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RANDAL R. MORRISON'S SIGN REGULATION / PUBLIC FORUM BULLETIN
SUMMER 2011
In this edition:
U.S. Supreme Court - First Amendment Decisions 2010-2011"God Hates Fags" Funeral Protest Signs
Violent Video Games
Free Speech in Medical RecordsPolitical and Protest Signs
Abortion Protests at White House
Election Day Restrictions
Political Ads on Public Benches
Anti-Islamic Ads on Buses
Religious Protest on Privately Owned SidewalkBillboards
Billboard or "Palin for President" Pole Sign?
Billboards on City Property - Waive the Normal Rules?
Digital Conversion
Electronic Billboard in Residential Area
Relocation - Delay Damages
Conversion of Onsite Signs to Offsite UseMurals
Removal of "Labor History" Mural from State Labor Dept
Eminent Domain Protest
Canine Care Center - Business Sign or Art Mural?
Special Treatment of Murals
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Now Available
Political Signs and the First Amendment
Restrictions on Location
Limits on Display Time
Limits on Size, Height, and Number
Permits, Fees, and Removal Bonds
Private Party Political Signs on Public Property
Anonymous Political Speech
This book is available only on Amazon.com. In the search box, enter "Political Signs Free Speech."
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U.S. SUPREME COURT
FIRST AMENDMENT DECISIONS OF THE 2010-2011 TERM
"God Hates Fags" Funeral Protest Signs. Members of Westboro Baptist Church (Topeka KS), picketed military funeral with anti-homosexual protest signs, including "Fags Doom Nations," "Thank God For Dead Soldiers," etc. Father of deceased serviceman sued the church leaders for intentional infliction of emotional distress, privacy intrusion and civil conspiracy; a jury awarded the father millions in compensatory and punitive damages. Decision: All the church's speech on signs was protected by the First Amendment. The messages concerned matters of public concern and debate, and could not be proved false. The church is immune from tort liability; the jury's monetary award is invalid. Snyder v. Phelps, U.S. Supreme Ct. No. 09-751, March 2, 2011; www.supremecourt.gov/opinions/10pdf/09-?751.pdf.
Violent Video Games. California adopted a law that prohibited the sale of violent video games to minors and required an "18" label for sales to adults. Such games were defined as presenting the "killing, maiming, dismembering, or sexually assaulting an image of a human being . . ." depicted in a way that a "reasonable person, considering the game as a whole, would find [that it] appeals to a deviant or morbid interest of minors," that is "patently offensive to prevailing standards in the community as to what is suitable for minors," and that "causes the game, as a whole, to lack serious literary, artistic, political, or scientific value for minors." Decision: Like books, movies and plays, video games are protected by the First Amendment because they communicate ideas through characters, dialog, plot and music. Moral judgments about art and literature are for individuals, not government. A few narrow classes of speech - obscenity, fighting words, incitement - have no protection. Legislatures cannot add to the list of unprotected categories just by deciding that certain speech is too dangerous. States do not have a free floating power to restrict ideas to which children may be exposed. Many classics in childrens' literature - Grimm's Fairy Tales, Snow White, Cinderella, etc., contain brutal violence. While some video games are disgusting, that is not a valid basis for restricting expression. This content-based law does not survive "strict scrutiny;" it is unconstitutional. Brown v. Entertainment Merchant's Ass'n, U.S. Supreme No. 08-1448, June 27, 2011, available at: www.supremecourt.gov/opinions/10pdf/08-1448.pdf.
Free Speech in Medical Records. A Vermont law restricted the sale, disclosure and use of pharmacy records that showed the prescribing patterns of particular doctors. The law was challenged by data miners and pharmaceutical manufacturers. Decision: This law is not justified by government's interests in physician confidentiality, protecting doctors from harassing sales practices, and protecting doctor-patient relationship. Furthermore, it does not permissibly advance the state's goals of lowering the costs of medical services and promoting public health. This law is unconstitutional. Sorrell v. IMS Health Inc., U.S. Supreme Ct. No. 10-779, June 23, 2011; full decision: www.supremecourt.gov/opinions/10pdf/10-779.pdf.
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POLITICAL AND PROTEST SIGNS
Abortion Protests at White House. Abortion protest group notified DC police that they planned to chalk the sidewalk in front of the White House on the anniversary of Roe v. Wade. Police gave permission for peaceful assembly, and to display signs and banners, but forbade chalking the sidewalk, citing a law forbidding defacement of public property. Decision: The proposed chalking is expressive conduct, and the sidewalk in front of the White House is a traditional public forum. The anti-defacement law is content neutral; it prohibits certain expressive conduct (i.e. writing, marking, drawing, or painting), without reference to message. It is narrowly tailored to control the esthetic appearance of the street in front of the White House, a substantial governmental interest; it leaves open adequate alternatives. The "no defacement" law is constitutional; the protestors were not entitled to a permit allowing chalking. Mahoney v. Doe, D.C. Circuit No. 09-7131, June 21, 2011, 2011 WL 2451014.
Pregnancy Counseling. Baltimore City Council passed a law requiring pregnancy counseling services which did not perform abortions, or make referrals for abortions, to post a sign so stating. Decision: The ordinance violates the Freedom of Speech Clause and is unenforceable. Whether a provider of pregnancy-related services is "pro-life" or "pro-choice," it is for the provider-not the government-to decide when and how to discuss abortion and birth-control methods. O'Brien v. Mayor and City Council of Baltimore, U.S. Dist. Ct. MD, No. 10-760, Jan. 28, 2011, 768 F.Supp.2d 804.
Political Signs - Electioneering. Minnesota state law prohibits the display of campaign material, posting of signs, and attempts to solicit votes within 100 feet of a polling place on election day. Various political groups charge that the state law violates both the state and federal constitutions. Decision: the state constitution's free speech protections are coextensive with the federal constitution. In Burson v. Freeman, 504 U.S. 191 (1992), the U.S. Supreme Court validated an essentially identical law under the federal constitution; that precedent controls. The state may prohibit "apparel that expresses support for a political ideology is reasonably related to the legitimate state interest of maintaining peace, order, and decorum at the polls." Case dismissed. Minnesota Majority v. Mansky, U.S. Dist. Ct. Minnesota, Case No. 10-4401, April 29, 2011, 2011 WL 1675995.
Political Ads on Benches. City granted permits for private company to install courtesy bus benches and display adverting on them; however, the permits forbade political advertising because the city wanted to remain politically neutral. When original permits expired and new permits were granted to a different company, prior operator sued. First decision: the ban on political ads on the benches is unconstitutional. Later decision: Advertising company did not provide evidence that it lost revenue because of the ban on political advertising, so no damages can be awarded. Bench Billboard Co. v. Toledo OH, U.S. Dist. Ct., N.D. OH, Western Div., No. 3:07CV2027, 759 F.Supp.2d 905 (first decision, March 3, 2010); 2011 WL 135349 (later decision, Jan. 13, 2011).
Anti-Islamic Ads on Buses. State owned public transportation authority entered into a contract for CBS Outdoor to sell ads on its vehicles, to raise revenue. The contract had a content restriction policy that forbade ads promoting political causes, alcohol and tobacco, messages that are false, misleading or deceptive, defamatory or scornful holding persons or groups up to ridicule, obscene or pornographic, or advocating imminent lawlessness or unlawful violent action. In the past the authority displayed ads on buses that were sponsored by an atheist organization. Citing the "scorn or ridicule" policies, the authority refused an advocacy group's "anti-jihadi" ads. (According to news reports, they said: "Fatwa on your head? Leaving Islam? Got questions? Get answers!") Decision: The plaintiff is likely to prevail on claims that the refusal of the ads violated the group's free speech rights, because the authority does not have adequate guidelines for determining if speech is political, religious, or holds groups up to "scorn or ridicule." Pending trial, the authority may not apply its speech restrictions to the subject ads. American Freedom Defense Initiative v. Suburban Mobility Authority for Regional Transportion, U.S. Dist. Court, E.D. Michigan, No 10-12134, March 31, 2011, 2011 WL 1256918. This matter is now on appeal.
Religious Protest on Private Sidewalk: Pastor & supporters picketed on sidewalk owned by casino, but located adjacent to public sidewalk. Their signs protested "gambling, sodomy, abortion, weak-kneed Baptists and other various and sundry sins." Police and private security told the pastor and his supporters to move their demonstration across the street, onto public sidewalk. Decision: Even though the sidewalk was privately owned, it was open to the public and part of the city's transportation grid; thus, it was a "traditional public forum." Because a jury could decide that the police officer violated the pastor's free speech rights, and award damages, the case will proceed. But to get damages against the private security officer, for violation of religious rights, the pastor must show that the security officer had "actual animus" (ill will) toward the pastor's religion; because no such claim is made, that part of the case is dismissed. Lewis v. McCracken, U.S. Dist. Ct., So. Dist. Ind., No. 4:09-cv-76, March 21, 2011, 2011 WL 1085334, ___ F.Supp.2d ___.
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BILLBOARDS
Billboard or "Palin For President" Pole Sign? Sign company applied for building permit to erect a 50 foot high "pole sign" facing a freeway in a billboard industry standard size (14x48) and displaying "Palin For President 2012"; the application was denied because the city bans billboards. After suit was filed, the city amended the sign ordinance, but kept the same size limits for pole signs and continued the billboard ban. Decision: Sign company has standing only as to the rules that led to permit denial. Under the earlier law, the pole sign size limit was 562.5 sf per face, while the application proposes 672 sf per face. The size limit is valid; the permit was properly denied. Herson v. City of San Carlos CA, N.D. Cal. No. 09-09-04187, June 2, 2010, 714 F.Supp.2d 1018; affirmed in unpublished memo, Ninth Circuit No. 10-16445, May 16, 2011, 2011 WL 1838772, petition for rehearing denied. [Disclosure: Randal Morrison defended the City of San Carlos in this case.] See also: Herson v. Richmond, U.S. Dist. Ct. N.D. CA No. 09-2516, April 25, 2011, 2011 WL 1557912 (summary judgment granted to city as to claims against new sign ord, but denied as to claims based on old sign ord.)
Conversion of Onsite Signs to Offsite Use. Owner of multi-floor hotel, with freeway visibility, began renting space on its own signs to other advertisers. County sued to prevent use of the signs for outdoor advertising (billboard) purposes. Trial court dismissed. Decision: The County is enforcing its own law, which is authorized by state law and is constitutional. The property can continue in use as a hotel, but its signs cannot be used for outdoor advertising. The case is returned to the trial court, with instructions to issue a preliminary injunction in favor of the county. Miami-Dade County v. Malibu Lodging Investments, Florida Court of Appeal, Third Dist., No. 3D09-3218, June 1, 2011, 2011 WL 2135594
Billboards on City Property. The city limits billboards to 250 sf, unless they are on city property, in which case the planning commission can waive the normal rule. Sign company, denied permission to put an oversize sign on private land, sued. Decision: Since the waiver rule does not turn on message, it is content neutral and is tested as a "time, place and manner" rule. The city's law gives no guidelines for deciding whether to waive the size requirements for a particular site plan. The exemption could possibly lead to substantial, rather than incremental, blight. Thus, the law is not narrowly tailored to serve public health, safety and traffic, and for that reason summary judgment cannot be granted to the city. Lamar Outdoor Adv. v. City of Utica Michigan, U.S. Dist. Ct., Eastern Dist. Mich., Southern Div., No. 09-14218, May 2, 2011, 2011 WL 1641770.
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Digital Conversion. Billboard owner informed city of his plan to convert existing sign to digital. Sign administrator and sign owner disagreed as whether current sign code forbade digitals. City sent letter giving notice that conversion would be illegal. When owner began conversation, administrator issued stop work order. Owner filed suit claiming inverse condemnation - a taking of private property without just compensation; five days later city adopted an ordinance amendment explicitly prohibiting off-premise electronic signs. Decision: Inverse claims can be pursued only after a final decision by the agency. The stop work order is a final decision as to the need for a permit, but is not final as to whether an LED display can be installed at all. Thus, the sign owner cannot maintain a takings claim at this time. The trial court properly dismissed the case. Garrett Operators v. Houston TX, Texas Ct. of Appeals-Houston 1st Dist. No. 01-09-00946-CV, May 12, 2011, 2011 WL 1833558 (not yet released for publication in permanent reports; still subject to revision.) [Disclosure: Randal Morrison is a consultant to the City of Houston on sign regulation matters.]
Electronic Billboard in Residential Area. State Highway Dept. informed Lamar that a permit was required to erect an electronic (digital) billboard. Lamar proceeded to erect the sign and then applied for after-the-fact permit, which was denied. Decision: The city's comprehensive zoning was never certified by state highway, and so the permit exemption for comprehensive zoning does not apply. The sign was built in an area zoned planned residential district, which does not allow billboards. Billboard are confined to commercial and industrial areas. The permit was properly denied. Arkansas State Highway v. Lamar Advantage, Supreme Ct. of Arkansas, No. 10-932, May 5, 2011, 2011 Ark. 195, 2011 WL 1782339 (Ark.)
Billboard Standing / Redressability. Sign company's application for 1,000 sf billboard permit was denied the same day it was presented, stating "proposed sign not permitted"; sign company then sued, claiming the sign ordinance was unconstitutional, but did not challenge size and height restrictions. City then amended sign code, but kept the same rules about size, height, and setback. Signco did not challenge the new sign code. Decision: Signco satisfies the first two elements of standing (permit denial is an "injury") and causation (denial was caused by sign code), but fails the third, redressability. The unchallenged size and height rules mean that the permits could not be issued. Signco "cannot demonstrate redressability and it does not have standing to bring its First Amendment and Equal Protection claims." Case dismissed. Coastal Outdoor v. Union NJ, U.S. Dist. Ct. NJ, No. 07-04351, Dec. 29, 2009, affirmed Third Circuit No. 10-1283, Nov. 18, 2010, 402 Fed.Appx. 690, 2010 WL 4671110. Similar case: Coastal Outdoor v. East Hanover NJ, Third Circuit No. 09-3242, Nov. 16, 2010, 397 Fed.Appx. 794, 2010 WL 4017037.
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MURALS
Government Speech or Censorship? Maine Governor Paul LePage ordered the removal of murals depicting the state's labor history from the State Dept. of Labor Building. Various groups sought a court order to reveal the location of the removed mural, and to guarantee its preservation. Decision: When the government speaks, it is not subject to the Free Speech Clause of the First Amendment. Elected state leaders have the right to decide what to say and what not to say; during their term in office, they are authorized to decide what the state of Maine says or does not say about itself. The governor's removal of a mural from the walls of a state office may strike some as state censorship; instead, it is a constitutionally permissible exercise of gubernatorial authority. The resolution of this vigorous debate rests with the people of the state of Maine electing their leaders. The court will not issue the requested order. Newton v. LePage, U.S. Dist. Ct. Maine, No. 1-11-cv-00124, April 22, 2011; 2011 WL 1532280.
Eminent Domain Protest: Housing ministry placed a 363 sf image stating "End Eminent Domain Abuse" inside a red circle with a slash, on the wall of a multi-family dwelling unit, oriented to be visible from freeways and streets. Ministry called it a mural and said it was thus exempt from the permit requirement; the city considered it a sign and denied a permit based on violation of the 30 sf size limit. Decision: City's sign code excludes from the definition of sign works of art and civil symbols and crests; this means the code is content based. City has no written policy for determining if an image is a sign or a symbol or crest, and has not shown that the exceptions and exemptions are narrowly tailored to serve the interests of safety and esthetics. The case is sent back to the trial court to determine if the unconstitutional provisions can be severed from the rest of the sign code. Neighborhood Enterprises v. City of St. Louis, 8th Cir. No. 10-1937, July 13, 2011, 2011 WL 2694571.
Canine Care Center: Operator of canine care facility commissioned artist to paint a large (16 x 60=960 sf) mural of "happy cartoon dogs" on the side of their building; the mural had no text. Zoning limits business signs in that area to 60 sf. City cited owner for oversize sign. Decision: The 960 sf mural is a form of advertising and commercial speech that plainly violates the size rule, which was not adopted because of governmental disagreement with any particular image. The size limit is valid, even if a similar sized sign with unrelated imagery would not be classified as a business sign. Case dismissed. Wag More Dogs v. Artman, U.S. Dist. Ct., Eastern Dist. VA, No. 1:10cv1347, Feb. 10, 2011; 2011 WL 652473. This case is now on appeal to the Fourth Circuit. Newspaper coverage, with picture of the mural: http://www.localkicks.com/community/pets/mural-of-dogs-leads-to-legal-warfare.
Special Treatment of Murals. Portland Oregon sign code once made distinctions between "signs" and "painted wall signs" and "painted wall decorations" (murals). While these definitions were in effect, Clear Channel applied for permits for many new billboards. Permits were denied because they exceeded the 200 sf size limit. The sign code was then amended to remove the sign / mural distinctions, but the size limits remained the same. Decision: The distinctions were unconstitutional, but can be severed out, leaving the size limits in tact and enforceable. The trial court properly denied the sign company its requested injunction, damages, and attorney fees. Clear Channel has obtained all the relief to which it is entitled: a declaration that "the Portland sign code definitions in existence prior to November 18, 1998, based on the presence of text, numbers, registered trademarks, or registered logos, imposed regulation based on the content of speech and was therefore a violation" of the Oregon Constitution. Clear Channel v. City of Portland, Oregon Ct. of Appeals, No. 980100125, A135896, 243 Or.App. 133, 2011 WL 2140357, May 25, 2011.
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BRIEFLY NOTED
*Vermont's specialty license plate law, prohibiting religious messages, was unconstitutional. Byrne v. Rutledge, 2d Circuit, No. 07-4375-cv, 623 F.3d 46, Oct. 8, 2010.
*Tattooing is purely expressive activity, and is entitled to full First Amendment protection. A city's total ban on tattooing and tattoo parlors was unconstitutional. Anderson v. Hermosa Beach CA, 9th Cir. 08-56914, 621 F.3d 1051, Sept. 9, 2010.
*As part of her religious beliefs (Church of Body Modification, http://uscobm.com/), high school student had a free exercise right to wear nose stud to public school even though it violated the school's student dress code. Iacono v. Croom, U.S. Dist. Ct., E.D. N.C. No. 5:10-CV-416, Oct. 8, 2010, 2010 WL 3984601.
*National Park rules requiring advance permits for any expressive activity within national parks were unconstitutional. Even though the rules were content neutral, they were not narrowly tailored and penalized a substantial amount of speech that did not impinge on the government's interests. Boardley v. U.S. Dept. of Interior, DC Cir. No. 09-5176, 615 F.3d 508, Aug. 6, 2010.
*Exemption for "civic events posters and announcements" was available only to government; sign company could not use the exemption to erect new billboard. Mountain States Media v. Adams County CO, 10th Cir. No. 09-1360, 389 Fed.Appx. 829, July 30, 2010.
* Display of Ten Commandments monument on the front steps of the Dixie County (FL) Courthouse violates the Establishment Clause of the First Amendment, U.S. Constitution. ACLU Florida v. Dixie County FL, U.S. Dist. Ct. FL, Gainesville, No. 1:07-cv-00018, July 15, 2011, 2011 WL 2784238.
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PLEASE NOTE
Entire contents copyright 2011 by Randal R. Morrison, Sabine & Morrison, P.O. Box 531518, San Diego CA 92153-1518. All rights reserved. Email: rrmsignlaw@gmail.com; Phone 619.234.2864
Disclaimer: No attorney client relationship is created by reading this newsletter. The case summaries in this newsletter are for informational purposes only, and should not be relied upon as advice or guidance in any particular sign related dispute.