiny, but that is not the case. Not “all distinctions” are subject to strict scrutiny, only content-based ones are. Laws that are content neutral are instead subject to lesser scrutiny. The Town has ample content-neutral options available to resolve problems with safety and aesthetics. For example, its current Code regulates many aspects of signs that have nothing to do with a sign’s message: size, building materials, lighting, moving parts, and portability. And on public property, the Town may go a long way toward entirely forbidding the posting of signs, so long as it does so in an evenhanded, content-neutral manner. Indeed, some lower courts have long held that similar content-based sign laws receive strict scrutiny, but there is no evidence that towns in those jurisdictions have suffered catastrophic effects. We acknowledge that a city might reasonably view the general regulation of signs as necessary because signs “take up space and may obstruct views, distract motorists, displace alternative uses for land, and pose other problems that legitimately call for regulation.” At the same time, the presence of certain signs may be essential, both for vehicles and pedestrians, to guide traffic or to identify hazards and ensure safety. A sign ordinance narrowly tailored to the challenges of protecting the safety of pedestrians, drivers, and passengers—such as warning signs marking hazards on private property, signs directing traffic, or street numbers associated with private houses—well might survive strict scrutiny. The signs at issue in this case, including political and ideological signs and signs for events, are far removed from those purposes.

Regulation of charitable donation bins was content-based, likely to be found unconstitutional

by Hannah Dankbar

Planet Aid v. City of St. Johns, Michigan
Federal 6th Circuit Court of Appeals, April 6, 2015

Planet Aid is a non-profit community development organization.  Among its activities, the organization gathers donations of clothing and shoes using unattended, outdoor donation bins. Planet Aid takes these donations and gives them to other organizations around the world.

To establish the donation bins Planet Aid gets consent from property owners of private businesses to put the bin on their property. Planet Aid aims to have donation bins in convenient locations and have a representative of the organization collect the donations on a weekly basis. There is contact information for the representative on the bin to be used on an as-needed basis.

In December 2012 Planet Aid placed two donation bins in the City of St. Johns, Michigan. At the time, St. Johns had no regulation of charitable donation bins. In January 2013 the City sent Planet Aid a letter that read, “clothing donation containers have been found to create a nuisance as people leave boxes and other refuse around the containers.” Planet Aid was instructed to remove the bins by January 23. If they did not remove the bins, the City would. An attorney for Planet Aid asked the City Attorney if they had to be removed by the 23rd, or if they could wait until the City Council/planning commission enacted an ordinance against the bins. Planet Aid was told to remove the bins, and was also told it did not have standing to appeal the decision because it did not own property where the bins were located. The City moved the bins and moved them to a City facility where they were later picked up by Planet Aid.

In December 2013 City Council addressed the issue of charitable donation bins. The planning commission had made a recommendation of a “total prohibition” of such bins to the Council.  At the Council meeting, the Mayor said other communities “had people dropping off their trash” at donation bins, although the Public Works Director responded that trash drop offs at the two bins had “very seldom” occurred.

Ordinance #618 was put in place.  The substantive prohibition of the ordinance read:

No person, business or other entity shall place, use or allow the installation of a donation box within the City of St. Johns….A donation box that exists on the effective date of this ordinance shall not be subject to the prohibition contained herein.

The purpose statement of the ordinance read:

It is the intent of this section to prohibit donation boxes to protect the health, safety and welfare of the citizens of the city by preventing blight, protecting property values and neighborhood integrity, avoiding the creation and maintenance of nuisances and ensuring the safe and sanitary maintenance of properties. Unattended donation boxes in the city may become an attractive nuisance for minors and/or criminal activity. It is also the intent of this section to preserve the aesthetics and character of the community by prohibiting the placement of donation boxes.

In February 2014 Planet Aid filed a complaint in district court claiming that the ordinance violated their First Amendment right of charitable solicitation and giving. They claimed that the ordinance is a content-based restriction and deserved strict scrutiny. The City claimed that the bins were advertisements, and therefore the ordinance is content-neutral. The District granted Planet Aid’s motion for a preliminary injunction pending trial, and the City appealed.

The US Supreme Court has held that speech regarding charitable giving and solicitation is a protected First Amendment activity, and has applied strict scrutiny to local ordinances that presume to regulate charitable giving activities.  The Supreme Court has not addressed unattended donation bins, but the Fifth Circuit invalidated a Texas law that required such bins to make note of whether the donated items would be sold or not (National Federation of the Blind of Texas, Inc. v. Abbott). The Fifth Circuit stated that “public receptacles are not mere collection points for unwanted items, but are rather “silent solicitors and advocates for particular charitable causes.” The Sixth Circuit agreed with the reasoning of the Fifth, and noted that just because speech related to charitable giving may take the form of a bin does not mean it deserves less than strong constitutional protection.

Still, government regulations of protected speech only receive strict scrutiny if they are content-based.  Government actions that merely regulates the time, place, and manner of protected speech are subject to an intermediate level of scrutiny.  The US Supreme Court has analyzed the content-based versus content-neutral question in a number of ways: (1) whether the “government has adopted a regulation of speech because of a disagreement with the message it contains” (Hill v. Colorado); (2) whether the regulation hinders the “communicative impact of the [the speaker’s] expressive conduct.” (Texas v. Johnson); (3) whether the legislature’s predominant intent regarded the content of speech, rather than its’ secondary effects (Renton v. Playtime Theaters, Inc.); (4) whether the regulation is “based on the content of the speech” and not “applicable to all speech irrespective of content” (Consol. Edison Co., 447 U.S. at 536.). Under the guidance of these factors the Sixth Circuit determined that Ordinance #618 was content-based because it only banned outdoor bins that share a common topic – charitable giving – and not other outdoor bins or receptacles  such as dumpsters.  The concerns about overflowing items, trash dumping, and the risk of children climbing into such receptacles apply with equal force to dumpsters, receptacles at recycling centers, and public and private trash cans.

Because the ordinance was found to be content-based, it must stand up to strict scrutiny. The Sixth Circuit determined that there was sufficient evidence on this question to justify the district court’s determination that Planet Aid was likely to succeed on the merits (thereby justifying the preliminary injunction).  For these reasons the Court affirmed the ruling from district court.

Illinois village must produce some evidence of negative secondary effects to adopt adult entertainment regulation

by Gary Taylor

Foxxxy Ladyz Adult World, Inc., v. Village of Dix
(Federal 7th Circuit Court of Appeals, March 10, 2015)

[I love the spelling of these places.  Apparently Xs and Zs are sexy!]

The Village of Dix is a “dry” municipality (it prohibits the sale of alcohol in village limits) of approximately 500 residents, located in Jefferson County, Illinois. In October 2010, Dirt Cheap, Inc. purchased commercial real estate in Dix and opened a nightclub offering erotic entertainment. Two years later, Foxxxy Ladyz Adult World, Inc. began to rent the property from Dirt Cheap. Now operated by Foxxxy Ladyz, the nightclub features nude dancing and is open to all members of the public age twenty-one and over. Although Foxxxy Ladyz does not sell alcohol, it allows its customers to bring their own alcoholic beverages (“BYOB”) onto the premises. Foxxxy Ladyz is one of the few commercial establishments in Dix, and is located across the interstate from the Village’s other businesses, residences, and grade school.
In December 2010, shortly after Dirt Cheap opened, Dix passed three ordinances: (1) an ordinance prohibiting open containers of alcohol in public, (2) a public nudity ban, an (3) a prohibition against the possession of alcohol in places of public accommodation, such as restaurants and retail establishments.  In adopting these ordinances, Dix conducted no studies of the possible negative secondary effects of erotic nightclubs or other adult entertainment establishments, nor did it reference studies done in other locales.  In 2013, the Village sent Foxxxy Ladyz a notice that it was in violation of all three ordinances.  Foxxxy Ladyz responded by filing suit.  Foxxxy Ladyz concededly operates in violation of all three ordinances; however, Foxxxy Ladyz argued that (1) the public nudity ban violates the Free Speech provisions of the First Amendment, and (2) Dix did not have the authority under Illinois law to pass the alcohol-related restrictions.  The district court sided with the Village, and Foxxxy Ladyz appealed.
Free Speech claim.  Foxxxy Ladyz contended that the Village must point to actual evidence of potential negative secondary effects – whether it be developed by the Village itself or cited from studies of other jurisdictions – for the necessary justification for the public nudity ban. Dix argued that because the language in its public nudity ordinance was intentionally modeled after bans in other jurisdictions  “that have been approved by the courts as being consistent with the Illinois and United States Constitutions” that the findings from those bans provide all the justification needed for its own ban.  The 7th Circuit found guidance in the following statement from the US Supreme Court in City of Los Angeles v. Alameda Books:

In Renton, we…held that a municipality may rely on any evidence that is “reasonably believed to be relevant” for demonstrating a connection between speech and a substantial, independent government interest. This is not to say that a municipality can get away with shoddy data or reasoning. The municipality’s evidence must fairly support the municipality’s rationale for its ordinance.

The 7th Circuit “has been consistent in requiring that a regulating body produce some specific, tangible evidence establishing a ling between the regulated activity and harmful secondary effects” (Citing Annex Books v. City of Indianapolis).  Based on the fact that Dix “has not offered an iota of evidence” on secondary effects, the 7th Circuit reversed he district court and remanded the case to district court.  The 7th Circuit noted that Dix may still have an opportunity to “demonstrate a reasonable belief in a causal relationship between public nudity and secondary effects” in litigation at the district court.

Alcohol restrictions.  The 7th Circuit interpreted Illinois law to confer on municipalities broad discretion to regulate alcohol consumption in order to promote public health and safety, including via the imposition of a prohibition on open containers of alcohol in public. The court also affirmed that the First Amendment “does not entitle a bar, its dancers or its patrons, to have alcohol available during a presentation of nude or semi-nude dancing.” Furthermore, the ordinances apply broadly to all public accommodations and do not, on their face, target establishments where protected expressive conduct is likely to occur. Under a rational basis test the Dix alcohol ordinances passed muster.

Ban on “profane discourse, rude or indecent behavior” near churches is impermissibly content based

by Gary Taylor

SNAP, Inc. v. Jennifer Joyce, Circuit Attorney for the City of St. Louis, et al
Federal 8th Circuit Court of Appeals, March 9, 2015

In 2012 the Missouri legislature enacted the House of Worship Protection Act.  It provides that a person commits the crime of disrupting a house of worship if he or she “intentionally and unreasonably disturbs, interrupts, or disquiets any house of worship by using profane discourse, rude or indecent behavior, or making noise either within the house of worship or so near it as to disturb the order and solemnity of the worship services.”  The Survivors Network of Those Abused by Priests (SNAP) is a non-profit organization that advocates for victims of sexual abuse by clergy.  Call to Action, Inc. is a non-profit organization that advocates for various changes in the Catholic Church, including the ordination of women, acceptance of gay, lesbian, and transgender people, and women’s participation as altar servers.  The members of both of these organizations (Plaintiffs) regularly meet near Catholic Churches to pray, hold signs and pictures, distribute literature, and attempt to communicate their messages to church personnel and parishioners.  Since the adoption of the Worship Protection Act members have been asked to move on, and have been threatened with jail by church ushers and parishioners; however, no plaintiff to the litigation has been arrested by Missouri officials, nor was evidence presented that plaintiff protesters have interfered in any way with churchgoers’ entry or exit from a house of worship.

Plaintiffs argued that their First and Fourteenth Amendment rights were violated by the Worship Protection Act.  They claimed that the Act chilled their expression and interfered with their ability to speak in public locations where their intended audience may be reached – church leaders, workers, and parishioners.  Defendants were granted summary judgment by the district court, and plaintiffs appealed to the 8th Circuit Court of Appeals.

The constitutionality of a restriction on speech depends in large part upon whether it is content based and thus “subject to the most exacting scrutiny,” or a content neutral time, place, or manner regulation subject to intermediate scrutiny.  The 8th Circuit focused on the Act’s ban on “profane discourse, rude or indecent behavior” in or near a house of worship and found that the ban is content based.  It noted that the US Supreme Court has stated that governments might “seize upon the censorship of particular words as a convenient guise for banning the expression of unpopular views.” It also noted that the “unreasonably disturbs, interrupts, or disquiets any house of worship” language is the type of language disapproved of by the Supreme Court, which has stated that “audience disapproval or general concern about disturbance of the peace does not justify regulation of expression….The government may not prohibit the expression of an idea simply because society finds the idea itself offensive or disagreeable.”  The 8th Circuit contrasted a US Supreme Court case that upheld a Colorado ban on people within 100 feet of a healthcare facility from approaching within 8 feet of another person for the purpose of “passing a leaflet or handbill, displaying a sign or engaging in protest….” It noted that the Colorado statute was content neutral because it regulated “only the places where some speech my occur” in contrast to the Missouri statute which requires an inquiry into whether speech is “profane” or “rude.”

The Worship Protection Act could not survive the exacting scrutiny required of content based regulation.  “The existence of content neutral alternatives to protect houses of worship from disruption, such as noise regulations…casts considerable doubt” on the government’s assertion that such regulations are necessary to achieve the state’s asserted interest in protecting the free exercise of religion.  The district court’s summary judgment in favor of the government was reversed.

ZBA’s denial of variance for billboard did not constitute unlawful prior restraint

by Rachel Greifenkamp

International Outdoor, Inc. v City of Roseville
(Michigan Court of Appeals, May 1, 2014)

In the City of Roseville, Michigan International Outdoor, Inc. (IO) applied to erect a billboard 70 feet high, 672 square feet total, 365 feet from property that was zoned residential. Due to regulations on billboards within city limits, the Building Department denied the application. IO appealed the decision to the Zoning Board of Appeals (ZBA) who also denied the application. IO then appealed to the circuit court, challenging the constitutionality of the ordinances.  After the circuit court also found in favor of the City, IO appealed to the State of Michigan Court of Appeals.

IO argued that the ordinances of the City of Roseville constitute an unconstitutional prior restraint because the city has not applied the stated objective standards for billboards found in the ordinance in a consistent manner. It maintained that the ZBA has ignored or waived those objective standards on an ad hoc basis, and relies solely on subjective criteria such as “in harmony with the general purpose of the sign ordinance,” “injurious to the neighborhood,” and “detrimental to the public welfare” when denying billboard applications.  These criteria, IO argued, have been found in previous court cases to be insufficiently precise and therefore unconstitutional prior restraint. The city countered that the circuit court was correct when it found the regulations on their face to be narrow, objective, and definite,  and that IO’s proposed billboard did not meet the standards of those regulations.

After noting that IO’s challenge was to the application of the ordinances by the ZBA, the court noted the key holdings in previous prior restraint cases:

  • A licensing scheme that gives public officials the power to deny use of a forum in advance of actual expression is a prior restraint on First Amendment liberties.
  • Any system of prior restraints on expression bears a heavy presumption against its constitutional validity.
  • A law subjecting the exercise of First Amendment freedoms to the prior restraint of a license must contain narrow, objective, and definite standards to guide the licensing authority.
  • Moreover, a licensing law that places “unbridled discretion in the hands of a government official or agency constitutes a prior restraint and may result in censorship.

Because IO could not meet the strict application of the narrow, objective, and definite terms of the city’s Sign Ordinance, it was required to present evidence that a variance from the ordinance was necessary; i.e., that a practical difficulty or unnecessary hardship existed. The record reflected that the ZBA applied this test in determining that a variance could not be granted.  the application of the test meant that the ZBA was not operating with unbridled discretion when it denied the variance.

Additionally, IO argued that commercial speech is protected under the First Amendment.  As such, any restriction or regulation must be advance a substantial government interest, and  the ordinance must be narrowly tailored to meet that interest. IO does not believe that it is narrowly tailored because the ZBA has the discretion to grant one request for a billboard otherwise restricted by the ordinance, but deny others. The court rejected this argument, noting that the stated purpose of the ordinance – “to protect the health, safety and welfare of the citizens of the City of Roseville, including but not limited to defining and regulating signs in order to promote aesthetics, to avoid danger from sign collapse and to regulate sign materials, avoid traffic hazards from sign locations and size, avoid visual blight and provide for the reasonable and orderly use of signs” – is a substantial governmental interest.  The court simply stated that IO provided “no relevant legal authority or factual support for its claim.

The circuit court’s decision in favor of the City of Roseville was affirmed.

US Supreme Court strikes down buffer zones around MA abortion clinics

by Gary Taylor

McCullen v. Coakley
(US Supreme Court, June 26, 2014)

In 2007, Massachusetts amended its Reproductive Health Care Facilities Act to make it a crime to knowingly stand on a public way or sidewalk within 35 feet of an entrance or driveway to any “reproductive health care facility,” defined as “a place, other than within or upon the grounds of a hospital, where abortions are offered or performed.” the Act exempted four classes of individuals, including “employees or agents of such facility acting within the scope of their employment.”  Another provision of the Act makes it a crime for the knowing obstruction of access to a reproductive health care facility. McCullen and others who attempt to engage women approaching Massachusetts abortion clinics in “sidewalk counseling” – offering information about alternatives to abortion and help in pursuing those options – raised First Amendment claims, arguing that the buffer zone displaced them from their positions outside clinics which considerably hampered their counseling efforts.  Their attempts to communicate with patients are further hampered by clinic escorts who accompany arriving patients through the buffer zones to the clinic entrances.

The US Supreme Court held that the Act violates the First Amendment.  First the Court noted that “public ways” and “sidewalks” are traditional public fora which have traditionally been open for speech activities.  The government’s ability to regulated speech in traditional public fora is very limited, where traditional time, place and manner restrictions on speech are allowed only if the restrictions (1) are justified without reference to the content of the regulated speech, (2) are narrowly tailored to serve a significant governmental interest, and  leave open ample alternative channels for communication of the information.

Content based.  The Court determined that the restrictions were neither content nor viewpoint based.  Just because the buffer zones were drawn specifically around abortion clinics does not mean the restriction was directed, on its face, at a specific message.  It was adopted in response to a record of crowding, obstruction and even violence outside abortion clinics that was not present in other locations.  Violation of the Act does not depend on what individuals say, but rather where they say it.  The Act’s purposes include protecting public health, safety and welfare, and unobstructed public use of streets and sidewalks.  Furthermore, the exemption for clinic employees was not an attempt to favor one viewpoint over another, but rather was necessary to allow them to enter and exit the clinics in the performance of their duties.

Narrowly tailored.  The Court determined that the buffer zone restriction was not narrowly tailored, in that it burdened substantially more speech than is necessary to further the government’s legitimate interests.  While it served the interest in public safety on sidewalks, it deprived the petitioners of their two primary methods of communicating their message: close personal conversations with arriving patients and distribution of literature.  Those forms of expression have historically been closely associated with the transmission of ideas.  Petitioners are not merely protesters; they seek not only to express their opposition to abortion but also to engage in personal conversations with women about various alternatives to abortion.  “It is thus no answer to say that petitioners can still be seen and heard by women within the buffer zones.  If all that the women can see and hear are vociferous opponents of abortion, then the buffer zones have effectively stifled petitioners’ message.  The Court suggested that Massachusetts could adopt legislation similar to the federal Freedom of Access to Clinic Entrances Act of 1994, which prohibits obstructing, intimidating, or interfering with persons obtaining or providing reproductive health services.  The Court also noted that the problems the legislation sought to address were principally limited to one Boston clinic on Saturday mornings.  The police are capable of singling out those who harass or intimidate patients, and so the restrictions in the Act burden substantially more speech than necessary to achieve the government’s public safety interests.  The government must demonstrate that such alternative measures that would burden substantially less speech would fail, not simply that the chosen route (buffer zones) is easier to enforce.

 

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