Seventh Circuit follows SCOTUS lead, upholds validity of distinction between on- and off-premises signs

by Gary Taylor

Adams Outdoor Advertising v. City of Madison, Wisconsin
Seventh Circuit Court of Appeals, January 4, 2023

Adams Outdoor Advertising (AOA) owns billboards throughout the Midwest, including 90 in Madison, Wisconsin. Like a majority of cities Madison adopted a sign ordinance to promote traffic safety and aesthetics. It comprehensively regulates “advertising signs,” which is defined under the ordinance as any sign advertising or directing attention to a business, service, or product offered offsite; in other words, a sign that advertises something unrelated to the premises on which the sign sits. The construction of new advertising signs has been banned under the Madison ordinance since 1989. Existing advertising signs were allowed to remain but cannot be modified or reconstructed without a permit and are subject to size, height, setback, and other restrictions. In 2009, Madison amended its sign ordinance to prohibit digital displays. In 2017, the definition of “advertising sign” was amended to remove references to noncommercial speech. Several of these amendments spurred lawsuits against Madison by AOA which are not relevant to the present case. As the ordinance now stands, the term “advertising sign” is limited to off-premises signs bearing commercial messages.

AOA initiated the present litigation based on the U.S. Supreme Court’s 2015 decision in Reed v. Town of Gilbert. Although the distinction between on-premises and off-premises signs was not at issue in Reed, AOA argued that, under Reed, any ordinance treating off-premises signs less favorably than other signs is a content-based restriction on speech and thus is unconstitutional unless it passes the high bar of strict scrutiny. The district court disagreed and applied intermediate scrutiny. Relying on the Fifth Circuit case of Reagan National Advertising v. City of Austin AOA appealed the district court ruling. When the U.S. Supreme Court agreed to take up the Austin case the Seventh Circuit delayed ruling on the AOA v. Madison case pending the outcome of Austin. As readers of this blog know, the U.S. Supreme Court used the Austin decision to clarify that nothing in Reed altered its earlier precedents applying intermediate scrutiny to billboard ordinances and upholding on-/off-premises sign distinctions as ordinary content-neutral “time, place, or manner” speech restrictions.

For time, place, and manner restrictions to be valid they need only be narrowly tailored to serve a significant governmental interest.” It has been established through countless cases that traffic safety and visual aesthetics are significant governmental interests. AOA nonetheless argued that the Madison ordinance failed intermediate scrutiny because the city failed to provide empirical evidence linking billboards to aesthetic or safety-related harms. Citing earlier precedent, the Seventh Circuit stated that “billboards, by their very nature…can be perceived as an esthetic harm” and the city “need not try to prove that its aesthetic judgments are right.” Likewise, the connection between billboards and traffic safety is too obvious to require empirical proof. “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.”

The Seventh Circuit affirmed the district court’s dismissal of AOA’s claim.

Supreme Court update

We’ve had a bit of action on the four land use related cases pending before the US Supreme Court, discussed here and here.  Oral arguments are being held today in the case of Marvin M. Brandt Revocable Trust v. United States.  The issue in the case:

Whether the United States retained an implied reversionary interest in rights-of-way created by the General Railroad Right of Way Act of 1875 after the underlying lands were patented into private ownership.

Tomorrow, oral arguments will be held in McCullen v. Coakley, the issues of the case being:

(1) Whether the First Circuit erred in upholding Massachusetts’s selective exclusion law – which makes it a crime for speakers other than clinic “employees or agents . . . acting within the scope of their employment” to “enter or remain on a public way or sidewalk” within thirty-five feet of an entrance, exit, or driveway of “a reproductive health care facility” – under the First and Fourteenth Amendments, on its face and as applied to petitioners; (2) whether, if Hill v. Colorado permits enforcement of this law, Hill should be limited or overruled.

The case of Mount Holly v. Mount Holly Gardens Citizens in Action was settled prior to oral arguments.  A copy of a press briefing about the terms of the settlement is here.  The issue of the case was whether disparate impact claims are cognizable under the Fair Housing Act.  An interesting audio article about the case is here (approximately 6 minutes).

Regulation of inflatable devices at car dealership withstands First Amendment scrutiny

by Kaitlin Heinen

PHN Motors, LLC v. Medina Township
(Federal 6th Circuit Court of Appeals, September 4, 2012)

PHN Motors  et al. in northeastern Ohio filed a complaint that Medina Township violated their First Amendment right to free expression, their Fifth Amendment rights under the Due Process clause, and their Fourteenth Amendment rights under the Equal Protection Clause. The complaint arose from the interpretation and enforcement of Medina Township Zoning Resolution (MTZR) § 603E, which prohibited PHN Motors from displaying inflatable devices at their car dealership in a commercial district of Medina Township.

PHN Motors displayed 27 inflatables owned and rented by Scherba Industries, Inc. and has been cited several times by the Medina Township Zoning Inspector in violation of MTZR § 603E as a result. PHN Motors claimed that MTZR § 603E is unconstitutionally vague and infringes upon their First Amendment free speech rights. They also alleged that the regulation was “unevenly” enforced because it was only sometimes enforced against PHN Motors and because it was enforced unequally between commercial and residential districts.

The district court ruled in favor of Medina Township on all claims, so PHN Motors appealed  to the U.S. 6th Circuit Court. They challenged the district court’s dismissal of its First Amendment claims, its finding that MTZR § 603E is not unconstitutionally vague thus not violating any due process rights, and its conclusion that Medina Township’s enforcement of MTZR § 603E does not violate any equal protection rights.

In regards to their First Amendment claim, PHN Motors argued that MTZR § 603E consists of a content-based regulation of both commercial and non-commercial speech, which violates the protections for free speech under the First Amendment. To the contrary, Medina Township argues that the regulation is content-neutral, and that PHN Motors’ speech is only commercial in nature. The U.S. 6th Circuit Court found the MTZR § 603E is a content-neutral restriction upon speech. More specifically, MTZR § 603E prohibits certain elements the may be added to signs in Medina Township, such as “elements which revolve, rotate, whirl, spin, or otherwise make use of motion to attract attention” as well as signs that “contain or consist of flags, banners, posters, pennants, ribbons, streamers, spinners, balloons, and/or  any inflatable devices, search light, or other similar moving devices.” Medina Township’s purpose behind the regulation is for an improvement in the aesthetics of the township’s commercial areas and to minimize motorist distractions that can potentially be a safety hazard for passing traffic. The 6th circuit court found that the regulation does not, on its face, regulate speech based upon its content. Additionally, the free speech in question is commercial in nature, which is expressly for the furtherance of economic interests. Even though PHN Motors counter-argues that many of the inflatables displayed depict holiday characters, the court found that they are used nonetheless as a brand-recognition tool, with the intent of attracting business. Commercial speech is provided a lesser protection by the Constitution, for which intermediate scrutiny is the appropriate standard of review to be applied. Intermediate scrutiny requires that the government restriction on speech be narrowly tailored to further a substantial governmental interest. Aesthetics and safety both can be considered substantial governmental interests. In regards to aesthetics, Medina Township has expressed a substantial need to clean up the appearance of its commercial areas. As for safety, minimizing distractions for passing motorists is also substantial. The objectives of MTZR § 603E are “reasonable” and “not more extensive than necessary.” So the regulation is a reasonable means to achieve the ends of improved aesthetics and increases motorist safety. A ban on inflatables is not more extensive than necessary to advance these interests then. In conclusion, no First Amendment violations occurred.

Addressing whether MTZR § 603E is unconstitutionally vague, the 6th circuit court  began with the presumption that local zoning ordinances are valid and applied the standard of whether or not a person of ordinary intelligence would be able to determine what conduct is regulated or prohibited. PHN Motors argues that MTZR § 603E implies that movement is necessary to prohibit the use of inflatables, and that the enforcement of this regulation is inconsistent because it is left solely to the Zoning Inspector, who is unsupervised and enforcement is left to her discretion. The 6th circuit court ruled that the regulation was not vague, confusing, ambiguous, or inconsistent. Rather, the legislative intent behind the regulation was clear in regards to its ban on inflatables, the enforcement of the regulation does not violate PHN Motors’ due process rights, and a person of ordinary intelligence would know that inflatables are prohibited by the plain language used in the regulation. Considering the multiple references to a ban on devices that employ movement and “as inflatables of the type displayed by BDK are soft and often move in even the slightest breeze,” it can reasonably be concluded that all inflatables are banned. As for the Zoning Inspector, she and Medina Township have consistently upheld that inflatables are banned and her enforcement of this is overseen by the Board of Zoning Appeals. All in all, the court concluded that MTZR § 603E is not unconsitutionally vague.

Lastly, the court addressed PHN Motors’ Equal Protection claim in regards to the enforcement of the ban in commercial areas, but not residential. The court found that PHN Motors did not provide adequate evidence that property residing in residential districts is similarly situated to property residing in commercial districts. Medina Township, however, showed that property zoned for residential use is different than property zoned for commercial use in that residential districts draw significantly less traffic compared to commercial districts and that commercial districts are visitors’ first impression of the town. As a result, Medina Township has a greater interest in regulating the aesthetics and safety of these areas. PHN Motors also failed to show that the differential treatment lacks a rational connection to a legitimate government interest. The Zoning Inspector even testified that she does not enforce the inflatable ban in residential areas because MTZR § 603E does prohibit them there, since they are not for purposes of advertisement on residential property. The court concluded that no Equal Protection violations happened.

The ruling of the district court was affirmed.

St. Louis’s definition of ‘sign’ unconstitutionally content-based

by Victoria Heldt and Gary Taylor

Neighborhood Enterprises, Inc.; Sanctuary in the Ordinary; Jim Roos v. City of St. Louis; St. Louis Board of Adjustment
(Federal 8th Circuit Court of Appeals, July 13, 2011)

Neighborhood Enterprises manages the properties of Sanctuary in the Ordinary (SITO), a non-profit organization working with rental properties in St. Louis.  Jim Roos, the founder of both organizations, is involved in the Missouri Eminent Domain Abuse Coalition (MEDAC).  Roos and MEDAC commissioned a sign/mural to be placed on the side of a SITO-owned building.  The sign mural/ was approximately 363 square feet in area and was visible from Interstates 44 and 55.  It read “End Eminent Domain Abuse” inside a red circle with a slash through it.  The sign was similar to the design MEDAC uses in other literature [NOTE: The city of St. Louis had previously condemned 24 buildings owned either by SITO or Neighborhood Enterprises for a private development project] .

In April 2007, the City’s Division of Building and Inspection issued a citation for an “illegal sign” and declared that a permit was required for the sign to be in compliance.  SITO applied and was denied the permit because the sign was painted on a building that was zoned “D” or “Multiple Family Dwelling,” where signs are limited to a maximum 30 square feet, and also because the wall face did not have street frontage and therefore was not allowed to have signage.  SITO appealed to the Board of Adjustment and countered that the sign was, in fact, a “work of art” not required to meet the zoning code’s definition of “sign.” The City justified the requirements in its Zoning Code on concerns for traffic safety and aesthetics.  The Board upheld the zoning administrator’s denial on July 2007.  SITO appealed.

In district court SITO argued, among other things, that the zoning regulations were invalid and unconstitutional pursuant to the First and Fourteenth Amendments to the U.S. Constitution, and as such the Board’s decision should be reversed. The district court granted summary judgment in favor of the City and the Board, finding the zoning regulations were not in violation of the U.S. Constitution and that the Board’s decision was not arbitrary, capricious, unreasonable, unlawful or in excess of the Board’s jurisdiction.  SITO appealed this decision to the 8th Circuit.

On appeal, the 8th Circuit first looked to the issue of standing.  The City and Board argued that SITO only has standing to challenge the provisions within the Zoning Code that were actually applied to the decision to deny the sign permit.  It claimed that SITO could not “show a causal connection between its purported injury and the provisions of the zoning code not applied to it.”  The Court found that SITO had standing to challenge the clauses that were cited in the denial of the permit.  Additionally, it could challenge the sections of the Code that defined a sign and the scope of signs allowed.

SITO’s free speech claim was grounded in the belief that the sign regulations were “riddled with content-based exemptions and restrictions.”  Furthermore, traffic safety and aesthetics were not previously considered “compelling” interests of the government.  The Court found that the Code’s definition of a sign was unconstitutionally content-based because “the message conveyed determines whether the speech is subject to the restriction.”  If a sign/mural of the exact same dimensions and at the same location contained a symbol or crest, or if it were a national, state, religious, fraternal, professional or civic symbol it would not be subject to the city’s regulation.  The Court also found that while the regulations may generally promote aesthetics and traffic safety, the city failed to show how the distinctions between exempt and non-exempt signs found in the code further those goals. The court further held that the code’s exemptions are not narrowly tailored to accomplish goals of traffic safety or aesthetics which, “while significant, have never been held to be ‘compelling’ government interests.

The Court determined the regulation’s definition of a sign to be a violation of the First Amendment but could not rule on whether those clauses could be effectively separated from the Code since the district court never addressed the issue.  It reversed the decision and remanded the case in order for the district court to rule on that matter.

Township ordinance regulating billboards passes constitutional challenges

by Victoria Heldt

Township of Blair v. Lamar OCI North Corporation
(Michigan Court of Appeals, October 27, 2010)

Lamar OCI North Corporation (Lamar) leases property along US highway 31 on which it maintains commercial billboards.  Ordinances in the Blair Township Zoning Ordinance (BTZPO), passed in 2005, prohibit billboards exceeding 300 square feet in area, 30 feet in height, and closer than 2,640 feet to another billboard.  One of Lamar’s billboards was in violation of all three of those stipulations, but was allowed as a nonconforming use since it was constructed before the relevant ordinances in BTZPO were passed.  In 2005, Lamar removed a portion of the sign and installed an LED display face on the remaining portion of the board.  This action brought the sign in compliance with the area and height requirements, yet it still violated the distance requirement.

The Township filed suit in district court claiming that the sign constituted a nuisance and Lamar countered with a claim that the spacing requirement between signs violated the First Amendment.  The district court ruled in favor of the Township, but found a portion of the governing ordinance invalid under the First Amendment due to vagueness and removed it.  The court ordered the removal of the billboard unless it appealed the ruling, in which case it could remain until the resolution of the appeal.

On appeal, Lamar first argued that Michigan law prohibited the Township from disallowing modifications to nonconforming uses if they reduce the nonconformity.  The Court acknowledged that the Township has authority to regulate billboards under Article 20 under the BTZO.  Specifically, the Township governs nonconforming uses under Section 20.08 which states that the ordinance may not prohibit alterations to the nonconforming use unless the cost of the alterations exceeds 30% of the cost to replace the sign.   The Court noted that Lamar’s argument was invalid, since it cited cases that were not factually similar.   The changes to Lamar’s sign exceeded 30% of the cost of replacement, so the BTZO had authority to prohibit them.  Lamar failed to show that the trial court lacked authority to eliminate the nuisance.

Lamar next claimed that, since one sentence of the governing ordinance was stricken due to vagueness, the district court should not have been able to find them in violation of the ordinance.  The sentence removed read:  “If the face, supports, or other parts of a nonconforming sign or billboard is structurally changed, altered, or substituted in a manner that reduces the nonconformity, the Zoning Administrator may approve the change.”  The trial court ruled that the phrase gave unbridled and vague authority to the Zoning Administrator.  The Court found that the sentence was able to be removed without altering the goal or effectiveness of the ordinance.  Another question the Court asked itself was whether the ordinance would have been passed in the first place had it been known that the sentence would be stricken.  They found that it would, so the removal of the sentence did not render the clause ineffective.  Lamar claimed that the Court should have eliminated the need for permission from the Zoning Administrator to solve the problem and retain the ability to reduce nonconformities; i.e., that requiring permission constituted prior restraint of speech.  They based their argument on Shuttlesworth v. Birmingham in which the Court ruled against an ordinance requiring a permit to protest.  The Court rejected Lamar’s argument, stating that Shuttlesworth did not apply to the facts in this case because the Township was not trying to restrict the content of the speech.

Lastly, Lamar challenged the constitutionality of the distance requirement found in the ordinance.  The Township claimed the requirement was in place to “enhance the aesthetic desirability of the environment and reduce hazards to life and property in the township.”  When analyzing restrictions on free speech, the Court considers four factors:  1) The First Amendment protects commercial speech only if that speech concerns lawful activity and is not misleading.  A restriction on otherwise protected commercial speech is valid only if it;  2) seeks to implement a substantial governmental interest; 3) directly advances that interest; and 4) reaches no further than necessary to accomplish the given objective.  In this case, the Court found that lawful commercial speech was involved and that “promoting aesthetic desirability of the environment and reducing hazards to life and property in Blair Township are of substantial governmental interest.”  It also found that the ordinances also passed the last two factors of the four-pronged test.  Consequently, the Court affirmed the trial court’s decision.

Warren, Michigan adult entertainment restrictions pass constitutional muster

by Melanie Thwing

Big Dipper Entm’t, L.L.C. v. City of Warren

(U.S. Court of Appeals Sixth Circuit, April 13 2011)

In 2006 the City of Warren, Michigan amended the city code to restrict the location of adult businesses. This was in an attempt to “halt property value deterioration,” “eliminate the causes of deterioration,” and “eliminate blight.” Before enacting this ordinance the City received and reviewed 49 studies and reports about secondary effects of adult businesses.

The City published a notice of intent to amend Section 14.01 of the City code, which again was to “prohibit the location of sexually oriented businesses within the boundaries of the Warren Downtown Development Authority.” A temporary ban on all new permits was enacted during the consideration of the proposed amendment.

Big Dipper Entertainment filed a petition to operate a topless bar one day prior to the ban going into effect. The city code specifies that the application must be acted upon within twenty days. The city clerk denied the application after twenty-four. Two years later in 2008 Big Dipper filed this U.S.C. § 1983 action in federal district court, arguing that Section 14.01 of the Warren City Code violates the First Amendment, and that the untimely rejection of the application acted as a prior restraint on protected expression. The district court granted summary judgment for the City and Big Dipper appealed to the Sixth Circuit.

Big dipper first argued that § 14.01 was an unconstitutional restriction on speech, and that the main purpose of § 14.01 was not to limit secondary effects but to prevent new adult businesses from opening. The Sixth Circuit noted that “the speech at issue here was that conveyed by a topless bar” and it is common sense to say that in a democracy “society’s interest in protecting this type of expression is of a wholly different, and lesser magnitude than the interest in untrammeled political debate.”  To satisfy its burden, the city need only show that its “predominate concerns were with the secondary effects” of adult businesses.  The city met this burden through the evidence provided in the collection of studies and reflected in the city council meeting minutes.

Also Big Dipper argued that the district court disregarded their expert’s analysis that showed that § 14.01 restricted locations to only ten potential sights from thirty-nine. The Sixth Circuit noted that Big Dipper did not raise this issue in district court, and that the burden to create a genuine issue of material fact falls to Big Dipper not the district court. Only two applications for adult businesses were filed in the five years leading up to the litigation. Even a reduction from thirty-nine potential sites to ten, as would be the result of § 14.01 still supplies almost thirteen times more sites than the five-year demand. This was “more than ample for constitutional purposes.” The decision of the district court was affirmed.

US Supreme Court says ethics laws do not violate First Amendment speech rights

by Gary Taylor

Nevada Commission on Ethics v Carrigan
(United States Supreme Court, June 13, 2011)

The Nevada Commission on Ethics administers and enforces Nevada’s Ethics in Government Law, Nev. Rev. Stat. §281A.420(2), which requires public officials to recuse themselves from voting on, or advocating the passage or failure of, “a matter with respect to which the independence of judgment of a reasonable person in his situation would be materially affected by…his commitment in a private capacity to the interests of others,” which includes a “commitment to a [specified] person,” such as a member of the officer’s household or the officer’s relative, or “any other commitment or relationship that is substantially similar.”

In 2005 the Commission investigated Michael Carrigan, an elected member of the Sparks, Nevada city council, who voted to approve a hotel/casino project proposed by a company that used Carrigan’s long-time friend and campaign manager as a paid consultant. The Commission concluded that Carrigan had a disqualifying conflict of interest under the “any other commitment or relationship that is substantially similar” catchall provision of the Ethics in Government Law.  The Commission censured him for failing to abstain from voting on the project, but did not impose a fine on him because the violation was not willful (the Sparks city attorney had advised Carrigan that disclosing the relationship with his campaign manager would satisfy his obligation under the law). Carrigan sought judicial review, arguing that the Nevada law violated the First Amendment. The State District Court denied the petition, but the Nevada Supreme Court reversed, holding that voting is protected speech, and that the law’s catchall definition was unconstitutionally overbroad.

The United States Supreme Court disagreed with the Nevada Supreme Court. The Court found restrictions on legislators’ voting are not restrictions on legislators’ protected speech. A legislator’s vote is the commitment of his apportioned share of the legislature’s power to the passage or defeat of a particular proposal. He casts his vote “as trustee for his constituents, not as a prerogative of personal power.” Moreover, voting is not a symbolic action, and the fact that it is the product of a deeply held or highly unpopular personal belief does not transform it into First Amendment speech. Even if the mere vote itself could express depth of belief (which it cannot), the Court noted that in previous cases it had rejected the notion that the First Amendment confers a right to use governmental mechanics to convey a message.

The Court found support for its decision in “early congressional enactments,” which offer “contemporaneous and weighty evidence of the Constitution’s meaning.” Within 15 years of the founding, both the United States House and the Senate adopted recusal rules. Federal conflict-of-interest rules applicable to judges also date back to the founding. “[A] ‘universal and long-established’ tradition of prohibiting certain conduct creates ‘a strong presumption’ that the prohibition is constitutional.” The notion that Nevada’s recusal rules violate legislators’ First Amendment rights is also inconsistent with long-standing traditions in the States, most of which have some type of recusal law.

The Court also found that laws that prohibit a legislator who has a conflict from advocating its passage or failure are also valid. If it is constitutional to exclude an elected official from voting, then his exclusion from advocating during a legislative session is similarly constitutional.  Such speech limitations are reasonable time, place, and manner limitations.

The U.S. Supreme Court reversed and remanded the case.

US Supreme Court to hear land use conflict of interest case

The U.S. Supreme Court is scheduled to hear oral arguments on April 27 on a conflict of interest case originating in Sparks, Nevada, where a city councilman voted on a proposed casino that his campaign manager helped develop.  The Nevada Ethics Commission said the councilman had a clear conflict of interest, and should have recused himself, even though the Sparks city attorney told him that casting his vote would be acceptable as long as he publicly disclosed his relationship with the developer.  The case focuses on the councilman’s free speech rights.

The question as presented on the U.S. Supreme Court docket is here.  A USA Today article on the case can be found here.  A recent editorial from the Sparks Tribune is here.

Hermosa Beach (CA) total ban on tattoo parlors held to violate First Amendment

by Gary Taylor

Anderson v. City of Hermosa Beach (CA)
(Federal 9th Circuit Court of Appeals, September 9, 2010)

Anderson sought to establish a tattoo parlor in the City of Hermosa Beach (city), but the Hermosa Beach Municipal Code effectively bans tattoo parlors. Anderson sued the city alleging that the code provision is facially unconstitutional under the First and Fourteenth Amendments. The parties filed cross-motions for summary judgment, and the district court denied Anderson’s motion and granted the city’s motion. Anderson appealed the decision to the 9th Circuit Court of Appeals.

Because of the potential health concerns implicated by tattooing, the State of California requires “[e]very person engaged in the business of tattooing . . . [to] register . . . with the county health department of the county in which that business is conducted.”   The city lies within the County of Los Angeles (County). There are nearly 300 tattoo establishments in the County and over 850 tattooists. However, the County has only one inspector monitoring the parlors. Many tattoo parlors have never been inspected and are subject to no regulations other than the requirement to register with the County. Ostensibly because of the health concerns associated with tattooing and the lack of adequate County inspection the Hermosa Beach Municipal Code does not list tattoo parlors as a permitted use in any district. Indeed, on November 20, 2007, the City’s Planning Commission adopted a resolution against amending the Code to permit tattoo parlors.

The Court of Appeals began its analysis with a recognition that while pure speech is entitled to First Amendment protection unless it falls within one of the “categories of speech . . . fully outside the protection of the First Amendment,” (obscenity, conduct intending to express an idea is constitutionally protected only if it is “sufficiently imbued with elements of communication to fall within the scope of the First and Fourteenth Amendments,” which means that “[a]n intent to convey a particularized message [is] present, and . . . the likelihood [is] great that the message w[ill] be understood by those who view it.” Even where conduct expressive of an idea is protected by the First Amendment, “[t]he government generally has a freer hand in restricting expressive conduct than it has in restricting the written or spoken word.”  Accordingly, the Court’s task was to determine whether tattooing is (1) purely expressive activity or (2) conduct that merely contains an expressive component.

The Court concluded that the city’s ban on tattoo parlors was facially unconstitutional because tattooing is purely expressive activity, rather than conduct expressive of an idea.  “Tattoos are generally composed of words, realistic or abstract images, symbols, or a combination of these, all of which are forms of pure expression that are entitled to full First Amendment protection.”  It noted that the principal difference between a tattoo and a pen-and-ink drawing that would unquestionably be considered purely expressive, is that a tattoo is engrafted onto a person’s skin rather than drawn on paper. This distinction has no significance in terms of the constitutional protection afforded the tattoo.

The Court further found that the tattooing process (which is prevented from occurring because of the ban on tattoo parlors) is similarly purely expressive activity.   “Neither the Supreme Court nor our court has ever drawn a distinction between the process of creating a form of pure speech (such as writing or painting) and the product of these processes (the essay or the artwork) in terms of the First Amendment protection afforded. Although writing and painting can be reduced to their constituent acts, and thus described as conduct, we have not attempted to disconnect the end product from the act of creation.

Finally, the Court concluded that the business of tattooing qualifies as purely expressive activity rather than conduct with an expressive component, and is therefore entitled to full constitutional protection.  It cited cases that established that “the degree of First Amendment protection is not diminished merely because the protected expression is sold rather than given away.”

Having concluded that the tattoo, the tattooing process, and the business of tattooing are purely expressive activities, the Court then considered whether the city’s total ban on tattoo parlors was a reasonable time, place and manner restriction.  The Court noted particular concern with laws that foreclose an entire medium of expression, because “by eliminating a common means of speaking, such measures can suppress too much speech.” The Court concluded that the total ban was substantially broader than necessary to achieve the city’s significant health and safety interests, and it entirely foreclosed a unique and important method of expression.

First Amendment claim suffers Chernobyl-like fate before 7th Circuit

by Allison Arends

Illinois Dunesland Preservation Society v. Illinois Department of Natural Resources
(Federal 7th Circuit Court of Appeals, October 14th, 2009)
(For a map of the geographic boundaries of the federal courts of appeals click here)

Park authority’s refusal to allow plaintiff’s pamphlet in display racks did not cut off alternative avenues for plaintiff’s message.

Illinois Beach State Park is a large state park abutting Lake Michigan in northeastern Illinois, with two million visitors a year.  State officials and the state agency that operates the park refused to allow the plaintiff to place its two-page pamphlet in the park’s display racks.  The pamphlet recommended “commonsense approaches… for minimizing exposure to you and your family from asbestos contamination while at the beaches of Illinois Beach State Park.” Asbestos was known to have contaminated the beaches of the park from a nearby site on which Johns-Manville had once manufactured building materials.  The pamphlet goes on to describe the specific instances where asbestos could be an issue when visiting the park as a result of the sand, and also describes how to reduce the chances of being affected. The Beach’s display racks contain a variety of brochures selected by park officials, and up until 2004, included a “fact sheet” about the asbestos in the park. The park authorities do not dispute the fact that the park does in fact contain asbestos fibers, but recent studies have found that the levels present in the beach sand were not enough to affect human health. The plaintiff, a non-profit corporation that helped create and continues to support the park filed suit against state officials and the state agency that operates the park, charging infringement of free speech for refusal to allow the pamphlets in the display racks. 

The author of the court’s opinion, Justice Richard Posner, first observd that “lawyers in federal appeals invariably frame their arguments in language from Supreme Court opinions.  In this case which involves a First Amendment issue the lawyers have treated us to a barrage of unhelpful First Amendment jargon.” The “jargon” described the different kinds of public forums and their different standards for limitations on private speech.  A “traditional public forum” is a street or park, or some other type of public property that has long been used for expressive activity.  A “designated public forum,” such as a public theater, is one which was created specifically for expressive activity by private persons. The third category-the “non-public forum”- is made up of government-owned facilities intended for a specific purpose, and allows the government to limit expression to only that which furthers the purpose for which it was created. Justice Posner failed to see how “forum analysis” was helpful in deciding most First Amendment cases.  “The constant [among all these cases] is that regulation is not to be used as a weapon to stifle speech.”

Plaintiff argued that the park falls within the definition of a “traditional public forum” and therefore private speech can only be limited by very narrow and specific circumstances; however, the court determined that forum analysis did not address the issue of the display racks.

Which brings us to the compelling practical objections to the plaintiff’s position. Display racks crammed with brochures and pamphlets are omnipresent in public property in the United States, not only parks and other areas of public recreation but also turnpike service plazas and the lobbies of government buildings. If the plaintiff’s conception of freedom of speech prevailed, every clerk responsible for stocking such a display rack would face a potential First Amendment suit by an interest group that wanted to influence government action or public opinion.

The defendant’s argued that the public forum analysis does not apply because this case is an issue of “government expression” and therefore they have a right to restrict the plaintiff’s “frightening” pamphlet because the selection of pamphlets in the park is a “vehicle of the government’s expression,” and to allow the pamphlet would cause visitors to, “flee the Park” contradicting the message the Park was intending to make. The pamphlets chosen for the racks are designed to attract people to the park, and to Illinois. “The choice of the materials conveys a message that is contradicted by the plaintiff’s pamphlet.” 

The message of the publications in the display racks is: come to the park and have a great time on the sandy beaches. The message of the plaintiff’s pamphlet is: you think you’re in a nice park but really you’re in Chernobyl, so if you’re dumb enough to come here be sure not to step on the sand because that would disturb or agitate it, and to scrub under your fingernails as soon as you get home.

The court found that denying the plaintiff’s access to the display racks did not cut off other avenues of speech at the Park. Because no special permit or license is required to hand out pamphlets to Park visitors, and therefore alternative avenues of expression were still open to the plaintiffs, the court affirmed there was not violation of the plaintiff’s First Amendment rights.





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