AELE LAW LIBRARY OF CASE SUMMARIES:
Civil Liability of
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First Amendment
Monthly Law Journal Article: Second
Circuit Panel Allows Stun Mode to Gain Compliance of Chained Protestors,
2011 (5) AELE Mo. L. J. 501.
Monthly Law Journal Article:
Funeral Protests and the
First Amendment, 2011 (6) AELE Mo. L. J. 101.
Monthly Law Journal Article: Contempt of Cop: Verbal
Challenges, Disrespect, Arrests, and the First Amendment, 2011 (10) AELE
Mo. L. J. 101.
Monthly Law Journal Article: Crowd Management and Protecting
Civil Rights, 2012 (8) AELE Mo. L. J. 501.
Monthly
Law Journal Article: Probable Cause For
Arrest Will Ordinarily Defeat First Amendment Retaliation Claim, 2019 (7)
AELE Mo. L.J. 101.
A reporter for a local news organization heard on a police scanner of multiple
traffic stops in a specific area. As he did not have a driver’s license, he
rode a motorized bicycle to the area to take photographs. He suspected that
police were running a prostitution sting operation. An officer noticed him and
radioed the team. Two officers knew of the reporter’s previous anti‐police
speech. They directed him to “move on.” He asked if he was breaking any laws.
An officer told him that he was not, but that his continued presence would
constitute obstruction of a police detail and result in arrest. He started his
bicycle and called out, loudly, “goodbye officers.” Concerned that the reporter
might post pictures on social media while the sting operation was ongoing and
create a danger for unarmed undercover officers, the officers followed him and
arrested him for driving the wrong way on a one‐way street, operating a
vehicle without insurance, obstructing a police officer, felony aggravated
driving on a revoked license, and operating a motor vehicle without a valid
drivers’ license. News stories listed his name as an arrestee in the
prostitution sting. The charges against him were dismissed. He sued the
officers and the city under 42 U.S.C. 1983. The federal appeals court upheld
summary judgment for the defendants on First Amendment retaliation and
malicious prosecution under Illinois law, citing the U.S. Supreme Court’s
intervening Nieves v. Bartlett, #17-1174, 139 S.Ct. 1715 (2019) decision holding,
that, in most cases, probable cause to arrest defeats a claim of retaliatory
arrest. There was probable cause to arrest the reporter, nullifying any
retaliatory arrest claim under the First Amendment. Lund v. City of
Rockford, #19-1945, 2020 U.S. App. Lexis 12526 (7th Cir.).
A lower court should have granted a plaintiff objecting to a city
ordinance that required individuals to obtain permits before using sound
amplifying devices within the city a preliminary injunction. The plaintiff wanted to use a bullhorn to amplify his voice
during protests of alleged animal mistreatment at Six Flags Discovery Park. The
permit requirement constituted a prior restraint that chilled First Amendment free speech
rights and would continue to chill these rights in the absence of injunctive
relief, a federal appeals court found. The trial court abused its
discretion by failing to recognize a police officer’s threat of criminal
sanctions against plaintiff as irreparable harm.
The city did not show that it would suffer any hardship from the issuance of a
preliminary injunction. While the city had amended the ordinance after the
lawsuit was filed, the case was not moot because the amended ordinance only
eliminated a permit fee, which did not eliminate the asserted harm caused by the
permit requirement itself. Cuviello v. City of Vallejo, #17-16948, 944
F.3d 816 (9th
Cir. 2019).
As a police officer
was arresting some members of a gang, a woman with known gang connections whose
home was used by gang members drove by, parked, and yelled derogatory epithets.
Subsequently, she made posts on Facebook which used profanity, mentioned that
officer had kids, and which he took as credible threats against him and his
family. The officer filed a complaint, and a police sergeant arrested the woman
for intimidation. The charges were later dropped, and she sued the officer she
had made the posts about for unlawful seizure and malicious prosecution. She
also claimed that the city had an express policy or widespread practice that
motivated her arrest and prosecution. The officer and the sergeant both
testified that the officer had filed his complaint about the perceived threats
as a private citizen. A federal appeals court upheld summary judgment in favor
of the defendants. There was no evidence to indicate that the officer had acted
under color of law in being a witness in the plaintiff’s arrest and
prosecution, so he could not be shown to have violated her rights against
unlawful seizure and malicious prosecution. The plaintiff also failed to show
that the city failed to train its officers in handling profanity or that her
profanity was the cause of her arrest. Barnes v.
City of Centralia, #19-1377, 943 F.3d 826 (7th Cir. 2019).
A police officer was
assaulted and injured during a public demonstration against alleged police
misconduct called by a Black Lives Matter group. He sued the group and one of
its leaders/organizers. A federal appeals court ruled that the officer failed
to adequately show that the defendant leader was vicariously liable for the
conduct of the unknown assailant or that he entered into a civil conspiracy
with the purpose of injuring the officer. It ruled, however, the plaintiff
officer adequately alleged that the defendant leader was liable in negligence
for organizing and leading the demonstration to illegally occupy a highway. In
doing so, he arguably breached his duty of
reasonable care in the course of organizing and leading the demonstration in
that by ignoring the foreseeable risk of violence that his actions created, the
leader failed to exercise reasonable care.
The trial court erroneously
dismissed the lawsuit on First Amendment grounds, as the illegal conduct was
not protected by the First Amendment. The leader ordered
the demonstrators to violate a reasonable time, place, and manner restriction
by blocking the public highway. Doe v. McKesson, #17-30864, 945 F.3d 818
(5th Cir. 2019) rehearing denied. 2020 U.S. App. Lexis 2696 (5th Cir.).
A father and his children sued a county, a child welfare agency, and others for
alleged civil rights violations arising from a child welfare investigation.
Claims were asserted for violations of the plaintiffs’ First,
Fourth, and Fourteenth Amendment rights. A federal appeals court found that the
complaint failed to plausibly allege Fourth Amendment, Fourteenth Amendment,
and municipal liability claims. However, the father pleaded a plausible First
Amendment claim where he asserted that he engaged in protected activity, that
the alleged retaliation would objectively have had a chilling effect, and that
retaliation was the but-for motive for the social worker’s actions.
Additionally, the social worker was not entitled to qualified immunity because
a reasonable official would have known that taking the serious step of
threatening to terminate a parent’s custody of his children, when the official
would not have taken this step absent her retaliatory intent based on his
criticism of her actions, violated the First Amendment. The defendants were not
entitled to qualified immunity on the First Amendment claim. A Fourth Amendment claim failed,
however, because the father failed to show interviews of the children at their
school were seizures. Capp v. County of San
Diego, #18-55119, 940 F.3d 1046 (9th Cir. 2019).
An Arkansas
anti-loitering law that outlaws begging in public in a manner that harasses,
causes alarm, or impedes traffic was challenged in federal court. A federal
appeals court has upheld the issuance of a statewide preliminary injunction
barring the state from enforcing the statute while the plaintiffs assert their
contention that the law violates their First Amendment rights. The appeals
court found that the plaintiffs were likely to prevail on their First Amendment
claims as the state failed to show that the law was narrowly tailored to
achieve a compelling state interest. Strict scrutiny applied because the anti-loitering law was a
content-based restriction, and, even if the state’s interest in public and
motor vehicle safety through the prevention of aggressive conduct and traffic
hazards was “compelling,” the state did not show that the law was narrowly
tailored to achieve such interest where there was no justification for its
decision to single out charitable solicitation from other types of
solicitation. The argument
that the trial court abused its discretion by applying the preliminary
injunction statewide rather than limiting its application to the specific
plaintiffs was rejected. Rodgers v. Bryant, #17-3219, 942 F.3d 451 (8th Cir.
2019).
A city modified its municipal ordinances to deal with “aggressive” antiabortion
protests regularly taking place outside of a health clinic whose services included
abortions. Some of the protestors allegedly supported violent reprisal against
abortion providers. The modified ordinance restricted the use of public ways
and sidewalks near healthcare facilities during business hours to those
entering or leaving, the employees and agents of the clinic, law enforcement,
ambulance, firefighting, construction, utilities, public works and other
municipal agents within the scope of their employment, and persons using the
public way only to reach another destination. It created overlapping “buffer”
zones at qualifying facilities. A protesting “sidewalk counselor” who said she
behaved in a “non-aggressive” manner sued for alleged violations of her First
Amendment rights to freedom of speech, assembly, and association. A federal
appeals court overturned a ruling that the ordinance was overbroad and not
narrowly tailored to serve the government’s interest. The appeals court found
that genuine factual issues precluded summary judgment for either side. The
buffer zones’ exact impact on the plaintiff’s speech and her efforts to
communicate were unclear. She admitted that she continued to speak with
patients entering the clinic, and the city considered and attempted to provide
alternatives, such as increasing police presence outside the clinic, before
creating the “buffer” zone. A jury could find, however, that financial restraints and
manpower demands rendered such other alternatives ineffective. Turco v.
City of Englewood, #17-3716, 2019 U.S. App. Lexis 24623, 2019 WL
3884456 (3rd Cir.).
A man created a supposedly satirical Facebook page that looked like a city
police department’s actual official page. The page was displayed online for
approximately 12 hours and was followed by about 100 people. The page included
a recruitment advertisement that “strongly encourag[ed]” minorities to “not
apply.” and an advertisement for a “Pedophile Reform” event at which pedophiles
would receive honorary police commissions. Some of the page’s followers thought
it was all funny mockery, while others were angry or confused, believing it was
actually the department’s page, and some of them called the police station.
After the department posted a warning on its official Facebook page. The
“prankster” reposted that warning on his bogus page, to “deepen his satire.” He
deleted comments on his page that explained that the page was fake. The police
department asked Facebook to shut down the fake page and informed local news
reporters of the hoax. The man then deleted the page. Facebook disclosed
his identity to police in response to a search warrant and a subpoena. Officers
got warrants to search the man’s apartment and to arrest him for unlawfully
impairing the department’s functions. He argued in court that, other than 12
minutes of phone calls, the police department suffered no disruption. He was
acquitted, and then sued, claiming violations of his constitutional and
statutory rights, including First Amendment claims. A federal appeals court reversed the trial court’s decision to deny the motion to
dismiss on claims related to a right to anonymous speech, censorship in a
public forum, and the right to receive speech, finding the officers
entitled to qualified immunity on them, as the rights allegedly involved were
not clearly established in this context. The plaintiff could proceed, however,
on claims that the officers lied to Facebook to take down his page, lied to
secure warrants to arrest him, and lied on the witness stand about their
actions. At the early motion to dismiss stage, the appeals court ruled, that
was enough to plausibly allege that the officers acted with a “dishonest
purpose” constituting bad faith. The court further held that it lacked
jurisdiction over the city’s interlocutory appeal of the denial of its motion
to dismiss municipal liability claims. Novak v. City
of Parma, #18-3373, 2019 U.S. App. Lexis 22398,
2019 Fed. App. 0170P, 2019
WL 3403893 (6th
Cir.).
A
city council passed an ordinance making it unlawful for anyone “to sit or
stand, in or on any unpaved median, or any median of less than 36 inches for
any period of time.” A lawsuit challenging the ordinance on First Amendment
free speech grounds was filed by a man who received four citations for
violating it after he stood on narrow or unpaved medians and attempted to
panhandle. The trial court denied the plaintiff a preliminary injunction
against the ordinance, and granted the city summary judgment, finding that the
ordinance was a valid time, place, or manner restriction on speech. A federal
appeals court upheld this result, rejecting the plaintiff’s arguments that the
trial court incorrectly applied the time, place, or manner standard and that
the city did not satisfy its evidentiary burden of demonstrating the legitimacy
of the ordinance. The ordinance
did not violate the First Amendment because it did not discriminate based on content. It was
narrowly drawn to serve an important governmental interest of protecting people
standing on narrow medians from being struck by vehicles, and it allowed
persons standing on certain medians to express their views, including the
solicitation of financial support, on thousands of linear feet within the city.
Evans v. Sandy City, #17-1179, 928 F.3d 1171 (10th Cir. 2019).
The owners and employees of a “bikini barista” stand sued, challenging a city’s
dress code ordinance requiring that the dress of personnel at quick-service
facilities cover “minimum body areas,” as
well as amendments to city lewd conduct ordinances. Overturning a preliminary
injunction against the challenged laws, a federal appeals court found that the
plaintiffs failed to show a likelihood of success on the merits of their two
Fourteenth Amendment void-for-vagueness challenges, nor on their First
Amendment free expression claim. The appeals court ruled that the activity the
lewd conduct amendments prohibited were “reasonably ascertainable” to a person
of ordinary intelligence, and the amendments did not give law enforcement
unchecked discretion. The meaning
of the term “anal cleft” as a body area that could not be exposed in a public
place was clear. Further the dress code ordinance was not open to the
kind of arbitrary enforcement that raised due process concerns. Bikini baristas’ wearing of pasties and
g-strings was not expressive conduct because they failed to show a great
likelihood that their intended message of empowerment and confidence would be
understood by those receiving it given the commercial setting and close
proximity to the customers.The appeals court also held that the trial
court’s application of intermediate scrutiny under the “secondary effects” line
of cases was erroneous, since that doctrine only applies to regulations that
burden speech within the scope of the First Amendment’s sphere of protection.
In this case, the dress code ordinance did not burden First Amendment protected
expressive conduct, so the city only needed to demonstrate that it promotes a
substantial government interest that would be achieved less effectively without
the regulation. Edge v. City of Everett, #17-36038,
2019 U.S. App. Lexis 19930 (9th Circuit).
When a city settled a police misconduct lawsuit, it included a
non-disparagement clause in the settlement agreement. The plaintiff in that
case spoke about it publicly and argued that the city violated her First
Amendment rights by enforcing the clause against her, withholding half of her
settlement money. Overturning summary judgment for the city on the First
Amendment claim concerning the enforcement of the clause, a federal appeals court
ruled that the non-disparagement clause in the plaintiff’s settlement agreement
amounted to a waiver of her First Amendment rights and that strong public
interests rooted in the First Amendment made it unenforceable and void.In a
separate claim, a local news website, asserted that the city’s alleged practice
of including non-disparagement clauses in almost all settlement agreements with
police misconduct claimants violated the First Amendment by interfering with
its ability to report on such cases by receiving information from willing
persons. The appeals court ruled that the local news website had
sufficiently pleaded an “ongoing or imminent” injury in fact that is both
traceable to the city's challenged conduct and redressable by the court. Summary
judgment for the city on the website’s claim was therefore overturned. Overbey v. Mayor and City Council of Baltimore, #17-2444, 2019 U.S. App. Lexis 20598, 2019 WL 3022327 (4th Cir.).
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A federal appeals court has ruled that President Donald Trump violated the
First Amendment, engaging in unconstitutional viewpoint discrimination by
using Twitter’s “blocking” function to prevent certain users’ access to his
social media account, which is open to members of the public, based on his
disagreements with the content of their speech. The court held that the First
Amendment does not allow a public official who uses a social media account
for official purposes to exclude some members of the public from an otherwise
open online dialogue when they express views which he disagrees with. The
U.S. government acknowledged that the individual plaintiffs were blocked from
the President’s Twitter account after they criticized him or his policies in
online comments. The President’s account was not private and personal but
constituted a public forum as he opened it up for millions of people to post
comments and discuss issues. Accordingly, he could not selectively engage in
viewpoint discrimination. Summary judgment for the plaintiffs was upheld. The
reasoning of the case would appear to apply to law enforcement agencies that
utilize social media accounts on Twitter, Facebook, etc. to communicate with
the public and allow the posting of comments, barring a practice of, for
example, allowing positive, but not critical comments. Knight First Amendment Institute at Columbia University
v. Trump, #18-1691, 2019
U.S. App. Lexis 20265 (2nd Cir.).
Governmental Liability: Policy/Custom
A man was visiting acquaintances at a
house after finishing work nearby. He was waiting for a cab to take him home
when police officers kicked down the doors. He claimed that they then beat
him, threatened him, and took him to a hospital. One of the officers stated
in his report that he had observed the man engaged in a hand-to-hand drug transaction, that the man had
initiated the physical altercation with officers, and that he was in
possession of 49 bags of a controlled substance. The arrestee filed an
internal affairs complaint but received no response. He pled guilty to
possession with intent to distribute and served 18 months. He was released
when the officer admitted that he had falsified the police report. Three
officers pled guilty to conspiracy to deprive persons of their civil rights,
disrupting over 200 criminal cases. The arrestee’s
lawsuit was among 89 lawsuits against the city. He opted out of a global
settlement. The trial court unilaterally divided his municipal liability
claim into three theories: failure to supervise through internal affairs,
failure to supervise, and failure to train. The court associated certain
evidence with only the first theory, granted the city summary judgment on the
failure to supervise and train theories, excluded evidence that was material
to the remaining theory, and awarded summary judgment on a state law
negligent supervision claim. A federal appeals court found that the jury
instructions confused the relevant law and vacated. The “artificial line,”
drawn by the trial court, between what were ostensibly theories with largely
overlapping evidence resulted in erroneous rulings as to what was relevant,
and instructions as to what law the jury was to apply. Forrest v. Parry,
#16-4351, 2019 U.S. App. Lexis 20486, 2019 WL
2998601 (3rd Cir.).
After a police officer shot and killed a man, a lawsuit claiming excessive
force was filed against the officer, the police chief, and the city. A
federal appeals court upheld summary judgment on Fourteenth Amendment claims,
but reversed on the remaining claims. The court found that triable issues
remain regarding the reasonableness of the officer's use of deadly force,
specifically the officer’s credibility, whether the decedent had posed a
significant (or any) danger to anyone, whether the severity of the suspect’s
alleged crime justified the use of deadly force, whether the officer gave or
the suspect resisted any commands. Other issues for trial included the
significance of the officer’s alleged failure to identify himself as a police
officer or warn the suspect of the impending use of force, and the possible
availability of less intrusive means of subduing the suspect. The appeals
court ruled that these factual issues barred a grant of summary judgment
based on qualified immunity, because it was well established at the time that
the use of deadly force under the alleged circumstances, viewed in the light
most favorable to the plaintiff, was objectively unreasonable. The officer
had stated that he had not seen any weapons in the plaintiff’s possession
before he fired. The court further found that the plaintiffs presented
sufficient evidence of police department customs, practices, and supervisory
conduct to support a finding of entity and supervisory liability.
Additionally, the trial court never gave the plaintiffs a chance to be heard
before granting summary judgment on the state law negligence and wrongful
death claims, requiring further proceedings on those claims. Nehad v. Browder, #18-55035, 2019 U.S. App. Lexis 20590,
2019 WL 3023147 (9th Cir.).
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A state trooper was not entitled to summary judgment based on qualified
immunity to a state trooper, in a lawsuit alleging claims of First Amendment
retaliation and Fourth Amendment unreasonable seizure. The trooper arrested a
motorist for disorderly conduct after the plaintiff yelled a two-word expletive
(“fuck you”) at him from a moving vehicle driving by while the trooper was
performing a routine traffic stop of another vehicle. The trooper argued that
the shout constituted “unreasonable or excessive noise” in violation of state
law. The federal appeals court ruled that the trooper lacked “even arguable”
probable cause for an arrest and thus violated the plaintiff’s Fourth Amendment
right to be free from unreasonable seizure. While the conduct involved may have
been offensive, it was not an unreasonable or excessive noise. The appeals
court also held that the trial court did not err as to the First Amendment
retaliation claim since the trooper had neither probable cause nor arguable
probable cause to arrest the plaintiff, because the profane shout was protected
activity and the arrest was an action that would “chill” continued free speech
activity by a person of ordinary firmness. Thurairajah v.
Hollenbeck, #17-3419, 2019 U.S.
App. Lexis 16573 (8th Cir.).
An important new U.S. Supreme Court
ruling greatly limits the circumstances under which a suspect arrested with
probable cause can assert a claim for damages for alleged violation of their
First Amendment free speech rights by that arrest. An 8-1
majority of the Court ruled that an arrestee’s claim that two police officers
retaliated against him for his protected First Amendment speech by arresting
him for disorderly conduct and resisting arrest could not survive summary
judgment. The incident occurred during a winter sports festival, “Arctic Man,”
a raucous winter sports festival held in a remote part of Alaska. One of the officers
was speaking with a group of attendees at the festival when the seemingly
intoxicated plaintiff started shouting at them not to talk to the police. When
the officer approached him, the plaintiff began yelling at the officer to
leave. Rather than escalate the situation, the officer left. Minutes later, the
plaintiff approached a second officer in an aggressive manner while he was
questioning a minor, stood between him and the teenager, and yelled with
slurred speech that the officer should not speak with the minor. When the
plaintiff stepped toward the officer, the officer pushed him back. The first
officer saw the confrontation and initiated an arrest. After he was handcuffed,
the arrestee claims that the first officer said "bet you wish you would have
talked to me now." The only evidence of retaliatory animus identified by
the U.S. Court of Appeals for the Ninth Circuit was the plaintiff’s affidavit
alleging that statement by the first officer. But that allegation said nothing
about what motivated the second officer, who had no knowledge of the
plaintiff’s prior run-in with the first officer.In any event, the Court found
that the retaliatory arrest claim against both officers could not succeed
because they had probable cause to arrest him. The existence of probable cause
to arrest defeated his First Amendment claim as a matter of law. Under the
Court’s analysis, the existence of probable cause for an arrest will ordinarily
bar a claim that the arrest was made in retaliation for protected First Amendment
speech. The Court’s opinion did provide for a small exception to this general
rule where officers have probable cause to make arrests, but typically exercise
their discretion not to do so, particularly with arrests made for very minor
offenses. An unyielding requirement to show the absence of probable cause in
such cases could pose “a risk that some police officers may exploit the arrest
power as a means of suppressing speech.” The presence of probable cause will
not bar a claim that the arrest was made in retaliation for protected First
Amendment speech when objective evidence is presented that the plaintiff was
arrested when otherwise similarly situated individuals not engaged in the same
sort of protected speech had not been. Nieves
v. Bartlett, #17-1174, 2019 U.S. Lexis 3557 (May 28, 2019),
A District of Columbia
anti-obstructing statute under which the three plaintiff D.C. residents were
arrested is not unconstitutionally vague on its face. The federal appeals court
found that the statute conferred no sweeping power and its terms were clear
enough to shield against arbitrary deployment. The law only bars blocking or
hindering others’ use of the places it identifies. A person is not subject to
arrest unless he refuses to move out of the way when an officer directs him to
do so, and the statute does not criminalize inadvertent conduct, nor does it
authorize the police to direct a person to move on if he is not currently or
imminently in the way of anyone else’s shared use of the place at issue. Agnew
v. Government of the District of Columbia, #17-7114, 920 F.3d 49 (D.C. Cir.
2019).
An activist organization challenged a city’s indecent exposure ordinance as
violative of the Equal Protection Clause of the Fourteenth Amendment since it
prohibited only the exposure of the female breast, while allowing the exposure
of the male breast. A federal appeals court upheld summary judgment for the
defendant city. The court found that its prior precedent of Ways
v. City of Lincoln, #02-3355, 331 F.3d 596 (8th Cir. 2003)
controlled the case and was still valid. In Ways, the court
upheld an ordinance prohibiting the showing of the female breast with less than
a fully opaque covering on any part of the areola and nipple against a similar
equal protection challenge. In this case, as in Ways, the court
found, the city's ordinance was “substantially related” to its important
governmental interests in promoting public decency and proscribing public
nudity to protect morals, public order, health, and safety. Free the Nipple v. City of Springfield, Missouri, #17-3467,
2019 U.S. App. Lexis 13481 (8th Cir.).
A police officer pulled over a
female motorist for speeding. He wrote her a ticket for a lesser, non-moving
violation. As she drove away, she made a “vulgar gesture” at him (giving him
the finger). The officer stopped her again and changed the ticket to a
speeding offense. A federal appeals court upheld the denial of the
officer’s motion for dismissal of the motorist’s federal civil rights lawsuit
asserting claims for unconstitutional seizure, restriction of her liberty, and
retaliation. The plaintiff did not break any law that would justify the second
stop and at most was exercising her free speech rights. Qualified immunity
protects police from personal liability unless they violate a person’s clearly
established constitutional or statutory rights. In this case, however, the
rights asserted by the motorist meet that standard. The officer’s authority to
seize her in connection with the driving infraction ended when the first stop
concluded. Her “crude gesture” could not provide that new justification. Any
reasonable officer would know that a citizen who raises her middle finger
engages in speech protected by the First Amendment. An officer who seizes a
person for Fourth Amendment purposes without proper justification and issues
her a more severe ticket clearly commits an “adverse action” that would deter
her from repeating that conduct in the future. Cruise-Gulyas v. Minard,
#18-2196, 2019 U.S. App. Lexis 7369, 2019 Fed. App. 0043P, 2019 WL 1143852 (6th
Cir).
Anti-abortion “sidewalk
counselors” sued, seeking an injunction against Chicago’s “bubble zone”
ordinance, which barred them from approaching within eight feet
of a person within 50 feet of an abortion clinic if their purpose was to engage
in counseling, education, leafleting, handbilling, or protest, defining such
actions as disorderly conduct. They claimed that the floating bubble zone was a
facially unconstitutional content-based restriction on the freedom of speech.
The trial judge dismissed the claim, relying on the Supreme Court’s 2000
decision (Hill), which upheld a nearly identical Colorado law against a similar
First Amendment challenge. A federal appeals court affirmed. Abortion clinic
buffer-zone laws “impose serious burdens” on core speech rights but under Hill v. Colorado, #98-1856, 530 U.S. 703 (2000), a floating bubble
zone is not considered a content-based restriction on speech and is not subject
to strict judicial scrutiny. The ordinance is classified as a content-neutral
“time, place, or manner” restriction and is tested under the intermediate
standard of scrutiny. Hill held that the governmental interests at
stake—preserving clinic access and protecting patients from unwanted speech—are
significant, and an 8-foot no-approach zone around clinic entrances is a
narrowly tailored means to address those interests. The court noted that Hill’s
content-neutrality holding is difficult to reconcile with subsequent Supreme
Court decisions, but those decisions did not overrule Hill, so it remains
binding. Price v. Chicago, #17-2196, 2019 U.S.
App. Lexis 4338, 2019 WL 580263 (7th Cir.).
The Pennsylvania Supreme Court held that threatening police officers in the lyrics of a
rap song was not protected speech, so that prosecuting the rapper for witness
intimidation and terroristic threats in a music video entitled “Fuck the
Police” did not violate the First Amendment. In that video, Jamal Knox, using
the name Mayhem Mal, threatens to kill the two police officers and an informant
that led to his conviction on a 2012 drug charge. The judges reasoned that the
lyrics themselves were “both threatening and highly personalized to the
victims.” Even the dissenting opinion found that Knox intended to communicate a
true threat. In the lyrics, he names the police officers, and states how and
where he was going to kill them, in rather specific terms. Commonwealth
v. Knox, #J-83-2017, 190 A.3d 1146, 2018 Pa. Lexis
4272.
A federal statute, 8
U.S.C. 1324(a)(1)(A)(iv), aimed at criminalizing advocacy of violation of
immigration laws, is unconstitutionally overbroad in violation of the First
Amendment because it criminalizes a substantial amount of protected expression
in relation to the statute’s narrow legitimate sweep. Subsection (iv) permits a
felony prosecution of any person who “encourages or induces” an alien to come
to, enter, or reside in the United States if the encourager knew, or recklessly
disregarded the fact that such coming to, entry, or residence is or will be in
violation of law. A federal appeals court reversed the defendant’s conviction
with respect to the “encourage or induce” counts. U.S.
v. Sineneng-Smith, #15-10614, 2018 U.S. App. Lexis 34099 (9th Cir.).
The two plaintiffs were both stopped and searched by federal border patrol
officers as they took photographs of activities at U.S. ports of entry on the
United States–Mexico border. Their photos were seized and destroyed. They sued,
claiming that this violated their First Amendment rights. Overturning the
dismissal of the lawsuit, a federal appeals court concluded that the First
Amendment protected the right to photograph and record matters of public
interest, and whether a place was “public” depended on the nature of the
location. The trial court's ruling that the border patrol’s policies were the
least restrictive means of serving a compelling government interest was
“conclusory and insufficient,” and it was the government’s burden to prove that
the specific restrictions were the least restrictive means available. The
appeals court ruled that the plaintiffs had adequately pleaded their
claims and that further factual development was required before the trial court
could determine what restrictions, if any, the government may impose in these
public, outdoor areas where the photos were taken. Askins v. U.S. Department of
Homeland Security, #16-55719, 899 F.3d 1035 (9th Cir. 2018).
A federal appeals court held that
the outdoor food sharing of vegetarian and vegan food hosted by a non-profit
organization, including to homeless persons, was expressive conduct protected
by the First Amendment, and therefore, the trial court erred in granting
summary judgment in favor of the City of Fort Lauderdale on a lawsuit
challenging an ordinance enacted by the city that restricted this food sharing.
In 2014, the city enacted an ordinance that restricted the plaintiff’s weekly
food sharing at a city public park. In its complaint, the plaintiff argued that
the ordinance, enacted in 2014, and a related park rule violated their First
Amendment free speech and free association rights and were unconstitutionally
vague. The trial court disagreed, concluding that the outdoor food sharing was
not constitutionally-protected expressive conduct and that the ordinance and
park rule were not vague. The court reversed after examining the nature of the
food sharing activity, combined with the factual context and environment in
which the activity was undertaken, holding that the plaintiff engaged in a form
of protected expression, expressing its message against war and for the relief of
hunger. Fort Lauderdale Food Not Bombs v. City of Fort Lauderdale, #16-16808,
2018 U.S. App. Lexis 23562 (11th Cir.).
New York City police officers were entitled to qualified immunity
on claims that they violated protestors’ constitutional rights under the First
and Fourteenth Amendments by fully detaining them for two hours during a
protest outside a hotel where then-President Obama was attending a fundraising
dinner. The trial court erred in concluding that the Officers’
subjective intent in temporarily detaining the protesters was relevant to
whether they were entitled to qualified immunity. Reasonable officers could
have believed that the approximately two‐hour detention of the protesters
in response to concerns for the President’s security was justified in light of
then established law. Further, because they could have reasonably believed that
the temporary detention was lawful, they were also entitled to qualified
immunity on the protesters' First Amendment and Fourteenth Amendment claims. Berg v. N.Y.C. Police Commissioner, #16-3146, 897 F.3d 99
(2nd Cir. 2018).
A federal appeals court has upheld
a ruling that a Louisiana state statute, Louisiana Revised Statutes 14:122,
that criminalizes "the use of violence, force, or threats" on any public
officer or employee with the intent to influence the officer's conduct in
relation to his position is unconstitutionally overbroad in violation of the
First Amendment. The court ruled that section 14:122 was unconstitutionally
overbroad because the meaning of "threat" was broad enough to sweep
in threats to take lawful, peaceful actions, such as threats to sue a police
officer or challenge an incumbent officeholder. The plaintiff arrestee claimed
that, in objecting to his arrest, he threatened “to make lawful complaints” about the officers' conduct. According to
the officers, he violently resisted and “repeatedly made threats of physical
harm.” Resolving the factual dispute, however, was not relevant,
given the court’s ruling that the statute was overbroad and therefore invalid. Seals v. McBee, #17-30667, 2018 U.S. App. Lexis 21619 (5th
Cir.).
Police officers were not entitled to qualified immunity in a federal civil
rights lawsuit brought by attendees of a political rally in 2016 for then
Presidential candidate Donald Trump, who were attacked by anti-Trump protesters
as they attempted to leave the rally. A federal appeals court held that the
officers’ alleged conduct violated clearly established rights. The plaintiffs
sufficiently alleged that the officers increased the danger to them by
shepherding them into a crowd of violent protesters and that the officers acted
with deliberate indifference to that danger. Hernandez v. City of San Jose,
#17-15576, 2018 U.S. App. Lexis 20908 (9th Cir.).
After a man towed his floating home into a city owned marina, he became a
critic of the city’s plan to
seize waterfront
homes for private development. He sued to try to block the plan. He alleged
that city officials devised an official plan to intimidate him. A police
officer handcuffed him carried him out from a city council meeting that he was
trying to address. The arrest was allegedly for violating the council’s rules
of procedure by discussing issues unrelated to the city and refusing to leave
the podium. The prosecutor determined that there was probable cause for
his arrest, but dismissed the charges. In a lawsuit under 42 U.S.C. 1983, the
trial court instructed the jury that, for the plaintiff to prevail on his
retaliatory arrest claim, he had to prove that the officer was motivated by
impermissible animus against his protected speech and lacked probable cause to
make the arrest. A federal appeals court
upheld a judgment for the city. The U.S. Supreme Court vacated. The existence
of probable cause did not bar the plaintiff’s First Amendment retaliation claim
because his case, is “far afield from the typical retaliatory arrest claim.” He
still must prove the existence and enforcement of an official policy motivated
by retaliation which is unlike an on-the-spot decision by an individual
officer. The Court noted that the plaintiff alleges that the city deprived him
of the right to petition, “one of the most precious of the liberties
safeguarded by the Bill of Rights.” Lozman v. Riviera Beach, #17-2,1, 2018 U.S. Lexis 3691.
A woman sued police officers, as well as a current and past mayor after the
officers visited her apartment to investigate a noise complaint, gained
warrantless entry, and proceeded to engage in abuse. They then cited her for
disorderly conduct and interfering with law enforcement. She claims that at one point she knelt and began to
pray but an officer ordered her to stop and another officer refused to
investigate her complaint that she had been assaulted by residents of her
apartment complex and threatened to issue a citation if she reported this to
another police department; that the police chief failed to investigate the
officers’ conduct; and that the mayors were aware of unlawful conduct by police
officers. She asserted a violation of her First Amendment right to the free
exercise of religion and her Fourth Amendment right to be free of any
unreasonable search or seizure. The U.S. Supreme Court noted that the First
Amendment protects the right to pray but there are circumstances in which an
officer may lawfully prevent a person from praying. Here, the officer’s order
to stop praying allegedly occurred during the course of investigative conduct.
That implicates Fourth Amendment rights; the First and Fourth Amendment issues
were “inextricable.” It was unclear whether the officers were in the woman’s
apartment based on her consent or had some other ground consistent with the
Fourth Amendment, or whether their entry or continued presence was unlawful.
Her complaint did not state what the officers wanted her to do when she was
allegedly told to stop praying. Without these answers, it was impossible to
analyze the free exercise claim. The issue of qualified immunity demanded
consideration of the ground on which the officers were present and any legitimate
law enforcement interests that might have justified an order to stop praying. Sause v. Bauer, #17-742, 2018 U.S. Lexis 4037.
A protestor was
escorted by police out of an event at a D.C. university where then Secretary of
State Hillary Clinton was delivering a speech. He stood during the speech,
facing the audience and blocking the view of audience members, wearing a shirt
with the words “Veterans for Peace.” He did not respond or react to the
officers’ repeated requests to come with them. A federal appeals court held
that the officers had probable cause to arrest him because they had issued a
sufficient demand for him to leave and he refused their demand. Further, the
use of force was not so excessive that no reasonable officer could have believed
in the lawfulness of his action. The officers’ actions did not violate the
First Amendment right to freedom of speech. McGovern v. Brown, #17-7073, 2018 U.S. App. Lexis
14782 (D.C. Cir.).
University
police officers were entitled to qualified immunity for the use of force,
including batons, against protesters involved in the Occupy Wall Street
movement in 2011. The force used against four plaintiffs was not excessive and
the officers were entitled to use the minimal force they employed to move a crowd
in order to gain access to the tents erected in violation of university policy.
The trial court also erred in denying summary judgment on supervisory liability
claims to some defendants, who were not in the police chain of command, and had
no supervisory authority over the officers who allegedly committed the
violations. Felarca v. Birgeneau,
#16-15293, 2018 U.S. App. Lexis 14335 (9th Cir.).
A federal appeals court vacated the trial court’s grant of summary judgment for
the defendants in an action challenging the
plaintiffs’ exclusion from an enforcement zone set up around a Border Patrol
checkpoint area near their homes in rural Arizona, where they wished to both
monitor and protest Border Patrol activity. The trial court erroneously entered
summary judgment before any discovery had occurred. The appeals court held that
the limited record before the trial court did not permit it to conclude, as a
matter of law, that the enforcement zone was a nonpublic forum or, if it was,
that the government satisfied the requirements for excluding the plaintiffs
from that nonpublic forum. On remand, and after appropriate discovery, the
trial court will need to determine if there remain genuine issues of material
fact regarding whether, and what part of, the enforcement zone was a public
forum, and whether the government's exclusion policy was permissible under
First Amendment principles of forum analysis. Jacobson v. USDHS, #16-17199, 882 F.3d 878 (9th Cir. 2018).
A federal appeals court rejected a First
and Fourteenth Amendment challenge to Section 647(b) of the
California Penal Code, which criminalizes the commercial exchange of sexual
activity. Laws invalidating prostitution may be justified by rational basis
review. The law is rationally related to several important governmental
interests, including discouraging human
trafficking and violence against women, discouraging illegal drug use, and
preventing contagious and infectious diseases, any of which
support a finding of no constitutional violation under the Due Process Clause
of the Fourteenth Amendment. The court found that it does not violate the
freedom of intimate or expressive association, rejecting an attempt to
analogize prostitution to the private intimate sexual activity of sodomy found
protected in Lawrence v. Texas, #02-102, 539 U.S. 558 (2003). The court also
held that it does not violate the right to earn a living and does not violate
the First Amendment freedom of speech because prostitution does not constitute
protected commercial speech and therefore did not warrant protection. Erotic Service Provider
Legal Education and Research Project v. Gascon, #16-15927, 2018 U.S. App. Lexis
1120 (9th Cir.).
Two persons participated
with many others in two unpermitted demonstrations at the Denver International
Airport against President Trump’s Executive Order which temporarily suspended
entry into the United States of nationals from seven predominantly Muslim
countries. The first protest was allowed to continue without a permit but
protestors were eventually moved from the Great Hall to an outdoor plaza. The
second protest took place near the international arrival area at the north end
of the Great Hall and continued for several hours. Although protestors on both
days were warned they could be arrested for continuing to demonstrate without a
permit, no arrests were made. The two
plaintiffs sought a preliminary injunction, arguing that policies and
regulations governing protests and demonstrations at the airport violated their
First and Fourteenth Amendment rights. The trial court granted the injunction
in part, concluding that the plaintiffs made the necessary showing with respect
to their claim that the challenged regulations were unreasonable because they
did not contain a formal process for expediting permit applications in exigent
circumstances. It also enjoined airport officials from enforcing certain
regulations governing the location of permitted protests and picketing restrictions,
including the size of signage. A federal appeals court reversed, largely
because the court below applied the wrong legal standard in resolving whether
the elements for granting a preliminary injunction were met: “[t]he district
court’s flawed analysis and clearly erroneous factual finding led it to
conclude that Plaintiffs demonstrated a strong likelihood of succeeding in
their challenge to the lack of an exigency provision in [the Denver Municipal
Code]. The court abused its discretion in so concluding.” It erred by relying
on its own belief that the defendants could shorten the permit period to 24
hours in exigent circumstances. McDonnell v. City and
County of Denver, #17-1071, 2018 U.S. App. Lexis 206 (10th Cir.).
|
Insane Clown Posse, a Michigan music group, performs songs with “harsh
language and themes.” Its fans, who call themselves “Juggalos,” wear
distinctive tattoos, clothing, and insignia, including clown face paint and
the “hatchetman” logo. The Attorney General’s National Gang Intelligence
Center's (34 U.S.C. 41507) 2011 gang-activity report, described Juggalos as
“a loosely-organized hybrid gang.” Four states currently recognize Juggalos
as a gang. Juggalos who claim that they do not knowingly affiliate with any
criminal gang, but have suffered violations of their Fifth Amendment
due-process rights and a chill in the exercise of their First Amendment
expression and association rights due to the designation, sued the Justice
Department and FBI under the Administrative Procedures Act, 5 U.S.C. 701(b).
Some claimed that they had been detained. An Army Corporal with Juggalo
tattoos alleged that he is “in imminent danger of suffering discipline or an
involuntary discharge.” Local law enforcement caused a musical event to be
canceled. A federal appeals court upheld the dismissal of the lawsuit. The
designation was not reviewable because it was not a final agency action and
was committed to agency discretion by law. The group’s gang designation did
not limit or compel action by other government actors and no government
officials were required to consider or abide by the gang designation.
Further, the gang designation did not result in legal consequences since the
harms that the group suffered were caused by third parties who
discretionarily relied on the gang designation, and the harms suffered by the
group constituted a decision to act that rested on the shoulders of others
and not the agency action. Parsons v. United States Department of Justice,
#16-2440, 2017 U.S. App. Lexis 25446 (6th Cir. 2017).
|
A non-profit organization advocating legalized marijuana sought to hold a rally
on the steps of the county courthouse. Previously, in response to controversy
over a nativity scene on the courthouse grounds, the County Board of
Commissioners declared the grounds a “closed forum,” so that only displays and
events sponsored and prepared by a department or office of the county government “will be allowed in the windows … or on
the grounds.” The county had previously sponsored art fairs, a rally for the
League of Women Voters, an event for the Fraternal Order of Police, and events
related to child abuse awareness, “gun sense,” Planned Parenthood, Syrian
refugees, and prevention of bullying, but declined to sponsor or allow the
marijuana protest. The organization obtained a preliminary injunction in the
trial court. A federal appeals court affirmed, ruling that the policy restricts
private speech and is not viewpoint-neutral, so it likely violates the First
Amendment. Higher Society of Indiana v. Tippecanoe
County, #17-1089, 858 F.3d 1113 (7th Cir.
2017).
A
man was arrested for failing to confine his leafleting to an area designated
for protest activities as set forth in a protocol formulated by the city’s
legal department. He sued, challenging the constitutionality of the protocol,
which had earlier been upheld in Ross v. Early, #12-2547, 746
F.3d 546 (4th Cir. 2014). The trial court dismissed the complaint because the
court had already considered the constitutional claim in Ross.
The appeals court vacated, holding that, in Ross, the parties
entered into a stipulation that dictated the level of constitutional scrutiny,
but the parties to the immediate case did not. Furthermore, the trial court in
the immediate case did not consider an intervening relevant First Amendment
U.S. Supreme Court decision, McCullen v. Coakley, #12-1168, 134 S. Ct. 2518
(2014), and did not have the benefit of another, Reed v. Town of Gilbert,
#13-502, 135 S. Ct. 2218 (2015). Accordingly, the appeals court ordered further
proceedings. Lucero v. Early, #16-1767, 873 F.3d 466 (4th
Cir. 2017).
A federal appeals
court held that a trial court erred in submitting to a jury the question of
whether officers violated clearly established law in allegedly using excessive
force during a May Day protest. The question of whether a particular
constitutional right is "clearly established," as part of the
qualified immunity analysis, is to be decided by the judge. Additionally, as to
claims against one officer who used pepper spray against a demonstrator, the
trial court properly denied his motion for judgment as a matter of law on the
basis of qualified immunity, as there was evidence from which a jury could have
reasonably decided that this use of force was retaliatory. Morales v. Fry,
#14-35944, 873 F.3d 817 (9th Cir. 2017).
It was not objectively
reasonable for police officers to believe that they had probable cause to
arrest a man for obstruction when he stood in his own lighted doorway 30 to 40
feet away directing verbal criticism at the officers and telling them that his
wife, who they were confronting in the driveway could not follow their
instructions as she was disabled. His statements did not amount to “fighting
words,” and were protected First Amendment activity. The officers were not
entitled to qualified immunity on First and Fourth Amendment claims. A jury
would have to decide whether there was a causal connection between the
plaintiff’s protected speech and the actions the officers took against him.
Hoyland v. McMenomy, #16-2222, 869 F.3d 644 (8th Cir. 2017).
While Wisconsin’s governor was engaged in making changes to the state’s public
union laws, one of his top state government policy staffers advocated the
changes and drafted the proposed law. At the same time, a county State’s
Attorney’s office was investigating the staffer and several other close
associates of the governor concerning missing charitable funds and had a judge
issue a search warrant. The staffer claimed that she was targeted because of
her work on the union bill and her affiliation with the governor, in violation
of her First Amendment rights. She sued prosecutors and members of the
investigative team. A federal appeals court upheld dismissal of the lawsuit on
grounds of qualified immunity. The warrant was valid and the plaintiff stated
no claim about the execution of the search. Officers may detain the occupants
of a location to be searched when they execute a valid warrant if they have a
valid reason for doing so. There is no clearly established rule of law, the
court stated, under which an official pursuing a lawful investigation, based on
probable cause, has been found liable under the First Amendment. The court
found no factual support for the claims that the warrant’s supporting affidavit
was procured through deceit or that the warrant was not supported by probable
cause. Archer v. Chisholm, #16-2417, 870 F.3d 603 (7th
Cir. 2016).
A federal appeals court ruled that Nebraska's Funeral Picketing Law (NFPL),
which prohibits picketing within 500 feet of a cemetery, mortuary, or church
from one hour prior through two hours following the commencement of a funeral,
was not unconstitutional on its face because it is content neutral; narrowly
tailored to serve a significant governmental interest of protecting the privacy
of grieving families, and to preserve the peaceful character of cemeteries,
mortuaries, churches, and other places of worship during a funeral. Further,
ample alternate channels existed for communication of the controversial
plaintiff Westboro Baptist Church's (WBC) message which expresses purportedly
religiously inspired messages against the funerals of gay people and sometimes
U.S. soldiers (“Thank God for Dead Soldiers.”). The appeals court considered the amended
NFPL with the 500-foot buffer zone in its as-applied review, and held that the
trial court did not clearly err in finding that there was no evidence to
suggest that the NFPL was applied to plaintiff and not others similarly situated.
It also concluded that the evidence was insufficient to show that law
enforcement unconstitutionally restricted the plaintiff's picketing to areas
well beyond the 500 foot buffer zone. The court also determined that the police
department did not unconstitutionally disfavor the plaintiff's viewpoint or
allow others to unlawfully block the WBC's picket by preferentially allowing
them to break Nebraska laws. Phelps-Roper v. Ricketts, #16-1902, 2017
U.S. App. Lexis 14877 (8th Cir.).
A Maine state statute
prohibits any person from making noise that “can be heard within a
building” when such noise is made intentionally, following an order from law
enforcement to cease making it, and with the additional intent either to
jeopardize the health of persons receiving health services within the building
or to interfere with the safe and effective delivery of those services. A
federal appeals court overturned a trial court ruling holding that the law
facially violated First Amendment free speech rights. The trial court viewed
the law as a content-based speech restriction which did not satisfy strict
scrutiny. The appeals court rejected this analysis, holding that the noise
provision was properly treated as a content-neutral time, place, or manner
restriction that survived the plaintiff’s facial challenge under intermediate
scrutiny. March
v. Mills, #16-1771, 2017 U.S. App. Lexis 14580 (1st Cir.).
Members of the “Occupy
Chicago” protest group were arrested and charged with violating a city park
district code that closes all public parks between 11 p.m. and 6 a.m., and
makes it illegal to stay in the parks during those hours. A state trial court
dismissed the charges, finding the ordinance unconstitutional on its face and
as applied, reasoning that it violated free speech assembly rights. An
intermediate state appeals court reversed, finding that the ordinance did not
violate either the First Amendment or the free speech provisions of the
Illinois state Constitution. The Illinois
Supreme Court agreed, holding that the Illinois Constitution of 1970 is to be
interpreted and applied in “lockstep” with the federal precedents interpreting
and applying the assembly clause of the First Amendment. In arguing that the
state constitution provided greater protection (“strict scrutiny”), the
defendants forfeited any claim that the appeals court failed to properly
conduct intermediate review under the First Amendment. People v. Alexander,
2017 IL 120350, 2017 Ill. Lexis 120350.
A
street performer and her friend were arrested on the Las Vegas strip and
charged with conducting business without a license because they were dressed in
“sexy cop” outfits and posed for photos with the officers in exchange for a
tip. It was the plaintiff’s friend who asked the officers for the tip. After
the charges were dropped, the plaintiff sued the officers, arguing that the
arrest violated her First Amendment rights. Overturning summary judgment for
the officers, a federal appeals court found that the record indicated the officers had no evidence before
them when they decided to arrest the plaintiff that suggested that the
"sexy cops" costumes had any purpose that could have fallen outside
the protection of the First Amendment. To infer from the plaintiff and her
friend's shared costumes and joint performance alone an agreement to engage in
a transaction subject to regulation impermissibly burdens the right to engage
in purely expressive activity and association. The court held that something
more than that constitutionally protected activity was required to justify the
plaintiff's arrest. Viewing the plaintiff's activities separately from her
friend's, the court held that summary judgment for the officers was improper
because her actions were entirely protected speech. Santopietro
v. Howell, #14-16324, 2017
U.S. App. Lexis 9028 (9th
Cir.).
A tattoo artist sued a California city,
arguing that its zoning ordinances violated his First Amendment rights by
unreasonably restricting his plan to open and operate a tattoo shop there. A
federal appeals court held that the plaintiff raised a viable claim that
the city's zoning ordinances constituted an unlawful prior restraint on speech,
and constituted unlawful time, place, or manner restrictions on speech. The
plaintiff challenged the location restrictions on tattoo shops, and the
requirement of a conditional use permit which he vested unbridled discretion in
the city. It was not necessary for the ordinances to prohibit tattooing
entirely in order to be a prior restraint; Real v. City of Long Beach, #15-56158,
2017 U.S. App. Lexis 5446 (9th Cir.).
Two nonprofit protest
organizations challenged D.C.’s sign posting rules that required them to remove
signs relating to an event 30 days after protest demonstrations, regardless of
whether a 180-day period allowing signs on public lampposts had expired. A
federal appeals court ruled that the rules were reasonable time, place, and
manner restrictions, and were not imposing a content-based distinction in
violation of the First Amendment. The rules at issue regulate how long people
may maintain event-related signs on public lampposts, not the content of the
signs’ messages, and were narrowly tailored to further a well-established,
admittedly significant governmental interest in avoiding visual clutter. Act Now to Stop War and End Racism Coalition v.
District of Columbia, #12-7139, 846 F.3d 391 (D.C. Cir. 2017).
A protest group coalition challenged a 2008 federal
Park Service regulation reserving areas on Freedom Plaza in Washington,
D.C. for the defendant Presidential Inaugural Committee at an inauguration
parade. The plaintiffs claimed that this interfered with their First Amendment
right to use the same space for a large demonstration against the Presidential
Inauguration. Upholding summary judgment for the Park Service, a federal
appeals court held that the regulation authorizing the priority permit,
including the space on Freedom Plaza for the bleachers, was not a content- or
viewpoint-based speech restriction, but a reasonable time, place, and manner
regulation of the use of a public forum. The First Amendment does not support
the plaintiffs’ claim of a right to displace spectator bleachers with its own
demonstration at the same location. The regulation
left 70 percent of the parade route open to the public, including
demonstrators. A.N.S.W.E.R. Coalition v. Basham, #16-5047, 845 F.3d 1199, (D.C.
Cir. 2017).
A freelance photographer and a media outlet he
supplied photos to sued a New Hampshire state trooper who allegedly violated
their constitutional rights by seizing the photographer’s camera without a
warrant at the scene of a vehicle crash. The trial court concluded that even if
these actions were unconstitutional under current law, the trooper was entitled
to qualified immunity from suit because constitutional standards as applied to
a situation like this one were unclear at the time of the challenged conduct
(August 2010). A federal appeals court affirmed, holding that the plaintiffs
failed to identify clearly established law at the time of the challenged
conduct showing beyond debate that the officer’s specific acts violated the
First Amendment. Belsito Communications, Inc v. Decker, #16-1130, 2016 U.S.
App. Lexis 23201 (1st Cir.).
An evangelical Christian who claimed that a police
commander threatened to confiscate his religious banners which he attempted to
bring into an Irish Fair could pursue claims against her in her individual
capacity for violating his First Amendment rights, but could not pursue similar
claims against the city, its police chief, or the commander in her official
capacity, as nothing in the record showed that the permits for the festival or
the city's permitting regulations would subject him to prosecution for engaging
in his desired religious expression of displaying his banners and engaging in
preaching at the fair. Nothing showed that the commander was a policymaker for
the city. Miller v. City of St. Paul, #15-2885, 2016 U.S. App. Lexis 9362 (8th
Cir.).
A city ordinance prohibited congregating or demonstrating
within 15 feet of the entrance to a hospital or health care facility, with
exceptions for public safety personnel or those assisting patients. The
plaintiffs, who wished to provide sidewalk counseling outside a Planned
Parenthood facility claimed that this violated their First Amendment rights. A
federal appeals court held that the First Amendment claims could go forward.
The city needed to show that it seriously considered substantially less
restrictive alternatives that would achieve its legitimate, substantial, and
content-neutral goals of protecting unobstructed patient access before it
substantially burdened protected First Amendment speech. Bruni v. City of
Pittsburgh, #15-1755, 2016 U.S. App. Lexis 10019 (3rd Cir.).
City ordinances required licenses before
businesses were allowed to offer nude or partially nude entertainment. Two
businesses, the first of which had applied for a license, and a second business
that had not applied, filed challenges to the ordinance, seeking both injunctive
relief and damages. The ordinances were repealed, so they dropped the claim for
injunctive relief, but pursued the damage claims. The trial court found that
the ordinances had been based on the time, place, and manner of expression, but
did not include constitutionally required procedural safeguards. The business
that did not apply for a license still had standing to pursue its damage claim,
since the chilling effect of the unconstitutional laws violated their right to
freedom of expression. It was therefore awarded $435,000 in compensatory
damages as the jury found that but for the ordinances, they would have opened a
club providing nude entertainment. The other business, which applied for a
license, was awarded nominal damages. Six Star Holdings, LLC v. City of
Milwaukee, #15-16i08, 2016 U.S. App. Lexis 6682 (7th Cir.).
Two men distributed pamphlets with information
about "jury nullification" outside a state courthouse. They were
arrested and charged with jury tampering. Plaintiffs, who similarly wanted to
distribute jury nullification literature to individuals outside the courthouse
who might be prospective jurors sued the city, county, and police chief,
seeking to establish their First Amendment right to do so. The trial court
issued a preliminary injunction against the enforcement against the plaintiffs
of a police order barring all expressive activity in the area around the
courthouse. A federal appeals court found that the trial court had not abused
its discretion in enjoining the enforcement of the order. "[T]he
government’s power to control speech in a traditional public forum is
circumscribed precisely because the public has, through the extent and nature
of its use of these types of government property, acquired, in effect, a
'speech easement' that the government property owner must now honor."
Verlo v. Martinez, #15-1319, 2016 U.S. App. Lexis 6463 (10th Cir.).
A man engaged in street preaching was arrested in
several incidents while carrying a shofar, a trumpet-like instrument made from
a ram's horn. commonly used in Jewish high holiday services to make loud
noises. He was arrested for possessing the shofar, which officers contended
violated an ordinance specifying the dimensions of signs and objects that could
be carried during street demonstrations. The shofar was 37 inches long and 6
inches wide. The ordinance stated that "All objects which are generally
rectangular in shape shall not exceed one-fourth inch in thickness and two
inches in width," and "All objects which are not generally rectangular
in shape shall not exceed three-quarters inch in their thickest
dimension." A federal appeals court held that the arresting officers were
entitled to qualified immunity for the arrest. They did not violate the Fourth
Amendment, as possession of the shofar provided a reasonable basis for his
detention, quite apart from disputed factual issues as to whether or not he
complied with officers' orders or stepped into the roadway. The officers also
did not violate the plaintiff's First Amendment rights, and it was clear that
they did not know of the religious significance of the shofar. Allen v.
Cisneros, #15-20264, 2016 U.S. App. Lexis 4401 (5th Cir.).
The plaintiff filed challenges to a city's
ordinances prohibiting the use of sound amplification devices on public
sidewalks and prevailed, invalidating several aspects of the ordinance. He was
also awarded nominal damages. As a result, the ordinance was amended to expand
the permissible use of amplification devices. While a plaintiff who prevails but
is only awarded nominal damages while seeking compensatory damages may be
denied attorneys' fees, this lawsuit did not seek compensatory damages.
Instead, the lawsuit primarily sought to change the law and succeeded in that,
and therefore could be awarded attorneys' fees under federal law, while being
properly denied such fees on claims brought under California law. Klein v. City
of Laguna Beach, #13-56973, 2016 U.S. App. Lexis 578 (9th Cir.).
A man who engaged in filming airport security
procedures and was questioned there on suspicion of disorderly conduct was
arrested for concealing his identity from officers by declining to show
identification. He sued, claiming that he was arrested without probable cause
and in retaliation for engaging in protected speech in violation of the First
Amendment. A federal appeals court found that the defendant officers and
Transportation Security Administration agents were entitled to qualified
immunity, since a reasonable officer could have believed that he violated state
law by not showing identification during an investigatory stop, and could also
reasonably believe that they had probable cause to arrest him when he filmed at
an airport security checkpoint. Additionally, at the time of the arrest, it was
not clearly established that unlawful retaliation claims could arise from
arrests supported by probable cause. Mocek v. City of Albuquerque, #14-2063,
2015 U.S. App. Lexis 435 (10th Cir.).
A Florida city barred a man from opening a tattoo
business in the city's designated historic district. He sued, claiming that
this violated his First Amendment rights and further that an ordinance
restricting the number of such businesses in the historic district suppressed
free expression. A federal appeals court agreed that tattooing is protected
artistic expression and reversed summary judgment for the city. The city failed
to establish that its ordinance constituted a reasonable time, place, and
manner restriction. Aside from a "vague statement of purpose," the city
presented insufficient evidence that the law would actually serve the purpose
of avoiding a negative impact on tourism if tourists rashly decide to get
tattoos that they later regret. Buehrle v. City of Key West, #14-15354, 2015
U.S. App. Lexis 22782 (11th Cir.).
A D.C. regulation forbids anyone from camping on
public property without the mayor's approval. Members of the "Occupy
Movement" sued, claiming that their arrests violated their constitutiobal
rights under the Fourth and First Amendments. A federal appeals court held that
the officers had probable cause for the arrests as the plaintiffs clearly set
up a tent as defined by the regulation on public land without authorization.
Qualified immunity protected the officers from liability on the plaintiffs' claim
that they were arrested in retaliation for their protests in violation of the
First Amendment, as such arrests based on probable cause did not violate
clearly established law. Dukore v. District of Columbia, #13-7150, 799 F.3d
1137 (D.C. Cir. 2015).
A man claimed a violation of his constitutional
rights based on police using physical force to eject him from a city court
where he was waiting for his attorney in a public area outside th county
clerk's office. A federal appeals court held that the plaintiff's First
Amendment claim was properly dismissed because the plaintiff had not alleged
that he was engaged in any form of expressive activity at the time or that his
removal impaired his access to any judicial records. His Fourth Amendment claim
should not have been dismissed for failure to plead seizure, as the use of
physical force to restrain him and control his movements so as to eject him,
could be either reasonable or unreasonable, even though he was free to go
anywhere else he wanted after ejected from the court. Salmon v. Blesser,
#14-1993, 2015 U.S. App. Lexis 16070 (2nd Cir.).
Muslim plaintiffs claimed that the New York City
Police Department, since January of 2002, had carried out a secret program
monitoring the lives of Muslims, as well as their businesses, houses of
worship, organizations and schools both in New York and surrounding states such
as New Jersey solely because they were Muslim. The program allegedly included
the use of remote controlled surveillance cameras aimed at mosques and the
sending of undercover officers into mosques, student organizations, businesses,
and neighborhoods believed to be heavily Muslim. The plaintiffs argued that
this falsely stigmatized Muslims as criminals who should be pervasively
surveilled. Overturning a trial court dismissal of the lawsuit for lack of
standing and failure to state a claim, a federal appeals court held that the
allegations “tell a story in which there is standing to complain and which
present constitutional concerns that must be addressed and, if true,
redressed.” The court compared the alleged surveillance program to the
situations faced by Japanese-Americans during World War II, Jewish-Americans
during the Red Scare era, and African-Americans during the civil rights era.
Claims in the case involved alleged violations of religious liberty under the
First Amendment and equal protection violations based on intentional
discrimination against a protected class. The court stated that the allegations
raised a presumption of unconstitutionality that the city had an obligation to
rebut. The plaintiffs' First Amendment religious freedom claims could also go
forward. Hassan v. City of New York, #14-1688, 2015 U.S. App. Lexis 17776 (3rd
Cir.).
A music group called the Insane Clown Posse had numerous
devoted fans who called themselves "Juggalos" and often displayed on
their property or person insignia representing the band, including tattoos and
painting their faces like clowns. The National Gang Intelligence Center,
operated by the FBI, issued a 2011 congressionally mandated report on gang
activity that identified the Juggalos as a "hybrid gang," and relayed
information about criminal activity said to have been committed by subsets of
the Juggalos. A number of such fans claimed that this caused them to suffer
violations of their First and Fifth Amendment rights by state and local law
enforcement officers who were "motivated" to cause these injuries and
detentions and searches by the identification of the group as a criminal gang.
A lawsuit against the FBI and Department of Justice was filed under the
Administrative Procedures Act and the Declaratory Judgment Act. A federal
appeals court overturned the dismissal of the lawsuit for lack of standing. The
plaintiffs adequately alleged that the harm to their reputations and chill to
their First Amendment activities was caused by the report and those injuries
could likely be alleviated by the relief sought, such as an order holding the
classification of the Juggalos as a criminal street gang to be unlawful.
Parsons v. Dep't of Justice, #14-1848, 2015 U.S. App. Lexis 16528, 2015 Fed.
App. 0230P (6tth Cir.).
A federal appeals court upheld an injunction
against enforcement of a city ordinance barring standing, sitting, staying,
driving, or parking on median strips. The ordinance was found to violate the
constitutional right of free speech because it "indiscriminately"
outlaws almost any expressive activity in all of the city's median strips.
Further, it was found not to be narrowly tailored to serve the city's indicated
interests in protecting people in the streets and on medians. Such medians
historically were traditional public forums based on their past uses, and had
routinely, prior to enactment of the ordinance, been the site of many types of
protected speech including election campaigning, charitable contribution
solicitations, and political protests. Cutting v. City of Portland, Maine,
#14-1421, 2015 U.S. App. Lexis 16206 (1st Cir.).
A federal statute, 40 U.S.C. Sec. 6135, prohibits
parading, standing, or moving in processions or assemblages in the U.S. Supreme
Court building or the surrounding grounds, or displaying there a flag, banner,
or device designed to bring into public notice a party, organization, or
movement. A plaintiff who wished to picket, leaflet, and make speeches in the
Supreme Court plaza to convey political messages claimed that the law violated
the First Amendment. A federal appeals court, reversing the trial court, found
the statue constitutional. It held that the Supreme Court's plaza was a
nonpublic forum, and that the government could impose reasonable restrictions
on speech there as long as it did not suppress particular viewpoints in doing
so. There were long-standing governmental interests in preserving decorum in
the area of the courthouse and in ensuring the appearance and actuality of a
Court uninfluenced by public pressure and opinion. Further there was an
available alternative site for expressive activity in the immediate area, the
public sidewalk directly in front of the plaza. Hodge v. Talkin, #13-5250, 2015
U.S. App. Lexis 15190 (D.C. Cir.).
Springfield, Illinois, the state's capital, had
an ordinance prohibiting panhandling in the downtown historic district, which
was less than 2% of the city's area, containing it main shopping,
entertainment, and governmental areas. Panhandling was defined as oral requests
for immediate donations of money, while signs requesting money or oral pleas to
send money later were both allowed. A federal appeals court previously upheld
the ordinance, Norton v. City of Springfield, #13-3581, 768 F.3d 713,2014 U.S.
App. Lexis 18439 (7th Cir. 2014), stating that the ordinance was
"indifferent to the solicitor's stated reason for seeking money, or
whether the requester states any reason at all," and did not interfere
with the "marketplace of ideas," but instead imposed a valid
restriction based on time, place, and manner--a restriction based on subject
matter rather than content. The appeals court granted a rehearing after the
U.S, Supreme Court's decision in Reed v. Gilbert, #13-502, 2015 U.S. Lexis 4061
(striking down a town's sign code that prohibits the display of outdoor signs
without a permit, but exempts 23 categories of signs, including
"ideological" or political signs. The Court found these to be content
based restrictions that did not survive strict scrutiny.). The appeals court
then reversed for further proceedings. In Reed, the Court stated that "A
law that is content based on its face is subject to strict scrutiny regardless
of the government's benign motive, content-neutral justification, or lack of
'animus toward the ideas contained' in the regulated speech" and "a
speech regulation targeted at specific subject matter is content based even if
it does not discriminate among viewpoints within that subject matter." The
appeals court expressed the opinion that Reed had effectively abolished any
distinction between subject matter regulation and content regulation. As a
result, "any law distinguishing one kind of speech from another by
reference to its meaning now requires a compelling justification," as a
result of which the appeals court ordered that an injunction be issued against
the enforcement of the ordinance. Norton v. City of Springfield, #13-3581, 2015
U.S. App. Lexis 13861 (7th Cir.).
An "Occupy" protester on government
land in D.C. started tearing down U.S. Park Police notices from tents. The
notices informed occupants that they were required to vacate the premises. He
was told that he would be arrested for disorderly conduct if he did not stop
his activity. He swore at police, crumpled up notices he had gathered, and
threw them away. A video showed him continuing to tear down notices after
ordered to stop. As he walked away, an officer tried to grab him from behind. Then
a Taser was used on him in stun mode on his back as he allegedly resisted
efforts to restrain him. The trial court held that, under the circumstances, no
reasonable jury could find that the force used was so excessive that no
reasonable officer could believe that it was lawful. The use of the Taser to
effect an arrest was reasonably proportionate to the difficult and uncertain
situation that the officers faced, so they were entitled to qualified immunity.
Lash v. Lemke, #12-0822, 2013 U.S. Dist. Lexis 134951 (D. D.C.). On appeal, a
federal appeals court agreed that qualified immunity protected the officers
against liability on the Fourth Amendment claim, but on different grounds. The
appellate court ruled that a person actively resisting arrest does not have a
clearly established right against a single use of a Taser to subdue him. The
court also granted summary judgment to the officers on a First Amendment claim
because the plaintiff failed to meaningfully advance the argument on appeal.
There was nothing in the record to indicate that the use of force was
retaliatory for the plaintiff's First Amendment expression. Lash v. Lemke,
#13-5308, 2015 U.S. App. Lexis 8011 (D.C. Cir.).
A couple were out walking with their daughter,
grandson, and a dog. The man carried a cell phone, holstered on his hip, next
to a semiautomatic handgun. a motorcyclist passing by stopped to complain about
the visible weapon, and after a heated argument, called 911. The dispatcher
stated that the weapon was legal in Ohio with a concealed carry weapon permit.
An officer was dispatched, and took possession of the man's weapon. The officer
threatened to arrest the man for inducing panic and placed him in handcuffs.
After the officer discovered that the man had a carry permit for the weapon, he
released him while citing him for failure to disclose personal information, a
charge later dropped. The man had produced his driver's license, but told the
officer to look up his carry permit. While the trial court rejected First and
Second Amendment charges against the officer on summary judgment, it permitted
Fourth Amendment and state law claims to go forward. A federal appeals court
upheld this result. It noted that the officer had the right to approach the
plaintiff and ask him questions, but that Ohio law permitted the man, with his
permit, to do exactly what he was doing, openly carry his firearm. The officer
had no basis for uncertainty abut the law, and had no evidence that the man was
dangerous. All that he saw was that the man was armed, and legally so. There
was no basis for reasonable suspicion of inducing panic or that the man needed
to be disarmed, and allowing stops in these circumstances would effectively
eliminate Fourth Amendment protection for legally armed persons. The court noted
that "Not only has the State made open carry of a firearm legal, but it
also does not require gun owners to produce or even carry their licenses for
inquiring officers." While the officer also claimed that the man made a
"furtive motion" towards his weapon before being disarmed, that was
disputed and was an issue of fact for a jury. A second officer, who did not
arrive on the scene until after the plaintiff was already handcuffed and placed
in the back of the first officer's car, however, was entitled to qualified
immunity, as he had not detained, disarmed, or handcuffed the plaintiff.
Northrup v. City of Toledo Police Dep't., #14-4050, 2015 U.S. App. Lexis 7868,
2015 Fed. App. 0092P (6th Cir.).
A man who owned business property 150 feet from a
local polling place sued state and local officials claiming that a state
statute that created a 300 foot no political speech buffer zone around polling
places on election day violated his First Amendment rights. Based on the
statue, sheriff's deputies had allegedly removed political signs from the
plaintiff's property on previous election days, and informed him that the
statute prohibited him, on such days, from waving signs on his own property or
offering campaign literature to persons passing by. A federal appeals court
upheld a permanent injunction against the statute as unconstitutional in
violation of the First Amendment. The state failed to carry its burden of
showing why it required a no political speech buffer zone vastly larger than
previously upheld by the U.S. Supreme Court. Russell v. Lundergan-Grimes,
#14-6262, 2015 U.S. App. Lexis 6977 (6th Cir.).
A woman claimed that a state trooper started
harassing her in 2007, tailgating her in an off-duty vehicle, parking behind
her, and questioning her about her driving. When the officer and the female
motorist's adult son exchanged heated words, the officer at first allegedly
stated that the motorist would receive an additional ticket because of her
son's statements and then left without issuing any tickets when the son stated
that he would complain to the officer's supervisor. After the motorist
complained abut this, the officer, hours later, arrived at her home and
delivered three tickets. After her son mentioned the alleged harassment at a
restaurant, the trooper, accompanied by a fellow officer, again returned to the
home, resulting in a confrontation with the woman's son-in-law. A federal
appeals court ruled that a First Amendment retaliatory prosecution claim was
time barred as it was filed two years after the tickets were delivered to the
woman, which was the date the claim accrued, rather than the later date of the
trial when she was convicted on the tickets. The trial court erred, however, in
dismissing a Fourth Amendment constructive seizure complaint against the
trooper on the basis that the plaintiff failed to specifically identify in that
claim that she was proceeding under 42 U.S.C. Sec. 1983 rather than merely
under the Fourth Amendment. Smith v. Campbell, #14-1468, 782 F.3d 93 (2nd Cir.
2015).
Groups of protestors, including some concerned with
alleged sexual abuse by clergy and others promoting acceptance of gay, lesbian,
or transgender people or Catholic ordination of women, filed a lawsuit
challenging the constitutionality of a Missouri state statute prohibiting
intentional disturbance of a "house of worship" through the use of
"profane discourse, rude or indecent behavior . . . either within the
house of worship or so near it as to disturb the order and solemnity of the worship
services." They argued that the law was facially invalid under the First
Amendment. A federal appeals court agreed. The court commented that there was
no actual evidence of disturbance to houses of worship or indication that
protests had interfered with church members' entry or exit from services. The
law, the court found, made content-based distinctions on the type of expression
allowed near a church. this could cause "a substantial risk of suppressing
ideas in the process." Law enforcement officials were given impermissible
power to look at the content of the message. The law could not survive the
scrict scrutiny appropriate for content-based distictions that were not
necessary to achieve the asserted interest in protecting free religious
exercize. Survivors Network of Those Abused by Priests v. Joyce, #13-3036, 779
F.3d 785 (8th Cir. 2015).
A group of advocates for homeless peopl were
threatened with arrest and then arrested for loud chanting to protest an
organized walk by elected officials and their supporters through a skid row
area. They were charged under a state statute under which "willfully
disturb or break up any assembly or meeting that is not unlawful in its
character" other than a political meeting, is a misdemeanor. A federal
appals court found that, while the statute in question was not facially
unconstitutional, it was unconstitutional as applied to the plaintiff's
behavior, or political meetings as occurred here. The statute was improperly
applied in this case to a group's protest of a meeting of public officials and
members of the public to discuss conditions in the skid row area. As to public
meetings in which people assemble to consider "public questions,"
arrests of protestors are only allowable if a protestor engages in "threats,
intimidations, or unlawful violence," not for non-violent political
protest. CPR For Skid Row v. City of Los Angeles, #12-55289,779 F.3d 1098 (9th
Cir. 2015).
Two participants in Occupy Wall Street protests in
front of the Austin, Texas city hall sued the city and won both declaratory and
injunctive relief against a policy under which such demonstrators were issued
criminal trespass notices to get off of city property. The trial court ruled
that the policy, on its face, violated the First Amendment. They were not, however,
awarded the nominal damages they sought. A federal appeals court ruled that the
plaintiffs were prevailing parties, still entitled to an award of attorneys'
fees, despite not receiving damages, since their primary goal was to force the
city to stop issuing the notices, and they achieved that goal. Further hearings
will determine the amount of the fees to be awarded. Sanchez v. City of Austin,
#13-50916, 774 F.3d 873 (5th Cir. 2014).
A homeless man who supports himself by soliciting
donations filed a federal lawsuit challenging a county ordinance prohibiting
solicitations on county roadways. A federal appeals court found that the county
had the burden of showing the constitutionality of the ordinance, which the
plaintiff showed limited his ability to collect donations because he was forced
to move to locations where it was more difficult for drivers to give him money.
It further ruled that the county failed to show that the ordinance was content
neutral and was a narrowly tailored time, place, and manner restriction on free
speech, or that it left open ample alternative channels of communication. While
the county showed that the ordinance materially advanced its interest in
roadway safety, it failed to show that it had tried to improve safety by prosecuting
those roadway solicitors who actually obstructed traffic or had thought about
barring solicitations only at certain locations where it could not be done
safely. Reynolds v. Middleton, #13-2389, 2015 U.S. App. Lexis 2704 (4th Cir.).
A
well known female political activist was arrested and jailed for disorderly
conduct and breaching the peace after an incident in which she shouted
"Fuck the Police! Cobb Police Suck!" and gave two officers "the
finger" while riding a bicycle on a public street when she saw the
officers confronting an African-American man in a supermarket parking lot. She
was forty feet away from the officers at the time, and the incident was
recorded by a camera in a police patrol car. A trial judge threw out the
charges, stating that "The defendant's statements, although offensive to
this court, clearly constitute political speech." She filed a federal
lawsuit over the arrest, claiming that it violated her First Amendment rights,
and that she did not interrupt or disrupt the police from performing their
duties. The county has reached a $100,000 settlement in the case. Barnes v.
Cobb County, Georgia, #1:14-cv-00948, U.S. Dist. Court, (N.D. Ga. December 19,
2014).
Ku Klux Klan members in a small city regularly
distributed leaflets on streets and sidewalks wearing robes and hoods. Klan
members leafleting about gun rights stood at a sidewalk near a four way stop
holding up leaflets and stepping into the streets to supply one if a vehicle
occupant signaled for one. Police informed them that a new ordinance prohibited
distributing anything to the occupant of a vehicle. While litigation was
pending, the ordinance was amended to explain that it sought to address public
safety concerns, such as distracting drivers and resulting collisions.
Overturning an injunction against the ordinance as not sufficiently narrowly
tailored to serve an important governmental interest, a federal appeals court
ruled that there was no evidence that the purpose of the ordinance was to
curtail the Klan's message or limit its speech, and the record did not show an
obvious, less burdensome alternative. Traditionalist Am. Knights of the Ku Klux
Klan v. City of Desloge, #13-3368, 2014 U.S. App. Lexis 24422 (8th Cir.).
Chicago police arrested 130 demonstrators from Occupy
Chicago for violating a Park District Ordinance prohibiting remaining in a city
park from 11 p.m. to 6 a.m. An intermediate Illinois appeals court held that
the ordinance was not overbroad in violation of the First Amendment. It only
applied to city parks, and only restricted presence there for seven hours at
night. It did not bar anyone from engaging in expressive activities on public
sidewalks or other adjacent public spaces outside the parks, thus providing
ample opportunities for expressive activities outside the parks during late
night hours. The ordinance was also not selectively enforced. The City of
Chicago v. Alexander, 2014 IL App (1st) 122858 2014 Ill. App. Lexis 924.
A federal court jury awarded a total of
approximately $97.5 million for the police shooting death of a man who was the
former mayor of Cottageville, South Carolina. Damages awarded included $7.5
million in compensatory damages, as well as $90 million in punitive
damages--$60 million against the town and $30 million against the officer. The
officer who shot the decedent had been hired by the department after being
previously fired by a number of other police departments for insubordination,
dangerous use of firearms, and other alleged infractions. The officer claimed that
the shooting was in self-defense because the decedent threw "wild"
punches at him. His attorney argued that the decedent suffered from a bipolar
disorder and was enraged during the incident. The plaintiffs contended that the
decedent had complained about the officer, who wrote traffic tickets worth over
$600,000 from 2008 to 2011, more than any other officer on the force, and that
the shooting was retaliatory for the decedent's complaints intended to get rid
of the officer because of his aggressive policing. Reeves v. Town of
Cottageville, #2:12-cv-02765, U.S. Dist Ct., (D.S.C. Oct. 15, 2014). In an
earlier decision, the trial judge commented that evidence of the officer's
departure from six other law enforcement agencies in seven years was
"obviously admissible" against him with respect to the claim that the
town and police department negligently hired, retained, and supervised the
officer, and a claim for municipal liability for violation of civil rights.
This evidence, the court ruled, had a bearing on whether the municipal
defendants properly evaluated the officer's credentials befire hiring him.
Reeves v. Town of Cottageville, #2:12-cv-02765, 2014 U.S. Dist. Lexis 120619
(D.S.C.).
Six "Occupy Nashville" protestors
claimed that their arrests for violating a curfew while they were conducting an
around-the clock presence at a public plaza violated their First and Fourth
Amendment rights. The curfew, they argued, had been adopted in violation of the
state's Administrative Procedures Act. A federal appeals court held that, even
if that were true, state officials were entitled to qualified immunity because
the claimed First Amendment right to an unrestricted 24-hour a day access to
the plaza was not a clearly established constitutional right. Occupy Nashville
v. Haslam, #13-5882, 2014 U.S. App. Lexis 19154, 2014 Fed. App. 0253P (6th
Cir.).
A federal judge preliminarily enjoined the
enforcement of a "five second rule" against anti-police protesters in
Ferguson, Missouri. The rule was purportedly used to require protesters to keep
moving and prevent them from standing still for too long, under threat of
arrest. The court found that the rule was so vague and enforced so arbitrarily
with unfettered discretion that it violated due process and the First Amendment
right to assemble. "Criminal laws must be defined in a way that allows
ordinary people to understand what conduct is against the law." Abdullah
v. County of St. Louis, Missouri, #4:14CV1436, 2014 U.S. Dist. Lexis 141744
(E.D. Mo.).
A city's ordinance prohibited panhandling in its
"downtown historic district," constituting less than 2% of the city's
land, but containing the state capital's main governmental buildings and the
main shopping and entertainment areas. A federal appeals court upheld the
ordinance against a First Amendment challenge. Panhandling was defined as an
oral request for an immediate donation of money, and the ordinance allowed
signs requesting money or oral requests to send money later. The parties had
agreed that panhandling was a form of speech protected by the First Amendment
and that if the ordinance drew lines on the basis of the content of speech it
would be unconstitutional. Here, the court said, the ordinance was
"indifferent to the solicitor's stated reason for seeking money, or
whether the requester states any reason at all," and did not interfere
with the "marketplace of ideas," but instead imposed a valid
restriction based on time, place, and manner. Norton v. City of Springfield,
#13-3581, 2014 U.S. App. Lexis 18439 (7th Cir.).
A mass arrest of 700 Occupy Wall Street
demonstrators was made after they walked onto a bridge roadway. The arrestees
claimed that this violated their First, Fourth, and Fourteenth Amendment
rights. The officers were not entitled to qualified immunity. The plaintiffs
alleged that the officers directed their activity along the route that led to
them entering the bridge. If the facts were as alleged, no reasonable officer
could have believed that the warning to clear the roadway was sufficiently
audible for the crowd to hear it. Further, the demonstrators alleged that the
officers had retreated onto the bridge in a manner that could be reasonably
understood to constitute a continuation of the officers' earlier practice of
allowing the demonstrators to proceed in violation of traffic laws. Garcia v.
Does, #12-2634, 2014 U.S. App. Lexis 16156 (2nd Cir.).
An annual Arab International Festival, drawing as
many as 250,000 people was hosted in a Michigan city. Preparing for the 2012
event, a Christian group that had been involved in some confrontations there
the year before with those objecting to their Christian signs, banners, and
t-shirts, had their attorney send a letter to the county. He complained that
the sheriff had sided with "violent Muslims" in attendance, and
demanded protection at the upcomong festival, claiming that officers had a duty
to protect speakers from "hostile audiences." The county's lawyer
responding, saying that the county only had a general duty to the public and
was not required to have sheriff's personnel serve as a security force for the
sole benefit of the Christian group. At the 2012 festival, the Christian group,
known as Bible Believers, displayer anti-Islam messages such as "Islam is
a Religion of Blood and Murder," while one of its members carried a
severed pig's head on a stick, and others used a megaphone to preach about a
"pedophile" prophet. Bystanders in the crowd threw debris, yelled,
and shoved a Believer to the ground. Officers detained some debris-throwers and
tried the stop the disturbance. As the Believers continued to preach, the
disturbance grew, and the officers escorted the Believers out, concerned for
their safety. The officers' actions did not violate the Believers group's First
Amendment rights. The security plan for the festival was content neutral, and
the plaintiffs were not treated differently than the counter-protestors in the
crowd. Threats to cite members of the Believers if they did not leave did not
violate free speech, as they were allowed to speak until the possibility of
violence and physical injury became too great. Bible Believers v. Wayne Cnty,
#13-1635, 2014 U.S. App. Lexis 16533, 2014 Fed. App. 0208P (6th Cir.).
An
anti-abortion protester successfully sued a county sheriff's office for
violation of First Amendment rights by requesting that graphic signs with
disturbing pictures of aborted fetuses not be displayed in a public
demonstration. While injunctive relief was awarded, no damages were awarded
against individual defendants because of qualified immunity. In Lefemine v.
Wideman, #12-168, 133 S. Ct. 9, 10 (2012), the U.S. Supreme Court held that the
plaintiff was still a prevailing plaintiff fo purposes of an award of
attorneys' fees. On remand, the trial court abused its discretion by denying
the plaintiff an award of attorneys' fees. The presence of qualified immunity,
the nature of the relief granted, and the absence of a policy or custom of
discrimination were not enough, individually or taken together, to deny an
award of such fees. Lefemine v. Wideman, #13-1629, 2014 U.S. App. Lexis 13218
(4th Cir.).
An officer had at least arguable probable cause
to arrest a man for trespass for refusal to leave a bus stop after he was
observed waiting there without getting on any bus, so the officer was entitled
to qualified immunity. While the plaintiff described being pepper sprayed as
painful, there was insufficient evidence of more than "de minimus"
(minimal) injury, so the officer was entitled to qualified immunity on an
excessive force claim. The officer was not entitled, however, to qualified
immunity on a retaliatory use of force claim, as he argued that the pepper
spray had been used in retaliation for his protected First Amendment speech of
asking for the officer's badge number. Peterson v. Kopp, #12-3776, 754 F.3d 594
(8th Cir. 2014).
A trial court properly denied a preliminary
injunction to prevent enforcement of most provisions of an ordinance aimed at
aggressive panhandlers, other solicitors, and demonstrators seeking the
attention of motorists (other than a ban on nighttime solicitation). The
ordinance was challenged by homeless people who solicited donations from city
sidewalks and a person who displayed political signs near traffic during
election campaigns. The restrictions in the ordinance were not aimed at the
content of speech, and did not appear to violate the First Amendment. And as
homelessness and wealth were not suspect classifications for equal protection
purposes, the ordinance would only have to survive rational basis scrutiny.
Thayer v. City of Worcester, #13-2355, 2014 U.S. App. Lexis 11578 (1st Cir.).
A county police department reached a $200,000
settlement with a freelance videographer arrested for filming police activity
on a public street. In addition to paying the money, the county agreed to
develop and implement training for officers on citizens' First Amendment rights
to record public police activity. The plaintiff, a freelance journalist, was
filming the scene of a police chase when the police told him to leave. He moved
a block away and continued filming from a public area. Then, despite showing
his press credentials, his camera was confiscated and he was arrested on
charges of obstruction. Datz v. Suffolk County, #12-CV-1770 (E.D.N.Y. May 7,
2014).
A Massachusetts start statute making it illegal
to knowingly stand on a public sidewalk or way within 35 feet of the entrance
or driveway to any reproductive health care facility, including an abortion
clinic, violated the First Amendment rights of anti-abortion protestors. The
unanimous court decision found that the law was content neutral and that an
exemption allowing those who worked in the facility to enter or remain within
the buffer zone was reasonable. But the statute was not narrowly tailored to
serve significant governmental interests and the buffer zone compromised the
protestors' ability to engage in counseling of patients on the sidewalk or to
distribute literature to arriving patients. This amounted to excluding abortion
protestors from areas of the public way historically open to speech and debate.
McCullen v. Coakley, #12-1168, 2014 U.S. Lexis 4499.
The U.S. Supreme Court unanimously held that
Secret Service agents who moved protesters away from a location where President
George W. Bush was dining on an outside patio were entitled to qualified
immunity on First Amendment viewpoint discrimination claims. It ruled that a
federal appeals court had erred in finding that viewpoint discrimination could
be inferred from the alleged lack of a legitimate security rationale for the
different treatment given to two groups of demonstrators present at the event.
The anti-Bush demonstrators, the agents could believe, posed a potential
security risk to the President, based on their particular location, while the
demonstrating Bush supporters, based on their location, did not. As the
anti-Bush demonstrators, unlike the pro-Bush demonstrators, were within
weapons' range, it could not plausibly be shown that the agents could show no
rationale for requesting or ordering the eviction of the anti-Bush
demonstrators. Wood v. Moss, #13-115, 2014 U.S. Lexis 3614.
Under an arrestee's version of the facts, she had
a clearly established First Amendment right to film police carrying out a
traffic stop in public. There was no reasonable restriction imposed or in
place, as there was not even a police order to leave the area or stop filming.
The officers were not entitled to qualified immunity for arresting her for
wiretapping in alleged retaliation for her trying to film the officer making a
late night traffic stop. Gericke v. Begin, #12-2326, 2014 U.S. App. Lexis 9623
(1st Cir.).
A city required adult bookstores to remain closed
all day Sunday and between midnight and 10 a.m. every other day, restrictions
that were not applied to other retail businesses. A federal appeals court
rejected the general justification that the restriction would curtail negative
secondary effects of the bookstores such as crime. On remand, a trial was held
after which the district court accepted the city's claim that there were fewer
armed robberies at or near adult bookstores because of the restrictions. On
further appeal, the appeals court reversed and ordered the entry of an
injunction against the enforcement of the law. The city failed to control the
statistics used for other potentially important variables, including the
presence of late night taverns in the same area. The court found that the
differences in the number of armed robberies cited were not statistically significant,
and that the city failed to show that such robberies would be more likely at
adult bookstores than at late night liquor stores or convenience stores not
covered by the law. Annex Books, Inc. v. City of Indianapolis,
#13-1500, 740 F.3d 1136 (7th Cir. 2014).
A city ordinance generally prohibiting targeted
picketing within 50 feet of a residential dwelling did not violate the First
Amendment. It was content neutral, furthered a significant governmental
interest, was narrowly tailored to serve that interest, and left open ample
alternative methods of exercising free speech. A section of the ordinance
prohibiting loitering on a public forum such as a sidewalk abutting a private
residence gave private individuals impermissible unbridled discretion to invoke
the city's power to regulate speech there and was therefore facially
unconstitutional. Bell v. City of Winter Park, FL, #13-11499, 2014 U.S. App.
Lexis 5250, 24 Fla. L. Weekly Fed. C 1119 (11th Cir.).
A city's policy confining leafleting to a
designated protest area outside an arena did not facially violate the First
Amendment. It was a reasonable time, place, and manner regulation. The appeals
court upheld summary judgment to the defendants in the plaintiff's lawsuit
challenging his arrest for refusing to obey an officer's repeated requests to
confine his leafleting to the designated area. Ross v. Early, #12-2547, 2014
U.S. App. Lexis 4161 (4th Cir.).
A protestor was barred from entering a military
base's designated protest area because of alleged prior acts of trespass and
vandalism. The U.S. Supreme Court ruled that the protest area was included as a
portion of the military installation, making it a federal crime to reenter it
after being ordered not to do so by an officer or person in command. U.S. v.
Apel, #12-1038,188 L. Ed. 2d 75, 2014 U.S. Lexis 1643.
Demonstrators from an "Occupy" group
were removed by police from a 24-hour-a-day protest on the grounds of a state
legislature. The officers were not entitled to qualified immunity as the
plaintiffs had a clearly established First Amendment right to demonstrate on
the legislature's grounds after 6 p.m. when there was no existing valid time,
place, and manner restriction. Occupy Columbia v. Haley, #13-1258, 2013 U.S.
App. Lexis 24866 (4th Cir.).
A federal district court is allowing an
"Occupy D.C." demonstrator to proceed with his claim that he was
arrested for using profanity in violation of his First Amendment rights. Based
on the facts alleged, no reasonable officer could have believed that there was
probable cause for an arrest for disorderly conduct. The words spoken did not
risk provoking violence. All he did was make the remark, addressed to no one in
particular, "Ah, this fucking bullshit" when observing several people
carrying pro-Tea Party signs entering a federal park. The Tea Party people did
not respond, but U.S. Park police arrested him. Patterson v. U.S.A.,
#13-cv-0085, 2013 U.S. Dist. Lexis 178087(D.D.C.).
An officer who was working off-duty, but in full
uniform, asked a woman to move her car from the parking lot of a bar before it
was towed. The woman reacted by cursing and "speaking loudly." The
officer was not entitled to qualified immunity for arresting the woman for
disorderly conduct, since the facts, taken in the most favorable light for the
plaintiff, showed that there was no arguable probable cause for the arrest.
There is no right to arrest people exercising their right to free speech, even
in a loud manner, and the officer himself admitted that the woman had used no
language that was insulting or degrading, only saying "hell" and
"damn," and not even directing those words at him. A sergeant who was
not even on the scene, however, was granted qualified immunity for lack of
personal involvement there, and only relied on the arresting officer as to
there having been grounds for an arrest. Wilkerson v. Seymour, #12-15938, 2013
U.S. App. Lexis 22058, (11th Cir..).
A evangelical Christian had distributed Bibles at
a city gay pride festival using an exhibitor's booth, but one year the festival
denied his application for a booth. A federal appeals court held that he had
shown a likelihood of success on his claim that a local regulation restricting
literature distribution at the public park during the festival violated his
First Amendment rights because itr failed to be narrowly tailored to serve a
significant governmental interest. The denial of a preliminary injunction was
reversed and further proceedings ordered. Johnson v. Minneapolis Park and Rec.
Bd., #12-2419, 2013 U.S. App. Lexis 18831 (8th Cir.).
A city's legitimate interests in alleviating
congestion, improving circulation, promoting the aesthetics of its public
parks, and making sure that the parks were available to the public for a wide
range of activities justified regulations on vending in the parks that were
challenged by visual artists who sold their art in the public parks and on
sidewalks. The regulations were valid time, place, and manner restrictions and
were narrowly tailored to promote the interests in question. Lederman v. N.Y.C.
Dep't of Parks & Recreation, #12-4333, 2013 U.S. App. Lexis 19575 (2nd
Cir.).
A Michigan state anti-begging statute under which
two homeless adults were arrested violated the First Amendment. The statute was
facially invalid since begging was a form of solicitation protected by the
First Amendment and the law prohibited a substantial amount of solicitation by
beggars but allowed other solicitation based on its content. One arrestee had
been holding signs saying "Cold and Hungry, God Bless" and "Need
Job, God Bless." The second arrestee, a veteran who needed money for bus
fare, asked another person on the street whether they could "spare a
little change." While there was a substantial state interest in preventing
duress and fraud, the law was not narrowly tailored to serve those interests.
Speet v. Schuette, #12-2213, 2013 U.S. App. Lexis 16796, 2013 Fed App. 0226P
(6th Cir.).
A street newspaper devoted to educating people
about homelessness, which used homeless people as street vendors, challenged an
ordinance that two of its vendors were cited for violating that barred using
any part of the city street, alley, sidewalk, or public right of way to sell
any goods or materials. The city altered the ordinance so that it did not bar
the sale or distribution of publications or handbills. Under the revised
ordinance, those activities were prohibited, however, on any portion of the
street. The revised ordinance also barred handing such materials to an occupant
of a motor vehicle on the street or taking action reasonably intended to cause
a vehicle occupant to hand anything to the person selling or distributing the
materials. The federal appeals court upheld a determination that the ordinance,
as revised, did not violate the First Amendment and left open adequate
available alternative channels of communication. The Contributor v. City of
Brentwood, #12-6598, 2013 U.S. App. Lexis 16795, 2013 Fed App. 0225P (6th
Cir.).
When then President Bush spoke at a fundraising
dinner at a mayor's residence, demonstrators protesting his appearance were
required to go to at area 150 yards away, while a group of demonstrating
supporters of the President were permitted to stay on private property directly
across from the mayor's house. A federal appeals court granted the defendant
law enforcement personnel qualified immunity on claims that their actions
violated the First Amendment. Each defendant was aware of the disparate
treatment to which the protesters were subjected, but this evidence was
insufficient as a matter of law to show that any of them promulgated the
policies at issue or acted for a discriminatory purpose. Each defendant's
actions were consistent with his own agency's facially viewpoint-neutral
policy. Pahls v. Thomas, #11-2055, 2013 U.S. App. Lexis 11174 (10th Cir.).
A photojournalist sued police officers who arrested him
for taking their pictures arresting a man while on duty. The U.S. Department of
Justice issued a statement supporting the constitutional rights of the
plaintiff to take the pictures under the First and Fourth Amendments. The
statement upholds citizens’ constitutional rights to record police officers in
their public capacity without being arrested or having their recordings
unlawfully seized. Garcia v. Montgomery County, Maryland, #8:12-cv-03592, U.S.
Dist. Ct. (D. Md. March 4, 2013).
A federal appeals court overturned the
dismissal of a lawsuit claiming that a city's adoption of an ordinance
prohibiting soliciting in certain areas violated the free speech rights of
persons who regularly beg in those areas. The plaintiffs had adequately alleged
that the city had adopted a content-based regulation that was not the least
restrictive means of furthering a compelling government interest. Clatterbuck
v. City of Charlottesville, #12-1149, 2013 U.S. App. Lexis 3651 (4th Cir.).
An Arizona state law made it illegal for a
motorist to hire or attempt to hire a person for work from a stopped car that
impedes traffic or for a person to be hired in this manner. While the city did
have a significant interest in promoting traffic safety, the day labor
provision, largely targeting illegal immigrants imposed restrictions on
constitutionally protected commercial speech that could be viewed as more extensive
than needed to serve that interest. The appeals court upheld a preliminary
injunction against the enforcement of that portion of the statute. Valle del
Sol v. State of Arizona, #12-15688, 2013 U.S. App. Lexis 4425 (9th Cir.).
A motorist adequately alleged that officers arrested
him in retaliation for his First Amendment protected expressive activity after
he was cited for violating a noise ordinance. The officer allegedly told the
motorist that if he cooperated he would get off with a ticket, but that
"if you run your mouth, I will book you in jail for it." When he
later was taken into custody and was being taken to a booking facility, he was
allegedly told that it was because he was playing his music too loud and had
"acted like a fool." The appeals court found that, if true, this
violated his clearly established First Amendment right to be free from action
motivated by retaliation even if probable cause existed for his initial arrest
on the noise violation alone. A reasonable officer would have known that he
could not exercise his discretion to book a person in retaliation for First
Amendment activity. Ford v. City of Yakima, #11-35319, 2013 U.S. App. Lexis
2716 (9th Cir.).
Officers were not liable for violating the rights
of a Hispanic man who was arrested and removed from a city council meeting
where he voiced opposition to the city's proposed agreement with federal
authorities for immigration enforcement in the city. In a prior meeting, he had
called the mayor a "racist pig," and in this meeting, he had called
for his supporters in the audience to rise. He was removed and arrested under a
city ordinance prohibiting "disorderly, insolent, or disruptive"
actions at such official meetings. While the use of the term
"insolent" made the ordinance overbroad, the deletion of the term
would make the ordinance constitutional. At the time of the arrest, the
officers acted in an objectively reasonable manner by believing that the
ordinance was valid and justified his removal. Acosta v. City of Costa Mesa, #10-56854,
694 F.3d 960 (9th Cir. 2012).
Police officers did not violate the First
Amendment rights of demonstrators at the Madison Square Garden 2004 Republican
National Convention by arresting those who failed to comply with orders to move
from an area were demonstrating was prohibited to a designated demonstration
zone. The restriction of protest to the designated zone was content neutral,
and was narrowly tailored to achieve significant governmental interests
concerning sidewalk congestion and convention security. The demonstration zone,
which was equipped with a stage and sound amplification equipment, provided an
adequate alternative channel of expression. Marcavage v. City of New York,
#10-4355, 689 F.3d 98 (2nd Cir. 2012).
Plaintiffs entered into a $30,000 settlement
agreement with a city and police officers on claims arising out of their
arrest. The settlement was offered by the defendants under Federal Rule of
Civil Procedure 68. Subsequently, the trial court awarded a total of $290,997.94
in costs to the plaintiffs under 42 U.S.C. Sec. 1988, including $286,065.00 in
attorneys' fees. The appeals court rejected the argument that the Rule 68 offer
of judgment to settle all claims should have been interpreted to include any
costs, including attorneys' fees, when that was not specified. It also rejected
the argument that the fee award was disproportionate to the success achieved in
the litigation, as the defendants had not preserved that argument for appeal.
Barbour v. City of White Plains, #11-2229, 2012 U.S. App. Lexis 23386 (2nd
Cir.).
A man's website promoting white supremacist ideas
contained the statement that everyone connected with the trial of a white
supremacist "deserved assassination." The website also published
personal information about the foreperson of the jury which convicted that
white supremacist of soliciting harm to a federal judge. The website operator
was convicted, by a jury, of soliciting the commission of violence against that
juror. The trial court set the conviction aside, finding that the speech was
protected by the First Amendment. A federal appeals court reinstated the
conviction, finding that a rational jury could have found, based on the
website's contents and its context, that it was intentionally soliciting for
criminal acts to be committed against the juror. Such criminal solicitation is
not First Amendment protected speech. United States v. White, #11-2150 , 2012
U.S. App. Lexis 22229 (7th Cir.).
A documentary filmmaker, making a film concerning
gang activity, was filming in a public place when a police officer compelled
him to stop. He brought a civil rights lawsuit under a New Jersey state
statute, claiming violations of his First and Fourth Amendment rights, and his
rights under the state Constitution. Reversing the trial court's grant of
qualified immunity to the defendant police officer, an intermediate New Jersey
appellate court found that the defense of qualified immunity applies to the
state statute just as it does to federal civil rights claims, but that it only
applies to claims for money damages, not to claims seeking injunctive relief.
Additionally, applying the qualified immunity defense on summary judgment was
incorrect, since, if the plaintiff's claims were true, the officer may have
violated his right of free speech. Ramos v. Flowers, #A-4910-10T3, 2012 N.J.
Super. Lexis 157 (App Div.).
A man was arrested under a city ordinance
which criminalized the refusal to leave a place when ordered to do so by a
police officer after three or more persons were engaging in disorderly conduct
nearby. A federal appeals court found that the ordinance violated the First
Amendment on its face because it "substantially inhibits protected speech
and is not amenable to clear and uniform enforcement." Additionally, a
section of the ordinance did not clearly specify what inconveniences, if
performed by three or more persons, could trigger an order to disperse, nor
clarify whether dispersal had to be necessary to end the violation. The
ordinance, as it was standardless as to the nature of the annoyance that
triggered the law, could render individuals subject to arbitrary or
discriminatory arrest, making it void for vagueness in violation of due
process. Bell v. Keating, #11-2408, 2012 U.S. App. Lexis 18952 (7th Cir.).
Newspapers had no First Amendment right to obtain
access to sealed court documents used in connection with the issuance of a
search warrant as part of an investigation into financial fraud. There was no
historical record of unrestricted public access to documents filed in search
warrant proceedings. Further, granting public access to such documents would be
detrimental to the search warrant application and process of criminal
investigation, particularly when the magistrate sufficiently stated the
justification for sealing the documents. In re: In the Matter of the Search of
Fair Finance, #10-4139, 2012 U.S. App. Lexis 18627, 2012 Fed. App. 0304P
(6th Cir.).
Members of a group devoted to expressing the belief
that the September 11, 2011 terrorist attacks were "an inside job"
were arrested when they displayed signs with that message on a highway overpass
during rush hour. A federal appeals court ruled that the city ordinance under
which they were arrested, which prohibits conduct, including speech, that has
the consequence of impeding vehicle or pedestrian traffic was facially invalid
under the First Amendment. The court reasoned that the ordinance did not give
fair notice of what conduct was prohibited. It "criminalizes speech if it
has the consequence of obstructing traffic, but the speaker does not know if
his or her speech is criminal until after such an obstruction occurs."
Stahl v. City of St. Louis, #10–3761, (8th Cir.).
A federal appeals court rejected a criminal
defendant's argument that his conviction for impersonating a police officer in
violation of a statute should be overturned because his false speech was
constitutionally protected under the First Amendment. The court ruled that the
Virginia state statute prohibiting pretending to be a police officer was not
facially invalid, since it served a legitimate governmental interest in public
safety. False claims of being an officer could be used for dangerous purposes,
such as boarding an aircraft improperly. In this case, the defendant tried to
use his false claim of being a police officer to try to avoid a speeding
ticket. United States v. Chappell, #10-4746, 2012 U.S. App. Lexis 16990
(4th Cir.).
The interior sidewalks of postal facilities are
not a public forum. A ban on collecting petition signatures on post office
sidewalks not running along public streets does not violate the First
Amendment. Initiative and Referendum Institute v. United States Postal Service,
#10–5337, 2012 U.S. App. Lexis 14347 (D.C. Cir.).
It was not clearly established, at the time of a
2006 arrest, that an arrest supported by probable cause could violate the First
Amendment. The plaintiff was arrested by Secret Service agents protecting Vice
President Dick Cheney after he was overheard saying on his cell phone that he
was going to confront the Vice President and ask him "how many kids he's
killed today." He touched the Vice President's shoulder and made
statements critical of the war in Iraq. The agents were entitled to qualified
immunity as the U.S. Supreme Court stated that it has never held that there is
a First Amendment right to be free of a retaliatory arrest supported by
probable cause, and the plaintiff's action in touching the Vice President
provided probable cause for the arrest for assault. Reichle v. Howards,
#11-262, 2012 U.S. Lexis 4132.
Security guards at a "turbulent" public
school board meeting allegedly pulled an activist from his seat and dragged him
out of the meeting after he refused to leave when asked. He denied being one of
those disrupting the meeting. Once outside, he was arrested by police based on
the security guards' version of the incident. He was acquitted of disturbing
the peace and resisting arrest. The officers were not liable for false arrest
and were properly granted qualified immunity, as they could rely on the
security guards' statements that the man had disrupted the meeting to arrest
him, and were not required to investigate further. The plaintiff also failed to
present a valid First Amendment claim against the school board or its security
guards, as he had not shown that they threw him out on the basis of his remarks
during the public comments portion of the meeting or his past activism. Green
v. Nocciero, #11–2037, 676 F.3d 748 (8th Cir. 2012).
When President Bush was dining at a restaurant
during his 2004 reelection campaign, groups of demonstrators both in favor of
and opposed to his re-election attempted to gather outside. A federal appeals
court has ruled that, if the facts were as alleged, Secret Service agents
violated the First Amendment by forcing protesters opposed to the President to
move further away from the restaurant than where they permitted supporters of
the President to rally. This was enforcement of a content-based restriction.
The agents were not entitled to qualified immunity. The court also found that
state and local police supervisors could not be held liable for the alleged use
of excessive force against the anti-Bush demonstrators, including the use of
pepper spray, clubs, and shoving, since there was no indication that they were
personally involved. Moss v. United States Secret Service, #10-3615, 2012 U.S.
App. Lexis 7077 (9th Cir.).
An Illinois eavesdropping statute violated the
First Amendment to the extent that it could be applied to prohibit the open
audio taping of police officers in public performing their official duties. Any
supposed governmental interest in protecting conversational privacy was not
implicated when officers performing their duties engage in communications audible
to those witnessing the events. In restricting more speech than necessary to
protect legitimate privacy interests, the statute was likely to violate the
free speech and free press guarantees of the First Amendment. An injunction
against enforcement of the statute was therefore ordered. ACLU of Illinois v.
Alvarez, #11-1286, 2012 U.S. App. Lexis 9303 (7th Cir.).
Sheriff's deputies were entitled to qualified
immunity for asking anti-abortion demonstrators to remove the large graphic
signs displaying aborted fetuses they were holding during their roadside
demonstration. Even if the order to do so were found to be an impermissible
content-based violation of First Amendment rights in a public forum, the
deputies did not act in an objectively unreasonable manner in deciding that
they could lawfully make the request in order to shield the public from traffic
hazards potentially arising from the proximity of the signs to the road, and in
order to prevent children from seeing the images displayed. The officers were
ordered to refrain from impermissible content based restrictions on free speech
in the future, but the plaintiff anti-abortion group was not entitled to
attorneys' fees as it was not a prevailing party. Lefemine v. Wideman,
#10-1905, 2012 U.S. App. Lexis 4490 (4th Cir.).
A city's ordinance which outlawed soliciting and
door-to-door canvassing after 6 p.m. violated the First Amendment rights of a
citizens' environmental advocacy group. While the city did have a legitimate
interest in protecting the privacy of its residents in their homes, this was
adequately handled in another ordinance provision which stated that residents
could post a "No Soliciting" sign on their home to avoid being
bothered. The city failed to support its claim that door-to-door activity of
this type promoted crime. The city also failed to show that the ban on
nighttime soliciting was narrowly tailored to support its interest in
minimizing an alleged drain on municipal law enforcement resources.Ohio Citizen
Action v. City of Englewood, #10-3265, 2012 U.S. App. Lexis 1904
(6th Cir.) .
A city failed to justify its policy of excluding
registered sex offenders from its public libraries. The court ruled that the
First Amendment "includes not just a right of free speech, but also a
right to receive information." Since the public libraries constitute a
designated public forum, the burden was on the city to show that the exclusion
policy was narrowly tailored to serve the stated interest of providing safety
for library patrons and left open sufficient alternative avenues of
communication for information. Since the city submitted no evidence in response
to the plaintiff's motion for summary judgment, mistakenly believing that it
had no burden to overcome to defeat his facial challenge to its policy, the
motion was properly granted. The policy was found not to be a valid time,
place, and manner regulation and to violate a fundamental First Amendment
right. Doe v. City of Albuquerque, #10–2102, 2012 U.S. App. Lexis 1169 (10th).
During the 2008 Republican National Convention in
St. Paul, Minnesota, a police commander ordered that no one be permitted to
enter the downtown area during a time when large crowds of protestors and
widespread vandalism had been encountered. A large group of people attempted to
ignore the order, and allegedly responded to the officers blocking their path
by throwing feces and rocks at them. The officers made arrests and used
non-lethal force to subdue the protestors. A federal appeals court ruled that
the arrests were reasonable, including arrests of those who were not themselves
using violence, but were swept up as part of the crowd. The officers also used
reasonable force under the circumstances. "What is reasonable in the
context of a potential large-scale urban riot may be different from what is
reasonable" otherwise. Bernini v. City of St. Paul, #10–3552, 2012 U.S.
App. Lexis 781 (8th Cir.).
A city mayor violated a Hispanic protester's
First Amendment rights by refusing to let him speak during the comments portion
of the city council meeting unless he first apologized to a city community
liaison officer for getting "in her face" during an earlier protest.
Even assuming that his words at the earlier rally had been threatening, there
was nothing to indicate that his intended speech at the council meeting would
be similarly threatening. The mayor's action was not content neutral, and
therefore was not merely an acceptable time, place, and manner regulation.
The mayor also violated another protester's First Amendment rights by imposing
a $1,500 permit fee for her planned rally against a city ordinance allowing the
impounding of cars driven by motorists without driver's licenses or car
insurance. The fee imposed was based on the cost of assigning officers to
patrol her protest. The court found that he would have assigned fewer officers
and charged a smaller fee for a rally in support of the city's ordinance, and
basing the size of the fee on the content of the speech is impermissible.
Surita v. Hyde, #09-1165, 2011 U.S. App. Lexis 25558 (7th Cir.).
An ordinance prohibiting posting of private signs
on trees, sign posts, street lights, and utility poles on public property was
not a violation of political candidates' First Amendment rights. The ordinance
was narrowly designed to serve legitimate aesthetic and traffic safety
interests of local government, was content neutral, and left open ample
alternative avenues for political candidates to express their views. Johnson v.
City & Co. of Philadelphia, #10–4185, 2011 U.S. App. Lexis 25812 (3rd
Cir.).
An officer arrived at the home to investigate
complaints that a woman and her parents had taken unauthorized control of an
elderly woman's property and care there. The officer confronts a caretaking
woman outside the home, and asked her about the location of the elderly woman.
When she refused to answer his question, and attempted to flee inside the
house, he placed her under arrest for obstruction, grabbed her arm, and
handcuffed her after a struggle. A federal appeals court rejects First
Amendment and Fifth Amendment claims, ruling that there was no clearly
established law that the woman had a right to refuse to answer the officer's
questions during a Terry investigative stop. The officer was entitled to qualified
immunity, as he could reasonably, under these circumstances, believe that her
refusal to answer his question amounted to obstruction. The court also rejected
a claim that the officer handcuffed the woman too tightly, finding that any
injury was de minimis (minimal). Koch v. City of Del
City, #10-6105, 660 F.3d 1228 (10th Cir. 2011).
The District of Columbia did not violate the
First Amendment rights of anti-abortion protestors by threatening them with
prosecution under a statute prohibiting the defacement of public and private
property when they wanted to use chalk to write their message on the street in
front of the White House. They had other adequate avenues through which they
could communicate their message, and were allowed to conduct an assembly and
protest. The District had a strong interest in controlling the aesthetic
appearance of the street in front of the White House, which the threat of
prosecution for chalking was narrowly tailored to serve. Mahoney v. Doe,
#09-7131, 642 F.3d 1112 (D.C. Cir. 2011).
A city ordinance that prohibits standing on the
street to solicit contributions, business or employment from motorists violates
the First Amendment by regulating "significantly more speech than is
necessary to achieve the City's purpose of improving traffic safety and traffic
flow at two major intersections. The court found that the city could have
achieved these goals through less restrictive measures, such as the enforcement
of existing traffic rules. The challenge was filed by day laborer
organizations. A prior case upholding the constitutionality of a similar
ordinance in another municipality, ACORN v. City of Phoenix, #85-1810, 798 F.2d
1260 (9th Cir. 1986), was overruled. Comite de Jornaleros v. City of Redondo
Beach, #06-55750, 2011 U.S. App. Lexis 19212 (9th Cir.).
A city ordinance outlawing standing within a
hundred feet of an abortion clinic entrance to attempt to talk to a person
seeking to enter was constitutional on its face, and was modeled after the law
upheld by the U.S. Supreme Court in Hill v. Colorado, #98-1856, 530 U.S. 703
(2000). A minister who regularly stood outside such clinics seeking to engage
in "friendly conversation" to persuade patients not to enter
challenged the law, however, arguing that the city failed to enforce it against
persons standing there to encourage patients to enter. This would amount to
unconstitutional suppression of speech on the basis of its content, in
violation of the First Amendment. The appeals court ordered the trial
court to fashion a remedy "that ensures that Oakland will adopt and
henceforth apply a policy that enforces the Ordinance as written, that is, in
an evenhanded, constitutional manner." Hoye v. City of
Oakland, #09-16753, 2011 U.S. App. Lexis 15541 (9th Cir.).
A man was exercising clearly established First
Amendment rights in standing ten feet away from officers and using a cell
phone's video recorder with an audio microphone to record their activities,
based on his concern that they were using excessive force on an arrestee in a
public place. The officer was not entitled to qualified immunity on the man's
false arrest lawsuit, despite his argument that the videotaping, by recording
audio without consent of all parties to a conversation, violated a state
wiretapping statute. The wiretapping statute aimed at clandestine recording,
and the officers admitted that the arrestee was open about the fact that he was
recording them. Glik v. Cunniffe, #10-1764, 2011 U.S. App. Lexis 17841 (1st
Cir.).
The U.S. Supreme Court ruled that a California
state law prohibiting the rental or sale of violent video games to minors
violates the First Amendment. Brown v. Entertainment Merchants Assn., #08–1448,
2011 U.S. Lexis 4802.
A member of a "flash mob" who was
arrested for failing to obey orders to stop dancing at the Jefferson Memorial
in D.C. failed to show that her arrest violated her First Amendment rights.
Expressive dancing of the type she was engaged in was properly included in the
list of activities that could be prohibited by the reasonable regulations that
govern the Jefferson Memorial, a nonpublic forum reserved for the tranquil
commemoration of President Thomas Jefferson's legacy. Oberwetter v. Hilliard,
#10-5078, 2011 U.S. App. Lexis 9923 (D.C. Cir.).
An arrestee filed a federal civil rights lawsuit
concerning his arrest and pepper spraying. While that lawsuit was pending, he
picketed police headquarters with signs stating that an officer was
"dirty" and a "liar." This resulted in him being charged
with criminal libel, and he sought to sue the charging officer, claiming that
the charges were retaliatory for his exercise of his First Amendment rights. He
had, however, subsequently settled the original lawsuit, and a federal appeals
court found that the settlement agreement also covered the claims made in his
second lawsuit. The plaintiff argued that his claim arising from the picketing
incident did not accrue until after the charges concerning it were dismissed,
but the court stated that, unlike a malicious prosecution claim, a" First
Amendment retaliatory-prosecution claim does not require a favorable
termination of the underlying action." Mata v. Anderson, # 10-2031, 635
F.3d 1250 (10th Cir. 2011).
A federal appeals court has upheld the
constitutionality of a municipal ordinance that limits the number of feedings
of large groups that any person or organization can sponsor in parks within a
two-mile radius of City Hall. The court rejected the argument of an
organization calling itself "Food Not Bombs" that it had a First
Amendment right to feed large groups of homeless people in any park as often as
it likes. The court found that the ordinance was a reasonable time, place, and
manner regulation, assuming, for purposes of argument, without deciding, that
such feedings were expressive activity. First Vagabonds Church of God v. City
of Orlando, #08-16788, 638 F.3d 756 (11th Cir. 2011).
The trial court properly granted judgment as a
matter of law to a county council chairperson on a First Amendment claim asserted
by a man ousted from a council meeting when he insisted on speaking to raise an
objection while the council was considering a new ordinance. Council rules
allowed members of the public to speak only during a designated public comment
segment of the meeting, and it did not violate the First Amendment to oust a
member of the public from the meeting for failing to obey the rules. There was
no evidence to support the claim that the ouster was based on the plaintiff's
viewpoint or personal animus, Galena v. Leone, #10-1914, 2011 U.S. App. Lexis
7562 (3rd Cir.).
After a deputy stopped her husband's car, in
which she was a passenger, and ticketed him for failing to dim its high beam
lights, a woman called 911 to express her fears of the deputy, who she described
as "shaking, agitated, and nervous," and requested that other
officers meet the couple at a local gas station, because the deputy had
activated his lights and siren and was following them. She had criticized him
during the stop and been told to "shut up." At the gas station, the
deputy instructed another officer to arrest the woman for obstructing an
officer without violence. The other officer did so, grabbing her arm as she
climbed out of the vehicle, dragging her to his patrol car, pushing her against
the hood to handcuff her, and then shoving her inside. A federal appeals court
found that the deputy did not have probable cause to order the woman's arrest
under these circumstances. Her criticisms of the deputy during and after the
traffic stop, even if distracting did not incite others against, interfere
with, or impede the deputy from citing her husband for his traffic infraction.
DeRosa v. Sheriff of Collier County, Florida, #10-14046, 2011 U.S. App. Lexis
4057 (Unpub. 11th Cir.).
A man visiting a shopping center observed Vice
President Dick Cheney exit from a grocery store, and stated into his cell
phone, to a person he was talking to, "I'm going to ask him how many kids
he's killed today." A Secret Service agent, hearing this, placed the man under
surveillance. The man later talked to the Vice President, telling him that his
policies in Iraq "are disgusting," to which Cheney replied
"Thank you." Departing, the man touched Cheney's right shoulder with
his open hand. When he later again returned to the area where the Vice
President was speaking with crowd members, a Secret Service agent asked him
whether he had assaulted or touched the Vice President, and placed him under
arrest when he said he had not. The agent had probable cause to arrest the man
for making a false statement that he had not touched the Vice President. The
arrestee did, however, establish a possible claim for First Amendment
retaliation by several of the agents, who may have acted against him on the
basis of his opinion about the Iraq war. Further proceedings were ordered on
that claim. Howards v. McLaughlin, #09-1201, 634 F.3d 1131 (10th Cir. 2011).
In a case where city police officers made a mass
arrest of hundreds of anti-war demonstrators engaged in a demonstration against
the beginning of the war against Iraq, police officials were improperly granted
qualified immunity. The demonstration, while initially commenced without a
proper permit, was allowed to proceed down a number of streets before being
blocked from proceeding further. The record failed to establish that those
arrested were given adequate notice that permission for the demonstration had
been revoked or an opportunity to disperse before facing arrest. The lawsuit
claimed that the city's police superintendent was the city's policymaker as to
the making of mass arrests, and had authorized the arrests in this case. Vodak
v. City of Chicago, #09-2768, 2011 U.S. App. Lexis 5327 (7th Cir.).
Members of a church who demonstrated near the
funeral of a dead U.S. soldier killed in combat had a protected First Amendment
right to express their message that God was punishing the U.S. for tolerating
homosexuality by the death of soldiers. The U.S. Supreme Court ruled that the
church's message was on an issue of public concern, so that a jury verdict for
the soldier's father against the church of $2.9 million in compensatory damages
and $8 million in punitive damages (reduced by the trial court to $2.1 million
in punitive damages) for emotional distress and intrusion into seclusion was
improper. Additionally, the protest took place on public land adjacent to a
public street and in compliance with local law enforcement's instructions that
demonstrators remain 1,000 feet away from the church where the funeral services
were held. Snyder v. Phelps, #09-751, 2011 U.S. Lexis 1903.
A federal appeals court upheld a public
university's enforcement of a free speech policy regulating the time, place,
and manner of on-campus speech by non-students. It found that the policy was
narrowly tailored to serve the school's significant interest in requiring the
obtaining of an advance permit, limiting the time and locations of such speech,
and obtaining personal information concerning those coming on campus for
expressive activity. In granting rehearing in part, the appeals court ruled,
however, that the provisions of the policy concerning the security fees that
could be imposed on such speakers was facially invalid because it allowed for
too much discretion as to when to impose such fees. Sonnier v. Crain,
#09-30186, 613 F.3d 436 (5th Cir.), rehearing granted in part and denied in
part, 2011 U.S. App. Lexis 3494 (5th Cir.).
An earlier version of a city ordinance that
restricted vending at a beach boardwalk but made exceptions for the sale of
merchandise with an "inextricably intertwined" religious, political,
philosophical, or ideological message was unconstitutionally vague, but an
amended version of the law, containing clear definitions was not vague and did
not violate the First Amendment. Hunt v. Los Angeles, #09-55750, 2011 U.S. App.
Lexis 5721 (9th Cir.).
An officer who arrested a man for disorderly
conduct after he called the officer an "SOB" and a "flat
slob" was not entitled to qualified immunity from a federal civil rights
claim. The arrestee's voice may not have been loud enough to be unreasonable,
and the officer's decision to arrest him may have been motivated by retaliation
against the arrestee for exercising his First Amendment rights. Kennedy v. City
of Villa Hills, #09-6442, 2011 U.S. App. Lexis 5985 (6th Cir.).
Rejecting a "street preacher's" claim
that an officer's enforcement of a noise control ordinance against him violated
his First Amendment rights, a federal appeals court ruled that the ordinance
did not substantially burden more speech than needed to serve the city's goal
of banning excessive noise. The plaintiff's voice could be heard over 350 feet
away, and "dominated" the area, infringing on the right of others to
use the neighborhood without such intrusion. Costello v. City of Burlington,
#08-0551, 2011 U.S. App. Lexis 2831 (2nd Cir.).
Two anti-abortion protesters sued a city and
various officials, claiming that two ordinances related to public assemblies
and picketing violated their free speech rights. The court held that the
lawsuit should be dismissed because the plaintiffs could not show that the
ordinances caused them an actual injury. The plaintiffs sought a permit to hold
a "Roe v. Wade Memorial" event, but were informed that the event
planned was viewed by the city as a "demonstration" or picket, and
could be held at the park as a matter of right with no permit, so no permit
would be issued. The event was held as planned, and no arrests were made.
Benham v. City of Charlotte, #10-1132 2011 U.S. App. Lexis 2890 (4th Cir.).
Utah state authorities gave permission to the
Utah Highway Patrol Association to erect a number of 12-foot crosses on public
land in memory of fallen troopers who died in the line of duty. An atheist
group, joined by other organizations, objected, and filed suit, claiming that
this violated the clause of the First Amendment prohibiting an
"establishment of religion." A federal appeals court ruled that state
employees were improperly granted summary judgment on this claim. While there
was a "plausible" secular purpose of honoring the dead troopers,
erecting crosses to do so resulted in an unacceptable effect, in that
reasonable observers could believe that it meant that the state endorsed a
specific religion. American Atheists, Inc. v. Duncan, #08-4061, 2010 U.S. App.
Lexis 26936, amended 2010 U.S. App. Lexis 26725 (10th Cir.).
The owner of a local weekly newspaper filed a
defamation and First Amendment retaliation lawsuit in federal court claiming
that a city mayor took action against him because of his publication of
material critical of the town's alleged corruption, fiscal mismanagement, and
police brutality. Upholding the dismissal of the lawsuit, a federal appeals
court ruled that state law defamation was not actionable in federal court and
that the plaintiff had failed to show that the mayor's criticism of him at a
campaign event as a "convicted drug dealer," "Albanian
mobster," "thug," and person planning to open "drug
dens" and "strip clubs" if the mayor was not re-elected, even if
false, did not "actually chill" the newspaper's exercise of its
rights as required for a First Amendment retaliation claim against a public
official. Zherka v. Amicone, #10-37, 2011 U.S. App. Lexis 3944 (2nd Cir.).
An adult bookstore challenged a city ordinance
requiring the dispersal of adult businesses. The trial court erroneously
granted summary judgment to the plaintiffs on the issue of whether they had
presented "actual and convincing" evidence that cast "doubt"
on the city's purported rationale for the ordinance, combating the effects of
concentrations of adult businesses on crime in the surrounding areas. Alameda
Books v. City of Los Angeles, #09-55367, 2011 U.S. App. Lexis 1769 (9th Cir.).
A Florida county ordinance aimed at
regulating sexually-oriented businesses through zoning and prohibitions on
public nudity was reasonably designed to reduce negative secondary effects
associated with such businesses, and was not a violation of the First Amendment
rights of the business owners. Peek-a-Boo Lounge of Bradenton, Inc. v. Manatee
Cty., #09-16438, 2011 U.S. App. Lexis 1191 (11th Cir.).
A man ejected from a city council meeting and
arrested after he gave a silent Nazi salute sued the city for violating his
First Amendment rights. On the eve of trial on his claim, the trial court,
acting on its own, granted summary judgment to city officials, finding that
they were entitled to qualified immunity. Reversing, a federal appeals court
held that the plaintiff should have been given adequate notice and a chance to
respond before summary judgment was granted. Norse v. Santa Cruz, #07-15814,
2010 U.S. App. Lexis 25502 (9th Cir.).
An African-American Muslim
woman and her three minor daughters sued the county, its child welfare agency,
and several agency employees for actions taken in the course of a child abuse
and neglect investigation. They claimed that abuse and neglect accusations were
fabricated, that false information about them was released to the media, and
that the defendants acted with racial and religious animus and retaliatory
intent intended to "intimidate and silence" them from complaining, in
violation of their First Amendment rights. After the woman's teenage son
intimated that he suffered physical abuse at home, an investigation resulted in
the removal of the three daughters from the home on accusations that the mother
neglected their educational needs. A year later, the mother was exonerated, and
the complaint was dismissed. A federal appeals court found that claims against
two supervisory officials in the defendant agency were properly rejected as
there was no evidence that they either encouraged or condoned the allegedly
illegal actions of their subordinate, a defendant caseworker. The court also
found no evidence that there had been any intent to "intimidate and
silence" the plaintiffs from exercising their First Amendment rights.
Abdulsalaam v. Franklin County Board of Commissioners, #09-4018, 2010 U.S. App.
Lexis 21334 (Unpub. 6th Cir.).
Multiple injunctions against a man restricting
his conduct towards the mayor and city council were properly granted when he
arguably made credible threats of violence towards a city employee, making
reference to an incident in another city where an angry man shot and killed five
people at a city hall, and questioning whether such action was necessary to get
his complaints listened to. While the man had engaged in some protected conduct
in the past, such as attending city council meetings and speaking during public
comment times, his threat of violence was not protected speech, and could be
the basis for an injunction. City of San Jose v. Garbett, #H034424, 2010 Cal.
App. Lexis 2003 (Cal.App.).
A woman who participated in an animal rights
protest outside a city-owned arena where a circus was performing claimed that
police officers improperly pushed her and other demonstrators 100 feet from the
arena entrance, preventing them from communicating with entering circus patrons
or having their signs read. Some demonstrators were then arrested, but not the
woman or two others who had purchased tickets to the circus. The city
subsequently took the position that future protests should stay 80 feet from
the arena entrance. Ordering further proceedings in the woman's free speech
lawsuit against the city, a federal appeals court found that the trial court
failed to examine in sufficient detail the necessary balance between free
speech and the city's interests, creating a "sparse" record. Zalaski
v. City of Bridgeport Police Dept., #08-3671, 2010 U.S. App. Lexis 15307 (2nd
Cir.).
The rules of a large regional shopping mall banning
peaceful, consensual, spontaneous conversations between strangers in common
areas of the mall about topics unrelated to the activities of the mall, its
tenants or the noncommercial sponsored activities of the mall or its tenants
violated free speech rights guaranteed by the California state constitution.
The appeals court reversed summary judgment for the defendants in a lawsuit
brought by a plaintiff who sought to approach young women at the mall and ask
them to talk to him about Jesus. Snatchko v. Westfield LLC, #C059985, 2010 Cal.
App. Lexis 1556 (Cal.App.).
Officers' use of tasers against protestor
arrestees who had chained themselves to a several-hundred-pound barrel drum and
refused to free themselves was objectively reasonable even though their arrest
was for relatively minor crimes of trespass and resisting arrest. The
plaintiffs admitted that officers at the scene considered and attempted several
alternate means of removing them from the property before resorting to use of
their tasers, that the officers expressly warned them that they would be tased
and that it would be painful, and that the officers gave them another
opportunity to release themselves from the barrel after this warning. Finally,
both plaintiffs were given opportunities again to release themselves from the
barrel prior to the subsequent uses of the tasers. Crowell v. Kirkpatrick,
#09-4100, 2010 U.S. App. Lexis 23518 (Unpub.2nd Cir.).
A political action committee was opposed to
increased municipal taxes and spending, and involved in building opposition to
the City Council's authority to implement an automated photo-monitoring program
to enforce traffic regulations. The group and one of its members sued the City
of Cincinnati, contending that a regulation governing access to the interior
spaces of city hall violated their First Amendment rights to express their
opinions and was void for vagueness. Upholding a trial court's preliminary
injunction against the regulation, a federal appeals court agreed that the
plaintiffs had shown that there was a substantial likelihood that they would
prevail on the merits of their claims. The group had twice tried and failed to
gain access to the interior stairs and the lobby of city hall to hold a press
conference and rally advocating its views. The city barred most private
business enterprises or solicitations in city buildings, while providing for
exceptions with specific approval when judged to be "in the public
interest," such as the United Way campaign. As a practice, the city only
approved activities inside city buildings that had a sponsor such as a city
department or council member. In this manner, the city had allowed, inside city
hall, rallies by a group supporting increased taxes for local schools, and for
a group urging a local newspaper to stop accepting ads for adult entertainment.
The regulation gave city departments and officials complete discretion as to
whether a proposed rally or display in city hall would be in the "public
interest," and requires groups to collaborate with public officials in
order to avail themselves of the opportunity to conduct expressive activities
inside city hall, the court found. Miller v. City of Cincinnati, #08-4679, 2010
U.S. App. Lexis 19820 (6th Cir.).
A federal appeals court has ruled that a city's
attempt to totally ban tattoo parlors violated the First Amendment. The court
concluded that “the tattoo itself, the process of tattooing, and even the business
of tattooing are … purely expressive activity fully protected by the First
Amendment.” The court also ruled that a total ban was not a reasonable time,
place, or manner regulation "because it is substantially broader than
necessary to achieve the city's significant health and safety interests and
because it entirely forecloses a unique and important method of
expression." Anderson v. City of Hermosa Beach, #08-56914, 2010 U.S. App.
Lexis 18838 (9th Cir.). Editor's Note: a good number of prior court decisions have
upheld such bans against First Amendment challenges. The court in Anderson
cited six such prior cases, two from federal trial courts, and four from state
appellate courts, while stating that "we respectfully disagree."
Two organizations that organize marches on city
streets for various political or social causes challenged the constitutionality
of an ordinance under which the city imposes fees on such marches or parades
for the purpose of paying for cleanup and traffic control expenses. A federal
appeals court, rejecting a First Amendment challenge to the imposition of such
fees, found that the city's subsidy for certain parades, such as Martin Luther
King Day and Veteran's Day, by waiving such fees, was not impermissible
viewpoint discrimination. Such waivers were provided to events with a
"broad appeal, historic tradition, cultural significance, and [provision
of] other public benefits.” International Women's Day March Planning Comm. v.
San Antonio, #09-50692, 2010 U.S. App. Lexis 18781 (5th Cir.).
A federal appeals court has struck down as
unconstitutional and violative of the First Amendment two Oregon statutes
criminalizing giving sexually explicit material to minors. The intent of the
statutes as written was to prohibit adult sexual predators from engaging in the
practices of "luring" and "grooming" minors, exposing them
to sexually explicit materials to attempt to have sex with them. As written,
however, the statutes could apply to the sale of a book to a minor by an
ordinary bookstore, even though the store clerk had little or no knowledge of
the contents of the book, and there was no intent or attempt to have sex with
the minor. Powell Books v. Kroger, #09-35153, 2010 U.S. App. Lexis 19520 (9th
Cir.).
A business owner's request to a city councilman
for help with difficulties he was having operating his business constituted a
"petition" for redress of grievances for purposes of the First
Amendment, although it was oral rather than written. The business operated a fleet
of motorized three-wheel rickshaws as a taxi service for visitors to the city's
downtown area. The plaintiff presented evidence that, if true, would support a
claim that he was subjected to unlawful retaliatory harassment for exercising
their First Amendment rights. A police sergeant was not entitled to qualified
immunity because a reasonable officer would have known that her alleged actions
of refusing to issue the business permits or allow its rickshaws to pick up
passengers at a downtown premier event venue were unlawful, when she allegedly
did them because of her displeasure in the business going over her head to seek
help from the city councilman. Holzemer v. City of Memphis, # 09-5086, 2010
U.S. App. Lexis 19226 (6th Cir.).
A police chief was not entitled to summary
judgment in a false arrest lawsuit filed by a man taken into custody for
allegedly interfering with official police conduct. The record in the case
showed that the arrestee cursed at and "distracted" the police chief,
whose car was blocking access to his business. This conduct did indicate that
the arrestee intended to prevent the chief from completing the traffic stop he
was engaged in. Additionally, purely expressive conduct, even if distracting,
is protected under the First Amendment. There was also sufficient evidence to
support claims against the chief for excessive use of force. Municipal
liability claims were rejected, however, as the chief was not a final
policymaker for the city. Copeland v. Locke, #09-2485, 2010 U.S. App. Lexis
15762 (8th Cir.).
Two persons were arrested for disorderly
conducted while they handed out anti-war leaflets near a military recruiting
booth at a festival in downtown Chicago when they allegedly did not obey a
police order to disperse. They reached a settlement with the city on false
arrest claims and then challenged the city's disorderly conduct ordinance,
claiming that it violated their First and Fourth Amendment rights. The trial
court enjoined the enforcement of the failure to disperse provision of the ordinance,
ruling that it imposed an harsh burden on protected free speech and was
unconstitutionally vague. A federal appeals court vacated the injunction,
finding that the plaintiffs did not have standing to challenge the validity of
the ordinance on its face. The failure to disperse provision of the disorderly
conduct ordinance was "not even arguably" violated by their
demonstration against military recruiting, as it was designed to be applied to
plainly disorderly and criminal conduct, such as throwing things at police. The
plaintiffs also could not show they faced a reasonable possibility of being
arrested in the future for violating the same provision of the ordinance. They
also could not establish that there was a pattern of the ordinance being used to
stifle free speech. Goldhamer v. Nagode, #09-2332, 2010 U.S. App. Lexis 18325
(7th Cir.).
In a lawsuit challenging National Park Service
regulations making it unlawful to engage in "expressive" activities
in any of the 301 national parks without a permit issued by a park official,
the defendant was not entitled to summary judgment. The regulations in their
current form violated "core First Amendment" principles as such
restrictions on speech in a public forum like the parks are only lawful if
"narrowly tailored" to serve legitimate governmental interests. The
plaintiff and his associates wanted to distribute free tracts discussing the
"Gospel of Jesus Christ" in a free speech area of Mount Rushmore but
they were stopped by a park ranger because they lacked a permit. He requested a
permit later by phone, but never received a permit or even an application.
"Requiring individuals and small groups to obtain permits before engaging
in expressive activities within designated “free speech areas” (and other public
forums within national parks) violates the First Amendment." Boardley v.
U.S. Dep't of the Interior, #09-5176, 2010 U.S. App. Lexis 16302 (D.C. Cir.).
A student was subjected to a ten-day suspension
from school after he wrote a slogan on the back of his hands supporting a
former student who was accused of shooting a police officer. The student sued,
seeking a judicial declaration that the school's actions violated his First
Amendment rights, and the expungement of his suspension, as well as damages and
attorneys' fees. A federal court rejected this claim. Even if the student acted
in a peaceful and passive manner in displaying the slogan, his actions took
place within a context of hostility and intimidation. School authorities could
reasonably believe that his actions might contribute to disturbances already
going on because of gang activity and the same slogan, even if no individual
had felt threatened by his actions. Allowing the student to display the slogan
might have increased the fear and tension already expressed by some students
and parents over the slogan, so the school could properly prohibit its display.
Brown v. Cabell County Board of Education, #3:09-0279, 2010 U.S. Dist. Lexis
53200 (S.D.W.Va.).
A woman claimed that her arrest and prosecution
for obstructing police officers who were arresting her son violated her First
Amendment rights. The trial court found that the ordinance, which criminalized
obstructing or resisting officers, was facially overbroad, and enjoined its
enforcement. Reversing, a federal appeals court found that the ordinance's use
of the words "obstruct" and "resist" only covered physical
acts or "fighting words," and did not give officers unfettered
discretion to arrest persons merely for engaging in speech that was critical or
annoyed them. McDermott v. Royal, #09-3167, 2010 U.S. App. Lexis 15766 (8th
Cir.).
The leader of an anti-abortion demonstration in
front of the Liberty Bell Center in Independence National Historical Park was
arrested by a park ranger when he refused orders to move to a nearby location
away from the sidewalk. While there is a legitimate interest in maintaining
public order, these actions violated the First Amendment, so the conviction was
overturned. The sidewalk was a traditional public forum, and the ranger's
actions were based on the content of the protestor's speech. U.S.A. v.
Marcavage, #09-3573, 2010 U.S. App. Lexis 12271 (3rd Cir.).
A federal appeals court has reversed a summary
judgment and injunctions in favor of a constitutional challenge to the City of
Los Angeles Freeway Facing Sign and Supergraphic and Off-Site Sign ordinances.
The Freeway Facing Sign ordinance bans freeway-facing billboards, with some
exceptions, such as near a sports and entertainment complex known as the
Staples Center. Supergraphic billboards are large format signs projected onto
or hung from building walls, and off-site billboards are signs directing
attention to a business or product not located on the same premises as the
sign. These are also generally restricted, with some exceptions. The federal
appeals court, rejecting a First Amendment challenge to the ordinances, and the
city's asserted interests in traffic safety and the flow of traffic, found that
the fact that limited exceptions to the ordinances were allowed did not
undermine the merits or legitimacy of the city's asserted interests. World Wide
Rush, LLC v. Los Angeles, #08-56454, 2010 U.S. App. Lexis 10797 (9th Cir.).
Two women protested against the war in Iraq at a
2004 Republican campaign rally for President Bush. They were arrested for
trespass and subjected to strip and body cavity searches at the county jail.
They sued federal, state, and county law enforcement officers, claiming
violations of their First and Fourth Amendment rights. A jury awarded them
$750,000 on the unreasonable search claims, but the trial judge found that
excessive, and a second jury, after a new trial, awarded $55,804 in damages. On
appeal, the court found that, under the totality of the circumstances, there had
been probable cause for the arrest of the plaintiffs for resisting a federal
agent providing protection for the President. The appeals court also agreed
that the amount awarded by the first jury on the search claim had been
excessive, but found that the trial court had erroneously ordered the
plaintiffs to either accept a 90% reduction to $75,000 or undergo a new trial
on damages. The trial court used prior cases, including a 1978 strip search
award for $75,000 for comparison, but made no adjustment for inflation. After a
new reduced amount is calculated, making such an adjustment for inflation, the
plaintiffs may either accept that amount or undergo a third trial on damages.
They were entitled to attorneys' fees for a percentage of the time spent on the
first trial and for all of the work done on the second trial. McCabe v. Parker,
#09-1185, 2010 U.S. App. Lexis 13327 (8th Cir.).
By 6-3, the U.S. Supreme Court rejected a First
Amendment challenge to a federal statute which criminalizes providing
"material aid" to designated foreign terrorist organizations even
when the aid provided is purportedly aimed at facilitating training for
peacefully resolving conflicts or asserting human rights claims. “At bottom,”
Chief Justice Roberts wrote for the majority, “plaintiffs simply disagree with
the considered judgment of Congress and the executive that providing material
support to a designated foreign terrorist organization — even seemingly benign
support — bolsters the terrorist activities of that organization.” Holder v.
Humanitarian Law Project, #08-1498, 2010 U.S. Lexis 5252.
Final approval has been given to a $13.7 million
settlement in a lawsuit against the District of Columbia by persons subjected
to mass arrests while demonstrating during a protest in 2000 near the World
Bank and International Monetary Fund buildings. The lawsuit, according to the
trial judge, became the basis for a 2004 revised D.C. law setting forth
policies for officers to follow in responding to demonstrations, including a
prohibition on officers encircling protestors in the absence of probable cause
to arrest them. Each of 464 arrestees found eligible for the settlement will
receive $18,000, as well as expungement of their arrest record. The settlement
also requires additional training for officers on First Amendment issues,
including the handling of demonstrations. The lawsuit contended that the
arrestees were not doing anything illegal at the time of their arrest, but
merely engaging in a peaceful demonstration. The settlement agreement provides
for an award of $3,272,500 in attorneys' fees and costs, which are included in
the total settlement amount. Becker v. Dist. of Columbia, #01-CV-811, U.S.
Dist. Ct. (D.D.C. July 1, 2010). For the plaintiff's memo in support of
preliminary approval of the settlement, click here. For the court's order
granting such approval, click here.
In a lawsuit by protestors arrested at the 2004
Republican National Convention in New York City, a federal appeals court ruled
that the city can keep secret and not disclose 1,800 pages of confidential
Field Reports prepared by undercover officers investigating security threats
before the convention. The trial court erred in finding that the plaintiff's
need for their disclosure outweighed the public's interest in their secrecy.
Release of the documents "could undermine the safety of law enforcement
personnel and would likely undermine the ability of a law enforcement agency to
conduct future investigations." In re the City of New York, #10-0237,
2010 U.S. App. Lexis 11784 (2nd Cir.).
Overturning the issuance of an injunction
against the enforcement of a city ordinance prohibiting the act of standing on
a highway or street for the purpose of asking for business, contributions, or
employment from vehicle occupants, a federal appeals court found no violation
of First Amendment rights, but rather a valid content neutral time, place, or
manner restriction justified by a significant governmental interest in traffic
flow and safety, and narrowly tailored to serve those interests. Comite de
Jornaleros de Redondo Beach v. City of Redondo Beach, #06-55750, 2010 U.S. App.
Lexis 11733 (9th Cir.).
A small group of people gathered in downtown
Minneapolis while the city was hosting a weeklong summer festival. They planned
to protest the "mindless nature" of "consumer culture" by
walking through the downtown area dressed as "zombies," wearing white
powder and fake blood on their faces and ark makeup around their eyes. They
danced down the street, playing music on their IPods, and broadcast
announcements such as "brain cleanup in Aisle 5" by speaking into a
wireless phone handset. Police received an anonymous 911 call complaining about
the group and the noise they were making. Officers asked them to turn down
their music and keep their distance from bystanders. Later, when the group
stopped dancing and gathered on a sidewalk, officers asked them for
identification, and when most of them could not produce any, told them they
were being taken to the police station to be identified and possibly booked for
disorderly conduct. Once there, they were placed in a holding cell, questioned,
and searched. They were also booked on charges of displaying simulated weapons
of mass destruction, a felony offense punishable by ten years imprisonment,
even though it was determined that the bags they were carrying, containing
various electronic equipment, did not contain explosives. They were kept in
custody for two nights and released. A federal appeals court found that the
officers were not entitled to summary judgment on some of the plaintiffs'
claims because they did not have probable cause to arrest the plaintiffs for
disorderly conduct. It was also clearly established the court stated, that a
reasonable officer would have known that there was no probable cause to arrest
the plaintiffs for engaging in protected expressive conduct. Baribeau v.
Minneapolis, #08-3165, 596 F.3d 465 (8th Cir. 2010).
A federal criminal statute that outlawed the
selling of videos depicting cruelty to animals when the underlying conduct was
illegal under applicable state or federal law violated the First Amendment. It
was constitutionally overbroad and regulated expression based on its content,
which made it presumptively invalid. The U.S. Supreme Court declined to carve
out another category of speech as unprotected based on what was depicted and
the nature of the underlying conduct, such as it had created for child
pornography. The Court also rejected the argument that the statute was saved by
a requirement that the banned videos lack “serious religious, political,
scientific, educational, journalistic, historical, or artistic value," as
the First Amendment protects not only speech with such characteristics.
"The First Amendment’s guarantee of free speech does not extend only to
categories of speech that survive an ad hoc balancing of relative costs and
benefits. The First Amendment itself reflects a judgment by the American people
that the benefits of its restrictions on the Government outweigh the costs. Our
Constitution forecloses any attempt to revise that judgment simply on the basis
that some speech is not worth it.” The case itself involved the application of
the statute to videos depicting dog fights. U.S. v. Stevens, #08–769, 2010 U.S.
Lexis 3478.
Protest demonstrators claimed that a police
chief, a deputy chief, a captain, a major, and the police department violated
their First Amendment rights by directing officers to disperse and
"herd" them despite the peaceful nature of their actions, using batons
to beat them, as well as spraying pepper spray, and discharging bean bags,
pepper spray balls, tear gas, and other projectiles, causing them injuries. If
the facts were as the plaintiffs alleged, they sufficiently stated claims for
supervisory liability against all of the individual defendants except the
major, who lacked authority to either give or rescind orders to officers. The
alleged conduct violated clearly established First Amendment rights. Keating v.
City of Miami, #09-10939, 2010 U.S. App. Lexis 4268 (11th Cir.).
Whether or not the Los Angeles airport was a
public forum, a city ordinance prohibiting the solicitation of funds for
immediate receipt there was a reasonable content neutral time, place, and
manner regulation of arguably protected speech. The airport had a legitimate
interest in preventing undue interference with travelers by solicitors seeking
to immediately receive cash donations. The plaintiff religious organization had
adequate alternative means of spreading their message and soliciting funds,
since it was allowed to distribute literature and speak to travelers who wished
to listen, and could even seek financial donations without violating the
ordinance, so long as it didn't ask for the immediate receipt of funds, but
instead distributed self addressed stamped envelopes seeking such donations in
areas of the airport open to the public. International Society for Krishna
Consciousness of Calif. v. Los Angeles, #S164272, 2010 Cal. Lexis 2063.
In a case allegedly involving "sexting"
by underage girls, the sending of nude or provocative sexually oriented
photographs of oneself to others via cell phones or the Internet, a federal
appeals court enjoined the prosecution of the plaintiffs, based on a claim that
the threatened prosecution on felony child pornography charges was in unlawful
retaliation for the plaintiffs' exercise of their First Amendment rights in
refusing to attend an educational meeting on the subject in order to avoid
prosecution. In at least one instance, a parent argued that the photograph sent
by her daughter was not child pornography, since it involved no nudity, while a
prosecutor took the position that it was child pornography because it was posed
in a provocative manner. Coercing attendance to such educational meetings by
threats of prosecution, the court stated, could violate parents' rights to
parental autonomy under the Fourteenth Amendment (including deciding what
lessons concerning morality and gender roles to give their children), and their
children's First Amendment rights against compelled speech. Miller v. Mitchell,
#09-2144, 2010 U.S. App. Lexis 5501 (3rd Cir.).
A police officer, acting on a request by a mall
owner, arrested the plaintiff when he refused, at the mall, to either remove a
shirt displaying a political statement or leave the premises. The arrestee
claimed that this violated his First and Fourth Amendment rights. The
involvement of a police officer to enforce the rights of a private property
owner to oust someone who did not comply with a request such as the removal of
a shirt with a political statement did not make it the action of the town in
attempting to suppress the political statement. Since the arrestee was
repeatedly asked by the mall to either remove the shirt and its message or leave
the premises, he was properly arrested when he refused to do so. Downs v. Town
of Guilderland, #507428, 2010 N.Y. App. Div. Lexis 1419 (3rd Dept. A.D.).
A number of artists claimed that a city ordinance
that barred them from selling reproduced prints of their work in a city square
violated their First Amendment rights. The court found that the city had a
legitimate interest in maintaining the "tout ensemble" (general
effect) of the artists' colony at the city square, which would be adversely
impacted if prints were allowed to be sold in the area. The ordinance was also
narrowly tailored, only covering prints reproduced by mechanical or duplicative
means. There were adequate alternative avenues for the artists to attempt to
reach their audience. Sarre v. New Orleans, Civil Action #05-910, 2009 U.S.
Dist. Lexis 122277 (E.D. La.).
A man protesting outside a cultural center was
informed by the president of the center's board of directors that he could not
bring his protest sign into the building. When the protestor refused to leave
the property, a deputy sheriff arrested him for trespass after first giving him
a warning to leave. The deputy was entitled to qualified immunity, as it was
reasonable for him to believe that the president was authorized to request the
protestor's removal, and he had at least arguable probable cause for the
arrest. Additionally, the officer could reasonably believe that ordering the
man to leave the property was not a violation of his First Amendment rights.
Moran v. Cameron, #09-11074, 2010 U.S. App. Lexis 1459 (Unpub. 11th Cir.).
A private religious boarding school for children
with behavioral and substance abuse problems, six former students, and thirteen
parents of the former students sued Missouri juvenile officials, claiming that
they conspired to raid the school and seize scores of its students. The
purported ringleader of the conspiracy allegedly disliked the school because it
operated, legally, without a license, because he disagreed with its teachings,
and because he believed that it had not acted "very Christ-like."
Juvenile authorities and armed law enforcement officers, numbering 30 persons
in total, arrived at the school and removed 115 of its students, based on ex
parte orders from local juvenile court judges, allegedly obtained by
misrepresentations that the students were in imminent danger of physical harm
and that the school was unwilling to cooperate with juvenile authorities.
Because the information presented was also "stale" the raiding party
lacked orders for dozens of the students that they removed, but they had orders
for about forty children who no longer lived there, as well as for four adults
over whom the juvenile courts lacked jurisdiction. The children were detained
until their parents could pick them up, and parents were then given "stern
letters" telling them to keep their children away from the school.
Juvenile cases involving the children were all dismissed. The defendants were
not entitled to summary judgment on the basis of qualified immunity, as the
constitutional rights violated under the First, Fourth, and Fourteenth
Amendment if the plaintiffs' allegations were true were clearly established.
Heartland Acad. Community Church v. Anderson, #08-3723 2010 U.S. App. Lexis
2619 (8th Cir.).
A group called "Critical Mass" held a
mass bicycle ride on city streets with 150 participants, to promote the
benefits of using bicycles for transportation. Several persons were arrested
for disorderly conduct and parading without a permit. A New York court found
that the parade permit law applied to any group of persons moving on public
streets, including small groups, and was therefore unconstitutionally
overbroad. It placed a burden on more speech and expressive conduct than
required to satisfy legitimate goals of traffic and crowd control.
Additionally, the law gave the police commissioner, acting on behalf of the
city, improperly broad discretion to decide what events needed a permit. The
convictions under the permit law were overturned, while the disorderly conduct
convictions were upheld. People v. Beck, #570357/06, 2010 N.Y. Misc. Lexis 3
(A.D. 1st Dept.). [Note: While this is a criminal case, the principles
announced would also be applicable in a civil lawsuit].
A city was properly granted summary judgment in a
lawsuit claiming that its officers wrongfully interfered with anti-abortion
demonstrators. The court found no evidence that there was a widespread and
persistent practice of using inapplicable statutes against demonstrators to
violate their free speech rights because of the content of their signs. World
Wide Street Preachers Fellowship v. Columbia, #08-31196, 2009 U.S. App. Lexis
27993 (5th Cir.).
A New York City regulation prohibiting "new"
parades on Fifth Avenue, used to reject an anti-war group's permits
applications to march on two sections of that street, did not violate the First
Amendment. The regulation did not discriminate on the basis of subject matter
or viewpoint, but was content neutral, banning "any" new parades,
regardless of what they were about or what viewpoint they expressed.
Furthermore, the city granted the group permission to march, although over a
different route than the one requested. The 100-block ban was narrow enough to
properly serve the city's interest in avoiding noise and congestion.
International Action Ctr. v. New York, No. 07-5739, 2009 U.S. App. Lexis 25180
(2nd Cir.).
A city council ejected an audience member from a
meeting after he gave a silent one-second Nazi salute objecting to the council's
action in cutting off another audience member after his time to speak expired.
He was arrested when he refused to leave. A federal appeals court ruled that
this did not violate the arrestee's First Amendment rights, as he was not
ousted for a permissible expression of his point of view, but rather for
protesting a good faith attempt by the chairperson of the meeting to maintain
order and enforce council rules. Norse v. City of Santa Cruz, No. 07-15814,
2009 U.S. App. Lexis 24123 (9th Cir.).
While a city and its officers did not have
probable cause to believe that all protesters arrested during a demonstration
knew that the protest lacked a required permit, the city need only show that
officers reasonably believed that those arrested were part of a rioting group
of participants in the protest who were damaging property, and, under the
circumstances, it could lawfully carry out a mass arrest without first giving
those arrested an order to disperse and time to comply. "[P]olice
witnesses must only be able to form a reasonable belief that the entire crowd
is acting as a unit and therefore all members of the crowd violated the
law...If police have probable cause to believe that the group they are
arresting is committing or has committed a crime, no more is necessary.
...Requiring a dispersal order in addition to the ordinary probable cause
threshold would be particularly anomalous in a case like this in which officers
have reason to believe that an entire crowd is engaged in or encouraging a
riot.” Further proceedings were still ordered concerning the factual
circumstances surrounding how the plaintiffs were arrested. Carr v. Dist. of
Columbia, #08-7083, 2009 U.S. App. Lexis 25482 (D.C. Cir).
The Animal Enterprise Protection Act, 18 U.S.C. Sec.
43, under which an animal rights organization and various individuals were
convicted, was not unconstitutional as void for vagueness and did not violate
the First Amendment free speech rights of those using the organization's
website to coordinate civil disobedience. There was evidence from which the
jury could have believed that the object of a conspiracy among some of the
defendants was to create physical disruption to an animal enterprise and
intentionally cause loss of or damage to property. Participation in such
illegal activity was not protected free speech activity. U.S.A. v. Stepanian,
#06-4211, 2009 U.S. App. Lexis 22515 (3rd Cir.).
Activists distributing leaflets on immigration
policy by placing them on cars parked along city streets were improperly denied
a preliminary injunction against sheriff's deputies' orders to stop on the
basis of purported violations of a city anti-litter ordinance. A federal
appeals court ruled that the city had failed to present evidence that placing
the leaflets on cars would result in any litter at all, let alone more than a
"minimal" amount of additional litter. The court, noting that the
protection of private property is not a sufficiently substantial governmental
interest to support general bans on door to door solicitation, reasoned that it
was also insufficient to support a general ban on putting leaflets on the
windshields of empty vehicles on the street. Klein v. City of San Clemente,
#08-55015, 2009 U.S. App. Lexis 21642 (9th Cir.).
A federal appeals court orders further
proceedings to seek evidence of what adverse secondary effects result from
adult businesses that carry only purchase and take home books and DVDs, as
opposed to presenting live or recorded entertainment on the premises. An
injunction against the enforcement of a city ordinance regulating adult
businesses was improperly entered by the trial court on the basis that it
violates the First Amendment because it was not narrowly tailored to achieve
its objectives. The court ordered that the injunction remain in place pending
the outcome of the hearing below. New Albany DVD, LLC v. City of New Albany,
Indiana, #05-1286, 2009 U.S. App. Lexis 20703 (7th Cir.).
In a lawsuit against a municipal adult
entertainment licensing ordinance, a federal appeals court ordered an
evidentiary hearing to determine if the city can show that the public benefits
provided by the restrictions are great enough to justify any resulting
infringement on First Amendment rights. The court noted that the prior studies
of the secondary effects of adult businesses relied on by the city in enacting
the ordinance did not show that an increase in operating hours of adult
businesses caused an increase in crime in the area, The ordinance at issue,
among other things, requires adult bookstores to close at night and on Sunday,
which would limit sales, in light of which the public benefit to result must be
supported by evidence rather than merely asserted, the court stated. Annex
Books, Inc. v. City of Indianapolis, Ind., #05-1926, 2009 U.S. App. Lexis 19844
(7th Cir.).
Participants in a federal housing program sued,
claiming that they were maliciously investigated and prosecuted in retaliation
for exercising their right of free speech to criticize certain federal housing
practices and filing a lawsuit against a number of government agencies. The
investigation and prosecution, which was ultimately dropped, involved the
plaintiffs' use of housing program funds. The plaintiffs failed to show that
the agent involved in the investigation and prosecution was aware of their
protected activity. Additionally, the investigation and their arrests occurred
before they engaged in the speech in question, and was prompted by a complaint
of non-payment of amounts allegedly due to a property owner. The appeals court
also rejected false arrest and malicious prosecution claims as meritless, as
the arrests were based on a valid warrant. Brown v. U.S. Postal Service,
#08-10991, 2009 U.S. App. Lexis 16525 (Unpub. 5th Cir.).
Protesters objecting to the "Gay
Games," an athletic and cultural event, tried to distribute religious
literature and talk to participants at three locations. At the first location,
police allegedly told them to keep moving, and not to stay in one place on the
sidewalk. At the second location, police allegedly told them that they needed a
permit to demonstrate, resulting in the arrest of one protester for trespass
after he refused to leave. In the third location, officers arrested a
demonstrator for disorderly conduct because he refused to move from his spot on
the sidewalk. These actions did not violate the First or Fourth Amendment
rights of the protesters. The permit requirement and prohibitions on standing
on the sidewalk were valid time, place, and manner regulations on expression. The
arrests were supported by probable cause to believe an offense had occurred.
Marcavage v. City of Chicago, #06 C 3858, 2009 U.S. Dist. Lexis 61438
(N.D. Ill.).
Police officers conducting a raid on a suspected
drug house arrested a freelance photographer who stood nearby to take pictures
while the raid was ongoing, and who disobeyed orders to leave. Rather than
arresting the plaintiff in violation of any First Amendment right to take
pictures, an argument that he provided no support for, the court found that the
plaintiff was arrested for failure to comply with an instruction to leave the
area given because he was standing directly across the street from a purported
drug house, "where a high-risk search warrant was in the process of being
executed." Hollins v. City of Milwaukee, #08-3505, 2009 U.S. App. Lexis
16916 (7th Cir.).
Secret Service agents were entitled to qualified
immunity in a lawsuit claiming that they violated demonstrators' First
Amendment rights by ordering the relocation of a protest. The plaintiffs'
allegation that the defendants acted for an impermissible motive based on the
content of their expression was "conclusory," and was not entitled to
be assumed to be true for purposes of a motion to dismiss the lawsuit. Moss v.
U.S. Secret Serv., #07-36018, 2009 U.S. App. Lexis 15694 (9th Cir.).
Federal appeals court upholds the
constitutionality of a statute that established a fixed "buffer zone"
around abortion facilities barring demonstrators from protesting near clinic
entrances. Nothing in the statute itself or its legislative history indicated
that it was not "content neutral," and it was a valid
time-place-and-manner regulation promoting a substantial governmental interest
without restricting free speech any more than necessary to accomplish it, as
well as leaving open alternative means of communication. McCullen v. Coakley,
#08-2310, 2009 U.S. App. Lexis 14927 (1st Cir.).
Because the state has a compelling interest in
preventing the intimidation and confusion of the public, a state statue
prohibiting the solicitation of voters within 100 feet of any polling place did
not violate First Amendment rights. Citizens for Police Accountability Pol.
Comm. v. Browning, #08-15115, 2009 U.S. App. Lexis 13785 (11th Cir.).
Plaintiffs who successfully challenged the
constitutionality of a city's parade and mass gathering ordinances as violative
of the First Amendment were awarded a total of $83,264.78 in attorneys' fees
and costs, including $6,000 for their attorneys' work in pursuing the fee
request. The plaintiffs prevailed on challenges to five aspects of the
ordinances, including bonding and insurance requirements for parades and
marches, standing to challenge a 30-day notice requirement, the 30-day notice
requirement itself, proper calculation of an administrative fee, and a meet and
attempt to agree provision. Their success on some, but not all, of their claims
entitled them to 50% of their fee request. Sullivan v. City of Augusta,
#CV-04-32, 2009 U.S. Dist. Lexis 48602 (D, Maine).
Rules established by
the City of Seattle governing street performers in an 80-acre public park and
entertainment complex known as the Seattle Center were impermissibly broad, in
violation of the First Amendment, given the area's status as a traditional
public forum. The rules require such performers to obtain permits before
performing; set out specified locations for street performances and established
a first-come, first-served rule for using the locations; allowed only passive
solicitation of funds by street performers; and prohibited any communication,
by street performers or anyone else, within thirty feet of visitors to the
Seattle Center who are waiting in line, attending an event, or sitting in a
spot available for eating or drinking. The court rejected the city's argument
that these were valid "time, place, or manner" restrictions. Berger
v. Seattle, #05-35752, 2009 U.S. App. Lexis 13609 (9th Cir.).
An adult entertainment cabaret, which challenged
a city's adult business zoning ordinances as violating its First Amendment
rights, was entitled to injunctive relief against enforcement of the
ordinances, which were unconstitutional as applied to it, even though they were
"content-neutral" and facially valid. Once the trial court ruled that
the ordinances were an unconstitutional prior restraint on free speech, it was
erroneous not to enjoin their enforcement. H.D.V.-Greektown, LLC v. Detroit,
#08-1329, 2009 U.S. App. Lexis 12588 (6th Cir.).
Animal rights protestors had previously reached a
settlement with a county government, which agreed not to enforce a county
permit requirement on small spontaneous animal rights demonstrations.
Subsequently, county employees called city police to complain about the animal
rights protestors demonstrating against a circus. The police arrived and ended
the demonstration, based on lack of a permit,. as required by a city ordinance.
The circus was taking place on land under city, but not county, jurisdiction.
The city later reached a settlement with the demonstrators agreeing not to
enforce the advance permit requirement against such demonstrations. The
demonstrators then sued the county, based on the actions of its employees in
calling city police. A federal appeals court upheld summary judgment for the county
and two of its employees. It held that the county employees, in calling city
police to enforce a city ordinance, did not act under color of law, but only
did what any private citizen could do. The county and its employees were not
responsible for the actions of the city police officers. Utah Animal Rights
Coal. v. Salt Lake, #07-4275 566 F.3d 1236 (10th Cir. 2009).
City ordinances that restricted an artist from
displaying and selling his artwork in a public park were content neutral, aimed
at furthering legitimate governmental interests in controlling the flow of
traffic, and protecting property values, and constituted reasonable time,
place, and manner regulation of First Amendment speech. Travis v. Park City,
#08-4115, 2009 U.S. App. Lexis 10146 (10th Cir.).
While a city ordinance restricting the manner and
place of protests was unconstitutional, since it was too restrictive, and not
narrowly tailored, anti-abortion protesters failed to show that the city
engaged in a pattern or practice of discriminating against them. The court also
rejected the argument that the mayor violated the plaintiffs' First Amendment
rights by asking them, on the day of a city Christmas parade, to display only
written messages instead of the photographs of aborted fetuses they were
holding up. The court awarded the protesters $300 in damages, and stated that
they could also recover costs and attorneys' fees on their challenge to the
ordinance. Michael v. City of Granite City, #06-CV-01, 2009 U.S. Dist. Lexis
25563 (S.D. Ill.).
A police officer was not entitled to summary
judgment in a "pro-life" activist's lawsuit over prohibiting him from
walking in an alley near an abortion clinic, thereby preventing him from being
able to speak to the clinic's clients about his anti-abortion beliefs. While
the officer said that his actions were based on concerns for pedestrian safety,
the appeals court noted that the clinic's clients and personnel were not
prevented from entering the alley to use its only entrance, despite the presumed
presence of the same pedestrian safety concerns. Further proceedings were
ordered on First Amendment claims. McTernan v. City of York, Pa., #07-4437,
2009 U.S. App. Lexis 8884 (3rd Cir.).
A federal district judge granted a temporary
restraining order enjoining a prosecutor from bringing criminal charges against
the plaintiffs' minor children for "sexting," the practice engaged in
by them of using cellphones or the Internet to send or post sexually suggestive
text messages and semi-nude or nude photographs of themselves. The plaintiff
parents sought the order to prevent criminal charges involving photos that they
said did not show sexual activity. The plaintiffs argued that the threatened
prosecution violated First Amendment rights to self-expression and the
children's right to be free from compelled speech, as well as the parents'
rights, under the Fourteenth Amendment, to determine the upbringing of their
children. The "compelled expression" claim was based on the
prosecutor's demand that the minors write essays stating that what they did was
wrong, which they did not believe, or face felony charges. Miller v. Skumanick,
#3:09cv540, 2009 U.S. Dist. Lexis 27275 (M.D. Pa.).
Online want ads firm www.craigslist.com agrees to
drop an erotic services category. In doing so, however, it substituted an
"adult services" category, which continues to include ads for
unlicensed massage services and escorts, leading some to question how
substantive the change made was, while the company contended that the ads in
the new category were now screened for potentially illegal content. The
substitution of the "adult services" category for the "erotic
services" category was effective for the company's classified ad pages for
U.S. cities, while the "erotic services" category was evidently
retained for pages for some foreign cities. The Cook County, Illinois Sheriff
had sued the firm, claiming that his office had incurred high costs while
enforcing state solicitation laws, and seeking an injunction. Dart v. Craigslist,
Inc., #09-cv-1385 (N.D. Ill.). Click here to view the Complaint in the case.
Also, on May 22, 2009, a federal judge entered an agreed order restraining the
South Carolina Attorney General from prosecuting craigslist.com or its officers
regarding site content, specifically ads that allegedly led to prostitution
arrests, while the company pursues a lawsuit against the state over threats of
such prosecution. The complaint in the case can be found at the following link.
Craiglist, Inc. v. McMaster, #2:09-cv-01308, (U.S. Dist. Ct. S.C.).
Two lesbian women claimed that the city failed to
treat complaints they file in the same manner as those filed by heterosexuals,
in violation of their equal protection rights and in retaliation for their
exercise of their First Amendment rights in filing the complaints. They
reported that a registered sex offender was violating the law by living near a
school and also complained that they faced harassment by certain persons on the
basis of their sexual orientation. While the municipal defendants were aware of
the plaintiffs' sexual orientation, the court found no evidence of
discriminatory intent on the basis of sexual orientation in the decisions not
to pursue the complaints. Additionally, there was no evidence that the city's
alleged non-responsiveness was motivated by retaliation against the plaintiffs
for filing their reports, in violation of their First Amendment rights. Butler
v. City of Batavia, #08-1361, 2009 U.S. App. Lexis 7229 (Unpub. 2nd Cir.).
The City of Los Angeles settled lawsuits
arising from a 2007 May Day immigration rights demonstration in a public park
for $12.85 million. A class action lawsuit, as well as a number of individual
cases, claimed that officers used improper crowd control tactics, resulting in
numerous injuries. 8 (1) Police Practices Review (PARC) 7-8. A report by the
LAPD to the Board of Police Commissioners concerning the incident is available
online.
A Missouri state specialty license plate program
was violative of the First Amendment in giving the state total discretion to
decide what viewpoints could be expressed on the license plate. A federal
appeals court found that the license plates did not constitute speech by the
government, but rather speech by the private motorists whose cars display the
plates. The court upheld an injunction ordering the state to issue requested
anti-abortion "Choose Life" specialty license plates. Roach v. Davis,
#08-1429, 560 F.3d 860 (8th Cir. 2009).
Gun show promoters failed to show that an ordinance
prohibiting the presence of firearms on county property violated their Second
Amendment or First Amendment rights. The federal appeals court ruled that the
rights guaranteed by the Second Amendment apply to the states because they are
incorporated by the due process clause of the Fourteenth Amendment, but that
the Second Amendment does not guarantee a right to possess guns on government
property. The county could regulate gun possession in sensitive public spaces,
and its actions did not violate the promoters' right to self-defense. Even if
the holding of a gun show was expressive conduct, the county ordinance was not
intended to suppress speech, and the desire to reduce gun violence was a
reasonable basis for the law. Finally, the appeals court rejected an equal
protection claim based on an argument that the ordinance unequally applied to
the possession of guns for promoters holding a gun show and possession of guns
for "entertainment" purposes. The court found that entertainment
events were not similarly situated to gun shows, as they involved safety
measures that the gun show promoters couldn't meet. Nordyke v. King, No.
07-15763, 2009 U.S. App. Lexis 8244 (9th Cir.).
Store owner could proceed with his First Amendment
claim arising from his arrest and prosecution for attaching, to a "Road
Construction Ahead" traffic sign, a warning about a sheriff's checkpoint
nearby. The trial court improperly considered information outside the complaint
and improperly drew inferences in favor of deputies in granting dismissal of
the lawsuit on the basis that the plaintiff's speech had not been
constitutionally protected and that he had failed to show a lack of probable
cause for his arrest. Rodriguez v. Rutter, No. 07-51423, 2009 U.S. App. Lexis
2440 (Unpub. 5th Cir.).
A county ordinance with licensing requirements
and regulations concerning "sexually-oriented" businesses was
properly content-neutral and aimed at the negative secondary effects of the
presence of the business, and was not an unconstitutional prior restraint.
Additionally, the defendant county had met its burden of showing why it
believed the ordinance at issue would have the desired effect. Richland
Bookmart, Inc. v. Knox County, Tennessee, No. 07-6469, 2009 U.S. App. Lexis
2729 (6th Cir.).
A visual artist barred from selling his work on
the streets, in the parks, or on other city property under a municipal
ordinance could not pursue civil rights claims for damages against individual
defendants, who were entitled to qualified immunity because the constitutional
rights they alleged violated were not "clearly" established at the
time. Further proceedings, however, were required on claims for municipal
liability, to which the qualified immunity defense did not apply. Christensen v.
Park City Mun. Corp., No. 07-4273, 2009 U.S. App. Lexis 2268 (10th Cir.).
Whether or not an officer or his colleagues had a
retaliatory motive for stopping a motorist for speeding because he had
supported a candidate running for sheriff in that day's primary election was
irrelevant when the officer had probable cause based on observation of the
speeding vehicle. The trial court also detailed subsequent observations
concerning signs of possible intoxication, which also supported the arrest.
Hubble v. Voorhees, No. 06-3546, 2009 U.S. App. Lexis 3732 (Unpub.7th Cir.).
Bicycle club was not entitled to a preliminary
injunction against a city's parade rules, which mandate an advance permit for
any group bicycle rides involving 50 or more persons. While it might be true
that not every group bicycle ride of that size would involve the disruption of
traffic, the violation of traffic laws, or pose a danger to others, the fact
that such an event could pose such hazards was likely to have justified the
imposition of the permit requirement. Five Borough Bicycle Club v City of New
York, 07-2154, 2009 U.S. App. Lexis 1620 (Unpub. 2nd Cir.).
City's action in initially ordering demonstrators
to cease their activities, utilizing its all events policy, was
unconstitutional, in violation of the First Amendment, given that the
protestors were engaged in the display of signs, spoken messages, and the
passing out of leaflets on city sidewalks which were a traditional public
forum. The policy's permit requirement did not contain any criteria for
granting or denying the permit, giving the municipality's mayor and public
safety director seemingly unlimited discretion which could be used to deny
permits for reasons such as the content of the speech involved. Additionally,
the requirement that 30 days notice be given before holding a demonstration was
found unconstitutional. The city was liable to the plaintiffs. Trewhella v.
City of Findlay, Case No. 3:07 CV 2372, 2008 U.S. Dist. Lexis 105281 (N.D.
Oh.).
A military academy's policy barring
demonstrations on the premises did not violate the First Amendment, as it was
applied in a viewpoint neutral manner, and the academy, which was located on a
military facility, was not a public forum. Sussman v. Crawford, No. 07-2171,
2008 U.S. App. Lexis 24458 (2nd Cir.).
The owner of a car claimed that a deputy sheriff
violated his First Amendment rights by issuing a repair order for a cracked
windshield, followed by the towing of his car, and ultimately it being
compacted when he failed to pay a towing fee. The plaintiff had placed
swastikas and the words "Vote for Pipkin" on the car, referring to a
state senator whom he opposed. The deputy's actions were allegedly taken after
the senator's office complained about the car, which was operable, not
abandoned, and legally parked. The defendant was not entitled to summary
judgment on the First Amendment claim. Richter v. State of Maryland, Civil No.
07-2707, 2008 U.S. Dist. Lexis 104397 (D. Md.).
Police who entered a condemned building without a
warrant to place illegal occupants staging a protest under arrest were entitled
to qualified immunity on Fourth Amendment and First Amendment claims, as their
actions did not violate these rights. Further proceedings were needed, however,
on claims related to strip searches conducted. Cross v. Mokwa, No. 07-3110, 547
F.3d 890 (8th Cir. 2008).
A Seattle city ordinance that gives the police
chief, while granting parade permits, unbridled discretion to decide whether to
allow a group to use the street or remain confined to use of the sidewalk for
their demonstration violates the First Amendment. It failed to require that the
police chief give any reason for his decision, and failed to provide a
mechanism for appealing such decisions. Seattle Affiliate of the October 22nd
Coalition to Stop Police Brutality v. City of Seattle, No. 06-35597, 2008 U.S.
App. Lexis 25036 (9th Cir.).
Police captain in charge of directing police
response to campus anti-war protest was not entitled to qualified immunity on
claims that he authorized the arrests of and use of force against certain
protestors, in violation of their First Amendment rights. The rights to freedom
of speech and to peaceful assembly are "clearly established." Buck v.
City of Albuquerque, No. 07-2118, 2008 U.S. App. Lexis 25450, (10th Cir.).
Actions of police officer, which completely
excluded for one day political petition signature gatherer from cook-out event
open to the public held on public property under permit, violated the First
Amendment when no justification was given other than the purported right of the
permit holder to exclude political messages. Further proceedings were ordered
to determine whether the officer was entitled to qualified immunity. Court
rejects the plaintiff's argument, however, that a traffic citation given to her
on a subsequent day for driving past a police barricade stating that a road was
closed improperly retaliated against her for a newspaper article that appeared
about the first incident. The plaintiff herself did not dispute that she drove
past the barricade. Dietrich v. John Ascuaga's Nugget, No. 06-17135 548 F.3d
892 (9th Cir. 2008).
Federal appeals court overturns denial of
preliminary injunction against Missouri law imposing criminal penalties for picketing
in front of funerals. First Amendment interests in protecting speech would
outweigh any interest the state has in protecting mourners from the plaintiff's
message that God is "punishing America" for homosexuality by having
Americans, including U.S. soldiers, die. Phelps-Roper v. Nixon, No. 07-1295,
545 F.3d 685 (8th Cir. 2008).
A police chief acted properly in reporting to a
poll inspector that voters who used their parents' address to register appeared
to live elsewhere, resulting in a mistaken challenge to their absentee ballots.
This was not a violation of the voters' First Amendment or other constitutional
rights. Kozuszek v Brewer, No. 07-3224, 2008 U.S. App. Lexis 21088 (7th Cir.)
Specialty license plates are not a "public
forum," and it does not violate the First Amendment rights of an
anti-abortion group to deny their request that Illinois issue "Choose
Life" license plates. The state can impose a viewpoint neutral, but
content based, ban on all messages about abortion on license plates. Choose
Life Illinois, Inc. v. White, No. 07-1349, 2008 U.S. App. Lexis 23715 (7th
Cir.).
City curfew ordinance barring minors from
appearing in public during designated hours except for certain limited
enumerated purposes violated the equal protection and free speech rights of a
minor and his father. Anonymous v. City of Rochester, 796 CA 07-02672, 2008
N.Y. App. Div. Lexis 7586 (4th Dept.).
Anti-abortion protester found guilty and fined
for using a sound system outside an abortion clinic in violation of a city
ordinance failed to show that this violated his First Amendment right to
exercise his religion in violation of the Pennsylvania Religious Freedom
Protection Act, 71 Pa. Stat. Ann. §§ 2401-2407. The defendant provided no
testimony that his actions of preaching to people near the clinic were
activities "fundamental" to his religion, but merely showed that he
was engaged in these activities on the basis of his religious beliefs.
Pennsylvania v. Parente, No. 1575 C.D. 2007, 2008 Pa. Commw. Lexis 397.
Motorcycle club members could not recover damages
for violation of their federal civil rights based on their removal by security
from a city park on the basis of a policy of festival sponsors prohibiting the
wearing of gang colors or other similar insignia, including motorcycle club
insignia. Running such festivals, the court found, was not a traditional
municipal function, and the association running the festival did not act under
color of state law, despite the fact that the festival was held in a park in
which the city retained control and provided security. The city was not
involved in formulating the festival's dress code, and a police officer would
not violate the constitution in enforcing the rights of a private entity, such
as the festival sponsor. Villegas v. Gilroy Garlic Festival Association, No.
05-15725, 2008 U.S. App. Lexis 18801 (9th Cir.).
U.S. Coast Guard personnel did not violate the
First Amendment by establishing and enforcing a safety zone protecting a super
ferry from a possible blockade by protestors. Wong v. Bush, No. 07-16799, 2008
U.S. App. Lexis 18973 (9th Cir.).
A city's regulation, under which some individuals
and entities were allegedly allowed to hold activities in the lobby and stairs
inside City Hall, and the plaintiffs were not allowed to hold press conferences
and/or political rallies was violative of due process and unconstitutionally
vague. It did not, however, violate their First Amendment rights or their right
to equal protection of law. To the extent that the regulation was vague, the
court would enjoin its enforcement. Miller v. City of Cincinnati, No.
1:08cv550, 2008 U.S. Dist. Lexis 64393 (S.D. Ohio).
"Pro-life" organizations who sought to
conduct counseling outside abortion clinics failed to show that a Massachusetts
statute that established a 35-foot fixed buffer zone around the driveways and
entrances of such facilities violated their First Amendment rights, or their
right to equal protection or due process of law. The law was justified by the
state's police power and its interest in providing safe access to medical
services, without any reference to content of communication. McCullen v.
Coakley, No. 08-10066, 2008 U.S. Dist. Lexis 64560 (D. Mass.).
There were genuine issues of fact as to whether
union activists who protested at a "free trade" summit were
improperly arrested after leaving the protest and charged with disorderly
conduct in retaliation for their participation in the protest, in violation of
their First Amendment rights. Battiste v. Lamberti, No. 05-22970, 2008 U.S.
Dist. Lexis 61191 (S.D. Fla.).
A city ordinance regulating the passing out of
handbills constituted a content-neutral restriction on the time, place, and
manner of speech, but was unconstitutional because it did not serve a
substantial governmental interest and was not narrowly tailored to serve such
an interest, and did not provide other adequate channels of communications.
Further proceedings were ordered on the question of what actual damages, if any,
the plaintiff had suffered as a result of the ordinance. Horina v. City of
Granite City, No. 07-1239, 07-2623, 2008 U.S. App. Lexis ____ (Unpub. 7th
Cir.). (Note to Missy: decided Aug. 7--Lexis cite not yet available, should be
in a couple of days).
Police officers who arrested 16 protestors at an
antiwar rally could not pursue, on appeal, their argument that they were
entitled to summary judgment on the basis of qualified immunity for allegedly
using force to break up the protest. Their argument was that the protestors had
not shown that the officers violated their clearly established First Amendment
rights, because they had not proved that the officers' actions would have
"chilled" a person of "ordinary firmness" from exercising
their constitutional rights. They failed, however, to raise this argument in
the trial court, so it could not be considered on appeal. Buck v. City of
Albuquerque, No. 07-2117, 2008 U.S. App. Lexis 16093 (10th Cir.).
Anti-homosexual counter-protestors at homosexual
street festival covered by a permit did not show that police violated their
rights in asking them to move on, and then arresting them when they interfered
with the festival's activities. While the permit holders would not have been
able to exclude them from the festival, since the public streets were a
traditional public forum, the arrestees' actions did constitute disorderly
conduct. Startzell v. City of Philadelphia, No. 07-1461, 2008 U.S. App.
Lexis 14984 (3rd Cir.).
Officers were not entitled to qualified immunity
for arresting a number of vegetarian protestors after they had handed out
vegetarian flyers and talked to shoppers outside a food store. The officers
allegedly told them to stop handing out leaflets, and to stop talking to
shoppers. One of the protestors wrote down the license plate number of a car
from which an undercover officer was watching, and the officers subsequently
followed the protestors' car, blocked their exit, and demanded to be given the
slip of paper with the license plate number, after which they arrested the
protestors in the car for disorderly conduct. The protestors had a clearly
established right to peacefully protest for vegetarianism on public property.
Childs v. DeKalb County, Georgia, No. 07-15028, 2008 U.S. App. Lexis 15380
(Unpub. 11th Cir.).
Federal judge upholds Denver's plan to restrict
protests around the site of the August 2008 Democratic National Convention to
"protest zones," amounting to a "security perimeter,"
rejecting arguments by demonstrators that the public protest area should be
moved closer to where delegates would be coming in and out of the convention
center. "The court finds that the plaintiffs have shown that the
challenged restrictions affect their ability to engage in expressive activities
in traditional public fora. However, the defendants have shown that the
restrictions are content-neutral, that they are narrowly tailored to serve
important governmental interests, and that there are adequate alternative
channels by which the plaintiffs can communicate their messages. Thus, the
plaintiffs have not shown that their First Amendment rights will be infringed,
nor that they are entitled to any injunctive relief. " ACLU of
Colorado v. City and County of Denver, Civil Action No. 08-cv-00910, U.S. Dist.
Ct. (D. Colo. August 6, 2008).
Man's expulsion from a town's community center
and his later arrest and prosecution for trespass did not violate his Fourth or
Fourteenth Amendment right or his First Amendment rights. The town had a right
to limit access to its facilities, and this action did not silence or chill his
speech. There was probable cause to arrest him when he returned to the center
despite having been told not to return. Williams v. Town of Greenburgh, No.
06-4897, 2008 U.S. App. Lexis 15403 (2nd Cir.).
Federal court allows civil rights claims by four
demonstrators arrested while protesting a Presidential inauguration in
Washington, D.C. to go forward. After some demonstrators committed acts of
vandalism or other crimes, approximately 65 to 75 individuals were arrested.
While the District claimed that an officer had grounds to arrest the
demonstrators for rioting and parading without a permit, the officer could not
make a mass arrest unless he first transmitted an order asking the crowd to
disperse, and providing the crowd with a reasonable time to do so. Failure to
do so violates the Fourth Amendment. The District was evidently unable to
identify the demonstrators who engaged in the criminal actions during the
incident, and it lacked evidence to show either that all demonstrators had done
so or that the plaintiff arrestees had done so. Partial summary judgment was
granted to the plaintiffs on the issue of liability. Carr v. D.C., Civil Action
No. 06-00098, 2008 U.S. Dist. Lexis 46489 (D.D.C.).
Police officers violated the First Amendment
rights of anti-abortion protesters by ordering them to move their truck,
displaying graphic photos of aborted fetuses, from an area near a middle
school. The individual officers, however, were entitled to qualified immunity
from liability for damages because of the lack of clearly established
precedent. There were also genuine issues of fact as to whether the officers
acted improperly in searching the vehicle, or in the length of time they
detained a number of the protesters. Ctr. for Bio-Ethical Reform, Inc. v. Los
Angeles County Sheriff Dep't, No. 05-55294 2008 U.S. App. Lexis 13975 (9th
Cir.).
Further proceedings were ordered on whether
public university officials' denial to a campus evangelist permission to
continue a speech on school grounds violated his First Amendment or due process
rights. The court found that a campus open area was a limited public forum, but
also commented that the university officials in charge of enforcing an
unwritten university policy concerning speech there did not appear to
understand it very well. Gilles v. Garland, No. 07-3645, 2008 U.S. App. Lexis
13191 (Unpub. 6th Cir.).
Journalists claimed that FBI agents, while
executing a search warrant at a condominium building, grabbed and assaulted
them, and used pepper spray and metal batons against them when they entered a
gated area. The agents were using the building's fences and security structure
in an attempt to restrict the flow of people into the area, and allegedly did
not give them a chance to exit before using force against them. The court found
that there was no special First Amendment right of access by the press to enter
property that was not in the public domain. The court found, however, that some
of the journalists' Fourth Amendment claims were improperly dismissed. The
appeals court ruled that "mere obstinance" by a crowd did not justify
the use of force when there is no showing that crowd members posed a public
safety threat or that any other law enforcement considerations were at risk.
The court ruled, therefore, that Fourth Amendment excessive force claims by
individual journalists could proceed, while the rejection of all First
Amendment claims was upheld. Asociacion de Periodistas de Puerto Rico v. Mueller,
No. 07-2196, 2008 U.S. App. Lexis 12783 (1st Cir.).
A man's removal from a public meeting of a county
planning commission did not violate his First Amendment rights when he had
refused, while speaking, to relate his comments to the issue under discussion,
or to cease speaking and sit down after refusing to stay on topic. The
commission had a right to set its agenda, and a policy barring personal attacks
during meetings served a legitimate interest in preserving order. The action
taken was "content neutral" because it was not based on the speaker's
viewpoint, and the plaintiff did not show that other people were allowed to
speak off-topic. Steinburg v. Chesterfield County Planning Commission, No.
07-1181, 2008 U.S. App. Lexis 11417 (4th Cir.).
Police officers were entitled to qualified
immunity for arresting (for disorderly conduct) protesters awaiting the passing
of a presidential motorcade who stripped down to their thong underwear and
formed a human pyramid for purposes of protesting the war in Iraq. The
demonstrators were released after two hours in custody, and charges against
them were dropped. The police needed to make a "split second"
decision in circumstances where the boundaries of free speech were
"muddled," the court concluded, so that their actions could not be
viewed as a willful violation of the law or incompetent. Egolf v. Witmer, No.
06-2193, 2008 U.S. App. Lexis 11079 (3rd Cir.).
A police officer ejected an artist from a city
park after telling him that a city ordinance barred him from conducting
business there without a license. That ordinance barred selling art in the
park, but permitted the display of such art there, but the officer
misunderstood it. Because the artist denied ever selling art there, and had no
intention of doing so, and because there was also no showing that he abandoned
any such intention out of fear of arrest, he did not have standing to challenge
the ordinance as a violation of his First Amendment rights. Travis v. Park City
Police Dept., No. 07-4192, 2008 U.S. App. Lexis 10543 (Unpub. 10th Cir.).
A deputy sheriff and a U.S. Forest Service
officer didn't use excessive force by attempting to arrest a protester who had
climbed a tree by denying her supplies, food, and water, subjecting her to a
risk of severe dehydration. Her own decision to remain in the tree was the
cause of her injuries, and the case she relied on for her argument that
excessive force was used involved the direct use of force, such as pepper
spray, in instances where police could have easily removed protesters without
infliction of injury or pain. The defendants' actions in the immediate case
were consistent with the court's ruling in that past case. The officers had no
obligation to "care" for her while she was in the tree, since she was
not in their custody. Smith v. Ball, No. 07-35080, 2008 U.S. App. Lexis 1059
(Unpub. 9th Cir.).
The trial court's issuance of an injunction
barring a deputy sheriff's ex-wife from publishing false and defamatory
statements or confidential personal information about him or from initiating
contact with the sheriff's department concerning him, except for the purpose of
reporting criminal conduct under emergency circumstances violated her free
speech rights under both the U.S. and California constitutions. The order was
an unconstitutional prior restraint and was overbroad and vague. False and
defamatory statements cannot be enjoined before they are found, at trial, to be
defamatory. The prohibition on the publication of confidential personal information
would require a more specific description of the information at issue,
although, if sufficiently described, its publication might violate a right of
privacy under the California constitution. Finally, the wife had a
constitutional right to petition the government that included contacting the
sheriff's department in non-emergency circumstances, and the order prohibiting
her from doing so was not justified by the evidence in the record. Evans v.
Evans, No. D051144, 2008 Cal. App. Lexis 689 (4th Dist.).
A business owner's claim that he was issued
numerous municipal citations in retaliation for his frequent criticism of the
city's policies and administration was at least arguable, given that he
received 26 such citations in a time frame of less than two years.
Additionally, he received twelve citations for failing to have two (rather than
one) licenses for his business, and the number of the citations and their
timing presented circumstances from which a retaliatory motive could be
inferred. Williams v. City of Carl Junction, No. 07-2704, 2008 U.S. App. Lexis
9516 (8th Cir.).
A city's ordinances requiring that picketers on
public ways provide prior notice to the city and comply with certain
restrictions did not violate the First Amendment, but rather furthered
legitimate interests in maintaining the accessibility of streets and sidewalks.
The ordinances were "narrowly tailored" in that they did not provide
any discretion to prohibit picketing, and allowed for such notice to be given
at any time, without "advance" notice or the paying of any fees or
costs. A restriction on the size of signs furthered safety objectives and
reduced possible obstruction of traffic control devices. Green v. City of
Raleigh, No. 07-1351, 2008 U.S. App. Lexis 8242 (4th Cir.).
A police officer had probable cause to arrest a
man for interfering with his criminal investigation by repeatedly telling his
friend, the owner of a vehicle in which marijuana had been found, not to talk
to the officer. The arrestee acted in a disorderly manner, and allegedly
"spoke over" the officer's questions, interfering with the
investigation. The officer did not violate either the Fourth or First
Amendment, and the plaintiff's speech was not constitutionally protected.
Additionally, the officer gave him a warning to be quiet prior to arresting
him. The court also stated that, assuming that there was a constitutional
violation of free speech rights, it was not clearly established, so the officer
would still be entitled to qualified immunity. King v. Ambs, No. 06-2054 2008
U.S. App. Lexis 5899 (6th).
Even if a man was initially stopped from speaking
at a city council meeting because of the content of his speech, there were
grounds to remove him from the meeting and place him under arrest for trespass
when he charged the mayor because he was ruled out of order, and refused to
leave. The arrest did not violate his First Amendment rights, since there was a
compelling governmental interest in preserving order at the meeting. Kirkland
v. Luken, No. C-1-02-364, 2008 U.S. Dist. Lexis 17378 (S.D. Ohio).
A federal regulation, 38 C.F.R. sec.
1.218(a)(14), which prohibits unauthorized demonstrations by visitors to
Department of Veterans Affairs (VA) property, does not violate the First
Amendment. Preminger v. Sec'y Veterans Affairs, No. 2007-7008, 2008 U.S. App.
Lexis 4017 (Fed. Cir.).
Protest demonstrators and organizations
challenged the constitutionality of a city ordinance regulating expressive
activities in public forums, and were granted a preliminary injunction as well
as an award of attorneys' fees. The injunction was lifted after the city
enacted a revised ordinance resolving the complained of constitutional problems
with the original one. On appeal, the court upheld the award of attorneys' fees
under 42 U.S.C. Sec. 1988. The plaintiffs were prevailing parties, even though
they did not get a final judgment in their favor. The preliminary injunction
was sufficient, and the preliminary injunction was not dissolved based on a
finding that the plaintiffs were not entitled to it, but rather only after the
preliminary injunction had "done its job" by causing the city to pass
the revised ordinance. People Against Police Violence v. City of Pittsburgh,
No. 06-4457, 2008 U.S. App. Lexis 5644 (3rd Cir.).
Rules barring street performers from
"actively" soliciting donations in a city entertainment zone, while
allowing "passive solicitations," together with a permit requirement
for certain activities in the zone did not violate the First Amendment. The
city had a substantial interest in protecting the public for unwanted behavior
and harassment, and the rules were content neutral, and allowed the plaintiff,
without a permit, to convey any desired message verbally while walking through
the zone, as well as allowing him to pass out leaflets, gather signatures, or
make speeches. Berger v. City of Seattle, No. 05-35752, 2008 U.S. App. Lexis
331 (9th Cir.).
In a lawsuit filed after the Los Angeles Police
Department's alleged wrongful forceful dispersal of a protest concerning
immigration issues, the court ruled that the case met the requirements for
certification of a class action. It found that the alleged actions were not
"an isolated event," but that instead, an "unfortunate" history
of prior civil rights violations by the Department, and the contents of a
departmental report made it "clear" that it was not
"hypothetical" that there was a "threat of future injury."
The court found commendable the Department's remedial actions since the
incident at issue, but found that there was a realistic threat of a repetition
of the alleged violations. The police report showed that "very few"
people in the crowd of 6,000 persons were disorderly or attacked police,
despite the decision to declare the assembly unlawful and disperse the crowd.
Multi-Ethnic Immigrant Workers Organizing Network v. City of Los Angeles, No.
CV 07-3072, 2007 U.S. Dist. Lexis 92724 (C.D. Cal.).
Public university had a right to bar uninvited
guests from access to any part of its property, specifically from the student
union, its terrace, and the terrace walkway, and did not violate the First
Amendment rights of political campaign staff members who wanted to display
campaign signs and gather signatures in support of a candidate on the property.
A public university can control its property and place limits on where
uninvited persons can engage in expressive activity. Masel v. Mansavage, No.
07-cv-454, 2007 U.S. Dist. Lexis 93934 (W.D. Wis.)
Federal trial courts grants preliminary injunction
against enforcement of a city ordinance criminalizing as a disturbance of the
peace addressing "offensive, derisive, or annoying words" to persons
on the street or other public places. The ordinance was applied by police
officers who told a man to leave or risk arrest under the ordinance when he
spoke his religious views against alcoholism as people entered or left a
restaurant that serves alcohol. The court found that the ordinance was a
"content-based" restriction on speech, and was vague and overbroad,
since the officers were required to determine, on a subjective basis, what
statements were "annoying." Netherland v. City of Zachary, Louisiana,
#07-409, 2007 U.S. Dist. Lexis 90798 (M.D. La.).
Union activists conducting an allegedly peaceful
protest in downtown Miami, Florida claimed that officers from a county
sheriff's office had detained them without probable cause while being
supervised by the local police chief and police department. The police chief,
in his individual capacity, was entitled to qualified immunity for claims
against him based on his role as a supervisor. The plaintiffs claimed that he
failed to adequately train the officers, and that a report established that he
had notice of prior "widespread" unjustified arrests by police during
public protests. The court stated that it found no prior case law establishing
that a police chief, based on alleged past unjustified arrests by his officers,
had an obligation to conduct training for "borrowed" officers
concerning when to make arrests. Battiste v. Sheriff of Broward County, No.
06-14958, 2008 U.S. App. Lexis 339 (11th Cir.).
A police officer who allegedly arrested the
plaintiff for criticizing him for writing tickets, rather than for illegal
parking, was not entitled to qualified immunity in a lawsuit over alleged
violation of First Amendment rights. The officer was writing parking tickets,
and wrote one for the plaintiff, who tried to explain he was only parking on
the sidewalk temporarily in front of his apartment building to unload, and that
he was handicapped, with a handicap parking permit. When the plaintiff stepped
into the building and warned his employees working at the apartment building
that they should move their vehicles because the officer was writing tickets,
the officer allegedly stated that he was "tired" of the plaintiff's
"mouth," so that the plaintiff was going to jail, grabbing him by the
arm and attempting to pull him out of the building. Other officers arrived on
the scene and told the officer to leave the plaintiff alone. Making an arrest
that was based entirely on an arrestee's speech opposing or questioning police
actions violates the First Amendment. Lowe v. Spears, No. 07-1497, 2007 U.S.
App. Lexis 29488 (4th Cir.).
California Supreme Court holds that union
protesters have a free speech right, under state law, to engage in protests on
private property in shopping malls to urge boycotts of a store located there.
The mall owners had summoned a police officer to tell protesters that they were
engaged in trespassing while distributing boycott leaflets in the mall. Fashion
Valley Mall, LLC v. NLRB, (2007).
Provisions of city's mass outdoor gathering
ordinance requiring a 30 day advance notice for the issuance of a parade permit
were unconstitutional, but federal appeals court rejects the argument that an
"indigency" exception to a parade permit fee was required under the
First Amendment. The availability of parks and sidewalks for demonstrating
without a permit was an acceptable alternative for demonstrators who could not
afford the permit fee and other charges for police traffic control, the court
stated, agreeing with the approach taken by another federal appeals court in
Stonewall Union v. City of Columbus, 931 F.2d 1130, 1135 (6th Cir. 1991).
Sullivan v. City of Augusta, No. 06-1177, 2007 U.S. App. Lexis 29181 (1st
Cir.).
Police officer had probable cause to arrest man
for passing out handbills containing advertisements for businesses as well as
statements in favor of the legalization of marijuana. While the arrestee had a
clear First Amendment right to advocate legalization of marijuana, this did not
give him any right to violate an anti-littering ordinance while doing so, and
many of his handbills were lying in the street. Lorenzo v. City of Tampa, No.
07-13420, 2007 U.S. App. Lexis 29381 (11th Cir.).
Federal appeals court overturns decision that
plaintiff was not entitled to a preliminary injunction while her challenge to a
Missouri statute criminalizing picketing in front of a funeral location or
procession was considered. The appeals court found that the plaintiff had a
"fair chance" of proving that her First Amendment right to spread the
message that "God is punishing America" for the "sin of
homosexuality" by killing Americans, including American soldiers,
outweighs any governmental interest in protecting funeral mourners from
exposure to an unwanted message. Phelps-Roper v. Nixon, No. 07-1295, 2007 U.S.
App. Lexis 28196 (8th Cir.).
Disputed facts concerning whether police officers
were motivated by ordinary law enforcement concerns, or by a wish to censor the
speech of a religious leaflet distributor based on his viewpoint barred summary
judgment in a lawsuit over their arrest of the leaflet distributor for failing
to obey their order to move from the middle of the sidewalk. Frantz v. Gress,
No. 06-CV-3210, 2007 U.S. Dist. Lexis 81182 (E.D. Pa.).
Statute enacted by village banning the sale of
alcohol in new strip clubs was properly found to have been enacted to protect
current club owners from competition, so that the ban was not
"necessary" to serve a compelling state interest, and violated the
First Amendment. Joelner v. Village of Washington Park, Illinois, No. 06-2901,
2007 U.S. App. Lexis 26693 (7th Cir.).
Arrestee removed from "Palestinian
Solidarity Conference" at university by school safety officers could
pursue his federal civil rights claim on the basis of his allegation that the
officers acted under provisions of the D.C. Code, and removed him in violation of
First Amendment rights after he repeatedly asked a panel of speakers at the
conference whether they approved of suicide bombings. Maniaci v. Georgetown
University, No. 06-1625, 2007 U.S. Dist. Lexis 66236 (D.D.C.).
Persons
who were arrested and prosecuted for "open burning without a permit"
after they burned a "rainbow flag" at a Gay Pride parade to express
their disapproval of homosexuality, and who stated their desire to engage in
similar actions in the future, had standing to pursue their claim for injunctive
relief based on their claim that such conduct was protected by the First
Amendment and that the process for obtaining such permits was burdensome.
Daubenmire v. City of Columbus, No. 06-346, 2007 U.S. App. Lexis 25763 (6th
Cir.).
Anti-war protestor on university campus failed to
show that university buildings were a designated public forum on which the
school allowed the hanging of banners and "expressive painting," or
that the university violated his First Amendment rights when they removed
banners and painted messages he placed on the buildings to protest the war with
Iraq. The court found that the university policy was clear, that there was no
permission to paint messages on the sides of buildings, and that doing so was
vandalism. The appeals court also rejected the plaintiff's claim that the
university engaged in viewpoint discrimination in terms of which messages it
removed, finding that the removal of unauthorized banners and paintings was
"prioritized" on the basis of their prominence and limited by
budgetary concerns. Wilson v. Johnson, No. 05-6733, 2007 U.S. App. Lexis 16568
(6th Cir.).
Eleven arrestees who claimed that FBI agents who
interrogated them improperly interrogated them about their political activities
and affiliations and then improperly disseminated that information, in
violation of their First and Fourth Amendment rights, were not entitled to
injunctive relief even if those allegations were true. They failed to show that
the alleged past wrongful conduct would subject them to a threat of future
injury or continuing harm, particularly when the records derived from the
arrests had been expunged. Bolger v. District of Columbia, Civil Action No.
03-0906, 2007 U.S. Dist. Lexis 66716 (D.D.C.).
There is no constitutional right to enter a
federal building anonymously, so that the U.S. Marshals Service and Federal
Protective Service did not violate the plaintiffs' constitutional rights by
refusing them access to a federal building on the basis of an identification
policy. The defendants also acted reasonably in removing one of the plaintiffs
from the federal building, after he tried to enter without complying with their
orders. Foti v. McHugh, No. 05-16079, 2007 U.S. App. Lexis 20996 (9th Cir.).
A city's action in barring an artist from selling
his paintings on city sidewalks and parks violated his First Amendment rights
when the city barred such sales except for vendors having permits or whose
merchandise was found to convey an "express or obvious" religious,
political, philosophical, or ideological "message." The
self-expression of the artist, embodied in his paintings, were also protected
First Amendment speech even if it merely expressed his "perspective,"
including the "sanctity" of nature, other than an "obvious"
message. Additionally, the mere fact that the artist sold his work did not make
it commercial speech because it expressed more than simply
"proposing" a commercial transaction. Federal appeals court upholds
partial summary judgment for the artist's First Amendment challenge to the
city's vendor-permitting scheme, found by the trial court to be an invalid
prior restraint and to lack required objective criteria for the approval or
rejection of artwork for sale on public property. White v. City of Sparks, No.
05-15582, 2007 U.S. App. Lexis 20621 (9th Cir.).
In lawsuit challenging Michigan regulations
and a state statue barring businesses with liquor licenses from allowing
dancers to perform fully nude or to mimic sex acts on stage, the plaintiff was
entitled to a preliminary injunction because the challenged rules could not
survive a First Amendment challenge applying either "strict" or
"intermediate" scrutiny. The trial judge, in denying injunctive
relief, relied on New York State Liquor Authority v. Bellanca, No. 80-813, 452
U.S. 714 (1981) and California v. LaRue, No. 71-36, 409 U.S. 109 (1972),
holding that the 21st Amendment, in granting the states authority to regulate
liquor sales, allowed a state to prohibit nude dancing in places where liquor
is sold. The appeals court stated that the Supreme Court has "entirely
abandoned this rationale for upholding regulations that raise First Amendment
concerns in places where alcohol is sold," citing 44 Liquormart v. Rhode
Island, No. 94-1140, 517 U.S. 484 (1996). Because the state had put forward no
other relevant governmental interest to justify the restrictions imposed,
injunctive relief was proper. Hamilton's Bogarts, Inc. v. Michigan, No.
06-1436, 2007 U.S. App Lexis 20726 (6th Cir.).
A store owner's First Amendment rights were not
violated by his being given a citation for placing on a construction sign, a
warning to his customers of a roadblock, and for erecting an electric protest
sign there. The plaintiff admitted that he placed his sign on the construction
sign in a location that hid a traffic control device from view. The state had a
right to regulate the use of the roadways and a substantial interest in making
sure that traffic was regulated. The governmental action did not limit the
store owner's right of expression, except in the narrow circumstances that he
interfered with an official traffic control device. Claims in connection with
the electric protest sign were not dismissed, as they were not addressed in the
defendant officers' motion. Rodriguez v. Rutter, No. EP-07-CA-0115, 2007 U.S.
Dist. Lexis 56764 (W.D. Tex.).
Removing cameras placed in a public park by an
animal rights group in order to videotape deer-culling activity which it
opposed as inhumane did not violate the group's First Amendment rights, nor did
the erasure of the images captured by the cameras. S.H.A.R.K. v. Metro Parks
Serving Summit County, No. 06-4009, 2007 U.S. App. Lexis 20266 (6th
Cir.).
Officers did not violate a woman's free speech
rights by removing her from a county office where she voiced her opposition to
a new county payroll tax and stated that a county official was a "lying
son of a bitch," since the office was not dedicated as a "public
forum." An arresting officer had probable cause to take her into custody
for disrupting the office and refusing to leave when asked to do so. She had
announced that she was going to remain there, moving in and refusing to leave
until she got her "$70 back." The restrictions on her speech were
content-neutral and reasonable, and based on her interference with the
functioning of the office. Helms v. Zubaty, No. 06-6360 2007 U.S. App. Lexis
17156 (6th Cir.).
Federal trial court acted erroneously in
dismissing an anti-abortion demonstrator's civil rights lawsuit when he claimed
that officers outside of an abortion clinic arrested him for the content of his
speech there, rather than for any trespass on clinic property, in violation of
his First Amendment rights. Logsdon v. Hains, No. 06-4085 2007 U.S. App. Lexis
16023 (6th Cir.).
While a federal trial court found that an
ordinance restricting the location and manner of operation of a county's only
existing adult bookstore was content-neutral and aimed at preventing negative
secondary effects of adult businesses, a federal appeals court, while believing
that the main purpose of the county in passing the ordinance was to regulate
adult businesses' secondary effects, found that there was a genuine issue of
disputed fact as to whether the cases and research studies relied on by the county
were reasonably related to doing so. The store was in an area far away from any
residential area or other business. Further proceedings were ordered on the
store's First Amendment claims. Abilene Retail v. Board of Commissioners of
Dickinson County, Kansas, No. 05-3473, 2007 U.S. App. Lexis 16276 (10th Cir.).
Individual who posted on the Internet a video and
audio recording of the warrantless search of a private residence and a related
arrest was entitled to an injunction against state police interfering with the
posting. It was reasonably likely that the First Amendment protected the
posting even if the recording was illegally made and she had reason to know
that. Jean v. MA State Police, No. 06-1775, 2007 U.S. App. Lexis 14813 (1st
Cir.).
"Street preachers" conducted
demonstrations at the intersection of a public highway and a town street while
holding up pictures of mutilated fetuses, and one of them was arrested for
resisting arrest, stopping in a specified area, and demonstrating without a permit.
Officers also threatened to arrest other demonstrators. A trial court found no
First Amendment violation. An appeals court found that there was a genuine
issue of disputed fact as to the motivation of the officers in stopping the
demonstration and making the arrest. The appeals court found, on the basis of
the record, that none of the six laws cited were applicable or valid time,
place, or manner restrictions. The appeals court reversed summary judgment for
the town, while upholding the denial of summary judgment to the arrestee and
"street preachers'" organization, and ordered further proceedings.
World Wide Street Preachers Fellowship v. Town of Columbia, No. 06-30294, 2007
U.S. App. Lexis 13117 (5th Cir.).
A handicap access ramp leading to an abortion
clinic was not a public forum for First Amendment purposes, despite protestors'
claim that it encroached onto the public sidewalk. The demonstrators therefore
were not entitled to conduct their protest on the ramp, which was constructed
for purposes of complying with the Americans with Disabilities Act (ADA),
rather than to "facilitate" First Amendment activity or commerce.
Additionally, because the presence of the demonstrators would have interfered
with the accessibility requirements of the ADA, it was reasonable for police to
have prohibited them from entering onto the ramp. McTernan v. City of York, No.
4:07-CV-88, 2007 U.S. Dist. Lexis 36907 (M.D. Pa.).
A man demonstrated on election day 2004 while
dressed up in a costume as a terrorist and a sign stating "Vote
Kerry" on one side and "Bush" with a red circle and a line
through it over the name on the other side was told by police to remove his
mask, a plastic item that resembled a machine gun, and two empty green ammunition
bandoliers, or face arrest. These actions by the police were not aimed at
suppressing the plaintiff's First Amendment protected political message, but
rather on preventing public alarm because of elements of his costume that some
might find threatening. It was a question for a jury, however, whether the
restriction imposed was reasonable, narrowly tailored to serve a significant
governmental interest, and left sufficient alternative opportunities for the
plaintiff to express his message. Galibois v. Fisher, No. 04-cv-444, 2007 U.S.
Dist. Lexis 34149 (D.N.H.).
Federal appeals court rules that approximately
1,000 protestors had no First Amendment right to be admitted to the U.S.
Military Academy at West Point for a political demonstration inside the gates
of the facility during a graduation ceremony at which Vice President Cheney was
delivering the commencement address. Legitimate security concerns justified the
exclusion of the protestors, who had no constitutional right to demonstrate
inside the gates of a military facility. Sussman v. Crawford, No. 07-2171, 2007
U.S. App. Lexis 12192 (2nd Cir.).
Newspapers who obtained injunction against
enforcement of ordinance regulating street vendors and door-to-door solicitors
as applied to prohibit street and door to door sales of newspapers were
prevailing parties entitled to an award of attorneys' fees even though the city
argued that the case was moot and that the injunction should be vacated because
the city voluntarily repealed portions of the law. Additionally, when the
alleged mootness was based on the city's voluntary act, the injunction did not
need to be vacated. A portion of the ordinance aimed at traffic safety, that
only regulated the conduct of street vendors' at traffic-signal controlled
intersections, however, was a constitutional restriction, and is
non-discriminatory and content-neutral, so that it was improperly found
unconstitutional by the trial court, and that portion of the decision was
reversed. Houston Chronicle Pub. Co. v. City of League City, Texas, No.
05-41689, 2007 U.S. App. Lexis 12432 (5th Cir.).
Barring members of a motorcycle club from
attendance at a city and festival association sponsored garlic festival, based
on a dress code barring the wearing of gang colors or other demonstrative insignia
did not violate their First Amendment rights. The plaintiffs were asked to
leave after entering the festival wearing vests with patches showing a skull
with wings and a top hat, and the words "Top Hatters" and
"Hollister." The court noted that the individual members of the club
themselves had different interpretations of what the insignia meant, so that
they did not amount to expressive content intended to convey any particular
message which was worthy of protection under the First Amendment. There was no
evidence that onlookers would understand any message conveyed, and barring the
plaintiffs from the festival did not interfere with their First Amendment right
of association, as they were still free to associate with each other. Villegas
v. City of Gilroy, No. 05-15725, 2007 U.S. App. Lexis 9907 (9th Cir.).
Town ordinance under which a woman was arrested
for distributing leaflets for "Jews for Jesus" without a permit in a
municipal park was unconstitutional on its face and as applied to the arrestee.
The ordinance placed a prior restraint on distributing religious literature and
engaging in conversation about religion in the park, and was more of an
absolute bar than a reasonable time, place, and manner regulation. The
ordinance had no standards or guidelines as to when a permit would be granted
or denied, so that it gave the town completely unfettered discretion.
Additionally, the town official authorized to grant such permits refused to
consider the arrestee's application to obtain one. New York v. Mendelson, No.
2006NA 00602, 2007 N.Y. Misc. Lexis 1973 (Dist. Ct. N.Y., First Dist. Nassau
County).
Two arrestees who both displayed an inverted U.S.
flag as a political statement failed to show that charges of flag desecration
and disorderly conduct were facially violative of the First Amendment, since
not all applications of these laws would impermissibly suppress protected ideas
or chill free speech. The laws were void for vagueness under the 14th
Amendment's due process clause however, because terms such as
"contempt," "disrespect," and "flag" were
not clearly defined and the statutes gave officers and prosecutors
impermissible "unfettered discretion" as to when to prosecute someone
for a violation. Roe v. Mulligan, No.4:06-cv-00300, 2007 U.S. Dist. Lexis 22051
(S.D. Iowa).
A city ordinance, which requires users of public
land in the city to sign an agreement to "bear all costs of policing,
cleaning up, and restoring the park," violated the First Amendment rights
of a protest organization who sought a permit for a demonstration. While the
fee charged for the permit was "nominal" and not content-based, and
therefore did not violate the First Amendment, this was not true of the promise
to "bear all costs" of policing and cleanup. That burden was, indeed,
content-based, the court reasoned, because the anticipated cost would depend on
the public's reaction to the speech involved. Further, this reimbursement
policy was "ripe for abuse" because the city, by deciding how best to
police an event and charge the speaker, is provided with "unlimited
discretion" which could be used to punish speakers based on the content of
their messages. The Nationalist Movement v. City of York, No. 06-2184,481 F.3d
178 (3rd Cir.).
A town ordinance prohibiting nude dancing
violated the First Amendment constitutional rights of a corporation to free
expression. The town and its officials failed to show that they relied on
evidence of negative secondary effects that such dancing would cause before
they passed the law, and also failed to show that the law served a substantial
governmental interest. The fact that the building in which the company operated
its business was damaged by fire while the lawsuit was pending did not alter
the result when the company had a clear intention to reopen and continue to
present the same type of entertainment. White River Amusement Pub v. Town of
Hartford, No. 06-0233-cv, 2007 U.S. App. Lexis 7150 (2nd Cir.).
While an acknowledged "pain in the
neck" to city officials who frequently opposed city policies showed that
he had been issued 26 municipal citations in a two-year period, he failed to
prove that the citations were issued because of a retaliatory motive or without
probable cause. There was no arguable issue about probable cause as to 25 of
the 26 citations, and even if the remaining one was issued without probable
cause, the plaintiff failed to show that it was issued because of his exercise
of his constitutional rights. Williams v. City of Carl Junction, Missouri, No.
06-2130, 2007 U.S. App. Lexis 7137 (8th Cir.).
Removal of man from public city council meeting
did not violate his First Amendment rights when he was removed because he was
being disruptive and not because of the views he expressed. Dehne v. City of
Reno, No. 04-17200, 2007 U.S. App. Lexis 4044 (9th Cir.).
Protesters who wanted to engage in non-disruptive
expressive activity during a Memorial Day air show at a city airport were
entitled to injunctive relief against the enforcement of rules that would
prevent such activities. Wickersham v. City of Columbia, No. 06-1922, 2007 U.S.
App. Lexis 6600 (8th Cir.).
City's ordinances restricting the operation of
sexually oriented businesses within 800 feet of residences, schools, churches,
and other such businesses, as well as other designated areas, were adequately
supported by studies from nine cities concerning the alleged harmful secondary
effects of adult businesses, as well as data concerning land use in the city.
The ordinances were upheld as narrowly tailored to achieve substantial
governmental interests. Further proceedings were ordered to determine whether
the ordinances allowed sufficient alternative opportunities for communication.
H and A Land Corp. v. City of Kennedale, Tex., No. 05-11474, 2007 U.S. App. Lexis
3941 (5th Cir.).
Small town's zoning law restricting the available
locations for adult book stores was not unconstitutionally vague, and provided
the owner of one such store with adequate alternative locations to move to. IL
One News, Inc. v. City of Marshall, No. 06-1828, 477 F.3d 461 (7th Cir. 2007)
Public university could lawfully require
off-campus "solicitors" to seek prior approval for on-campus
activities and to limit their activities to a sidewalk in front of the student
union. Application of these rules to prohibit an evangelist from preaching on
the lawn of the campus library did not violate his First Amendment free speech
rights. The evangelist failed to show that any other uninvited outsider was
ever allowed to use that lawn for any activity. Gilles v. Blanchard, No.
06-1441, 2007 U.S. App. Lexis 3234 (7th Cir.).
City's security plan, designed to protect a NATO
conference from possible terrorism or violent protests, did not violate the
First Amendment rights of demonstrators when it was content neutral, there was
a significant security interest involved, and the restrictions on demonstrating
were limited to the immediate area of a hotel at which the conference was
taking place. Citizens for Peace in Space v. City of Colorado Springs, No.
05-1391, 2007 U.S. App. Lexis 4441 (10th Cir.).[N/R]
City and FBI agents in their official capacities
were not liable for allegedly violating the First Amendment rights of an
anti-abortion group and three individuals involved in a "public education"
program on abortion during which they used two trucks that displayed pictures
of aborted fetuses, along with a third vehicle that looked similar to a police
car. Police officers and individual FBI agents, however, were not entitled
to summary judgment on claims that they detained the individuals without
probable cause, because there were genuine issues as to whether they did so
based on concerns about public safety or in retaliation for the individual's
speech. Center for Bio-Ethical Reform, Inc. v. City of Springboro, No. 06-3284,
2007 U.S. App. Lexis 3689 (6th Cir.).[N/R]
A city ordinance regulating the playing of sound
devices gave fair notice to anti-abortion activists of prohibited conduct, so
that the use of the ordinance to bar them from playing a recording near an
abortion clinic of a 911 emergency call concerning a woman whose bleeding could
not be stopped following an abortion was not unreasonable. Gaughan v. City of
Cleveland, No. 06-3010, 2007 U.S. App. Lexis 281 (6th Cir.).[N/R]
In lawsuit challenging, on the basis of the
constitutional right of privacy, a city ordinance criminalizing a "live
sex act" business, the trial court improperly reached the merits of the
case, and ruled that the business owner's customers could not assert a claim
for relief under "any conceivable" set of allegations. Further
proceedings ordered. Fleck & Assocs., Inc. v. Phoenix, No. 05-15293, 471
F.3d 1100 (9th Cir. 2006) [N/R]
Federal appeals court upholds issuance of
preliminary injunction against enforcement of New York City ordinance
prohibiting sale to or possession by persons aged 18-21 of indelible markers
and aerosol spray paint, which was intended to help prevent graffiti. The trial
court found that the plaintiffs were likely to prevail on the merits of their
claims that the ordinance violated their First Amendment right of freedom of
expression, and also violated their right to equal protection of law. Vincenty
v Bloomberg, No. 06-2106, 2007 U.S. App. Lexis 2481 (2d Cir.). [N/R]
An officer could not reasonably have believed
that he had probable cause to arrest someone at a public township board meeting
simply for the mild profanity of saying "God damn" while speaking to
the board. The First Amendment protected this expression by the husband of an
owner of a towing company complaining about the fact that the police chief had
stopped using that company as the municipality's towing company. Leonard v.
Robinson, No. 05-1728, 2007 U.S. App. Lexis 2275 (6th Cir.). [N/R]
Liquor establishment's owner failed to show that
state troopers and city police officers harassed him and his business because
of his support for the incumbent sheriff and personal friendship with the city
police chief, who the defendants opposed. The court ruled that the personal
friendship did not qualify as protected conduct for purposes of asserting a
First Amendment claim, and that the plaintiffs failed to present any evidence
that the defendants even knew about the business owner's political support for
the sheriff. Smith v. Michigan State Police Troopers, No. 1:05-cv-64, 2006 U.S.
Dist. Lexis 78780 (W.D. Mich.). [N/R]
Two undercover police officers who arrested a man
for offering to sell them basketball tickets outside a university arena did not
violate his First Amendment rights. The plaintiff had admitted to being a
"peddler" as defined by a county ordinance by pleading guilty to
criminal charges made against him, and the ordinance, which merely required
that such peddlers obtain a permit, was not an unconstitutional restraint on
protected First Amendment activity, but was instead merely aimed at regulating
traffic to advance safety in a public area. Wilson v. Lexington-Fayette Urban
County Government, No. 05-5923, 2006 U.S. App. Lexis 25617 (6th Cir.). [N/R]
Police had probable cause to arrest protestors
after they had given a minimum of four orders to disperse which the crowd did
not comply with. The federal appeals court ruled that the officers need not
have individualized suspicion that each and every member of the crowd had heard
the orders, and that it was sufficient that they had a reasonable belief that a
"fair probability" existed that they had. Lyons v. City of Seattle,
No. 04-35808, 2006 U.S. App. Lexis 31707 (9th Cir.). [N/R]
Police officers had probable cause to arrest
members of a family and other persons who allegedly failed to comply with their
orders to clear a sidewalk while attending a crowded outdoor festival. The
arrests did not violate either the Fourth Amendment or the arrestees' First
Amendment rights. Gomez v. City of Whittier, No. 04-56944, 2006 U.S. App. Lexis
29423 (9th Cir.). [N/R]
City's actions in removing
anti-homosexuality protesters from overpasses based on a noticeable effect on
traffic on the highway below did not violate protestors' constitutional rights
of free speech or freedom of religion. The city's actions were found to be
content neutral, and needed to serve a compelling interest in the safety of
motorists. Ovadal v. City of Madison, No. 05-4723, 2006 U.S. App. Lexis
28682 (7th Cir.). [N/R]
Woman's First Amendment rights were not violated
by her arrest for refusing to leave government office after she was asked to do
so. While the office was open to the public, it was not a "public
forum," and it was reasonable to ask her to leave because the person she
wished to see was gone that day. She was not asked to leave based on the
content of what she had to say nor arrested on that basis. Additionally, even
if these actions had violated her rights, the defendants were entitled to
qualified immunity since they could reasonably believe that she could be asked
to leave and arrested, under these circumstances, for refusal to do so. Helms
v. Zubaty, No. 2005-56, 2006 U.S. Dist. Lexis 72052 (E.D. Kentucky). [N/R]
While an arrestee stated a valid claim for
unlawful retaliation by alleging that an officer seized his camera in response
to his exercise of his First Amendment rights by filing a lawsuit against
police, the officer was still entitled to qualified immunity because the right
allegedly violated was not clearly established at the time of the incident.
Skoog v. County of Clackamas, No. 04-35087, 2006 U.S. App. Lexis 28683 (9th
Cir.). [N/R]
Officers were not entitled to qualified immunity in
lawsuit claiming that they used excessive force and violated the First
Amendment rights of Native American demonstrators by dispersing their protest
adjacent to a public highway. Jones v. McMahon, No. 05-1830, 465 F.3d 46 (2d
Cir. 2006). [2006 LR Dec]
Las Vegas city ordinances barring solicitation
and setting up of tables for expressive purposes in downtown area on pedestrian
mall found to violate First Amendment. ACLU of Nevada v. City of Las Vegas, No.
05-15667, 05-15767, 2006 U.S. App. Lexis 26006 (9th Cir.). [2006 LR Dec]
Officers who claimed that they relied on their
commander for a determination that they had probable cause to arrest protesters
were not entitled to qualified immunity when they observed the same events and
actions by the protesters that their commander had. Under those circumstances,
their reliance on the commander for a determination of probable cause would be
unreasonable. Killmon v. City of Miami, No. 06-11208, 2006 U.S. App. Lexis
24523 (11th Cir.). [N/R]
A minister, a fellow Christian, and an
unincorporated religious association did not have a valid claim for violation
of their First Amendment rights based on the closure of sidewalks and other
restrictions at an annual ceremony in Washington, D.C., the Red Masses, a
religious ceremony held for judges. The restrictions imposed were content
neutral and justified by legitimate security concerns, and the plaintiffs,
while unable to hold a demonstration exactly where they wanted in relationship
to the ceremony, had ample alternative means of expressing their opinions.
Mahoney v. U.S. Marshals Service, No. 05-1786, 2006 U.S. Dist. Lexis 69131
(D.D.C.). [N/R]
City of Gary, Indiana's ordinance restricting
sexually oriented businesses upheld against challenge. Court finds that the law
was properly directed at the secondary effects of the presence of such
businesses, and the city's evidence of those effects were sufficient to survive
scrutiny. Andy's Restaurant & Lounge. v. City of Gary, No. 05-2225, 2006
U.S. App. Lexis 25352 (7th Cir.). [N/R]
City's adult zoning ordinance requiring sexually
oriented businesses to remain a distance away from residences, schools, child
care centers, parks or churches was content-neutral and aimed at the secondary
effect of such businesses, such as crime and decreased property values, but the
court finds that there remained genuine issues as to whether it left an
adequate number of alternative avenues of communication. Central Avenue, Inc.
v. City of Charlotte, North Carolina, No. 3:02CV00014, 2006 U.S. Dist. Lexis
68074 (W.D.N.C.). [N/R]
Officer did not have probable cause to arrest a
village council member for disorderly conduct one month after they had a
conversation about the member moving his vehicle. The arrestee's comments did
not amount to fighting words, so an arrest on the sole basis of the
conversation violated his First Amendment rights. Kinkus v. Village of
Yorkville, No. C2-05-930, 2006 U.S. Dist. Lexis 70451 (S.D. Ohio). [N/R]
In lawsuit against city by persons arrested
during national political convention, court denies city's application to submit
a section of a brief and supporting declarations for the brief under seal,
ruling that there was a First Amendment right of access to these materials, and
the defendants failed to show that there were other factors overcoming that
right of access. Schiller v. City of New York, No. 04 Civ. 7922, 2006 U.S.
Dist. Lexis 70479 (S.D.N.Y.). [N/R]
Evidence supported jury verdict that a series of
traffic stops, equipment compliance citations, and a vehicle impoundment were
carried out against a California man to unlawfully retaliate against him for
his protected free speech activity of complaining about a California Highway
Patrol officer to his department. Federal appeals court upholds award of
$500,000 in compensatory damages, but rules that punitive damage awards of $4
million were excessive and must be substantially reduced. Plaintiff also
receives $800,000 in attorneys' fees. Grassilli v. Barr, No. D044931, 2006 Cal.
App. Lexis 1384 (Cal. 4th App. Dist.). [2006 LR Nov]
Off-duty police officer, in full uniform, acted
under color of law while acting as a security guard at a ballpark, and placing
patron under arrest after he refused to cease heckling one of the ball players.
Trial court improperly granted qualified immunity to officer, and there were
factual issues as to whether he had probable grounds for an arrest, whether the
arrest violated the arrestee's free speech rights, and whether the officer used
excessive force in ejecting him from the stadium. Swiecicki v. Delgado, No.
05-4036, 2006 U.S. App. Lexis 23454 (6th Cir.). [2006 LR Nov]
City ordinances governing expression in school
zones and regulation of "parades" were unconstitutional time, place,
and manner regulations when used to threaten the ability of anti-abortion
demonstrators to peacefully engage in protests near an abortion clinic. Knowles
v. City of Waco, No. 05-50598, 2006 U.S. App. Lexis 21691 (5th Cir.). [N/R]
Officers were not entitled to qualified immunity
in lawsuit claiming that they forced demonstrators against alleged police
brutality to march on the sidewalk after they had been granted a permit to
march in the street, on the basis of the content of their message. Court finds
that no reasonable officer could have believed that they could constitutionally
discriminate against demonstrators based on the content of their speech and for
reasons not related to the safety of vehicular or pedestrian traffic. Seattle
Affiliate of Oct. 22nd Coalition to Stop Police Brutality v. City of Seattle,
No. C04-0860, 430 F. Supp. 2d 1185 (W.D. Wash. 2006). [N/R]
In a lawsuit filed by a "street
preacher" against a state university's rules requiring permits for
non-university entities to engage in certain expressive activity on campus, a
federal appeals court held that the schools outdoor common areas were a public
forum, that the requirement that non-university entities obtain permits did not
violate the plaintiff's right to free speech, and that the school's requirement
of three-days advance notice was also not a violation of his rights, but that
the school's limit of five days per speaker per semester was a violation of the
First Amendment. Bowman v. White, No. 04-2299, 444 F. 3d 967 (8th Cir. 2006).
[N/R]
Conservation officers had probable cause to seek
prosecution of man who allegedly pointed a gun at them after criticizing their
job performance, and they were entitled to qualified immunity on his malicious
prosecution and First Amendment retaliation claims, given that he was
subsequently convicted on some of the charges he was indicted on based on their
grand jury testimony. Barnes v. Wright, No. 04-6288, 449 F.3d 709 (6th Cir.
2006). [2006 LR Aug]
State troopers had probable cause to arrest
anti-war protestors for open "lewdness" for stripping down to their
thong underwear and forming a human pyramid during a campaign visit to their
town by President Bush prior to the 2004 election. Further, even if the
Pennsylvania open lewdness statute was unconstitutional under these
circumstances, the troopers did not violate any clearly established
constitutional right, because there was no prior case law establishing a right
to demonstrate in thong underwear. The trial court further found that the
lewdness law was not aimed at expression in violation of the First Amendment,
as it prohibited all public lewdness and indecent conduct, whether or not
carried out for purposes of expression. Egolf v. Witmer, No. Civ.A. 04-5695,
421 F. Supp. 2d 858 (E.D. Pa. 2006). [N/R]
U.S. Supreme Court: a civil rights lawsuit for
retaliatory prosecution in violation of a person's First Amendment rights must
be based on, among other things, the absence of probable cause to prosecute for
the asserted criminal charges. Hartman v. Moore, No. 04-1495, 126 S. Ct. 1695
(2006). [2006 LR Jul]
In a lawsuit by man claiming a city
"chilled" his First Amendment rights by gathering and filing
information about his political activity as early as the late 1960s, and
sharing this information with other agencies until March of 2000, his claims
accrued, for purposes of a two-year Colorado statute of limitations on the date
on which, based on his own admissions, he had knowledge that the files existed.
His claims were therefore time-barred under the statute, when his own
admissions showed that he had sufficient knowledge that the files existed by
1998, "at the latest," and he did not file his lawsuit until 2003.
Vigil v City and County of Denver, #04-1414, 162 Fed. Appx. 809 (10th Cir.
2006). [N/R]
A municipal ordinance requiring door-to-door
canvassers who plan to "hand pamphlets or other written material" to
residents or discuss with them "issues of public or religious
interest" to first register with the police department violates the First
and Fourteenth Amendments' guarantee that no state shall abridge the freedom of
speech. Serv. Employees Int'l Union v. Municipality of Mt. Lebanon, No.
04-4646, 2006 U.S. App. Lexis 10596 (3d Cir.). [2006 LR Jun]
While the statements "Allah praise the
Patriot Act," and "JIHAD on the First Amendment," painted on the
side of an arrestee's car, were protected speech under the First Amendment,
there was a genuine factual issue as to whether other statements on the
vehicle, such as that the driver was 'a fucking suicide bomber communist
terrorist!" with "W.O.M.D. on Board" were a "true
threat" not protected as free speech. Officers who arrested him were
therefore entitled to qualified immunity from liability as to his claim that
his arrest violated his First Amendment rights. Fogel v. Grass Valley Police
Department, No. Civ. 05-0444, 415 F. Supp. 2d 1084 (E.D. Cal. 2006). [N/R]
Suspect's arrest on a charge of disorderly
conduct after he placed "tombstones" bearing the names of his
neighbors on his lawn and engaged in an altercation with one of his neighbors
in an officer's presence was supported by probable cause. Factual issues as to
whether the references to the neighbors on the "tombstones" were
"fighting words" or protected First Amendment speech barred summary
judgment for officer on arrestee's claim that his rights were violated when he
was asked to take down the "tombstones" placed in his yard. Purtell
v. Mason, No. 04C7005, 412 F. Supp. 2nd 903 (N.D. Ill. 2006). [N/R]
City's interpretation and enforcement of noise
ordinance to prevent Christian preacher from speaking in downtown pedestrian
mall loud enough to be heard 25 feet away violated his First Amendment rights.
The mall was a traditional public forum, and the preacher's level of speech was
not inappropriate for the circumstances. The ordinances also improperly failed
to give clear notice of what was prohibited. Deegan v. City of Ithaca, No.
04-4708, 2006 U.S. App. Lexis 8372 (2d Cir.). [2006 LR May]
City ordinance regulating mass gatherings and
parades violated the First Amendment when there were no objective standards for
determining what traffic control fees were to be paid by parade sponsors, and
the ordinance required that applications for parade permits be made 30 days in
advance of the event. The court also ruled that the absence of any provision
providing for circumstances in which persons were unable to pay the parade
application fee rendered the ordinance unconstitutional. Sullivan v. City of
Augusta, No. CV-04-32, 406 F. Supp. 2d 92 (D. Maine. 2005). [N/R]
City was not entitled to summary judgment in
lawsuit by protester prohibited by city from displaying an anti-homosexuality
banner on highway overpasses, as there were genuine issues of fact as to
whether the city had acted for the purpose of ensuing traffic safety based on
the distraction the banner presented or on the basis of the content of the
message displayed, in violation of the First Amendment. Ovadal v. City of
Madison Wisconsin, No. 04-C-322, 401 F. Supp. 2d 949 (W.D. Wis. 2005). [N/R]
Assistant police chief's alleged action of
ordering arrest of 386 D.C. demonstrators gathered in a park, without providing
either an order to disperse or an opportunity to do so, and absent
particularized probable cause to arrest each of them, violated their clearly
established constitutional rights. Police chief who "tacitly"
approved the assistant chief's arrest order could also be liable, depending on
whether or not he knew that the park had not been cleared of people who had not
been observed breaking any law. Barham v. Ramsey, No. 04-5388, 04-5389, 2006
U.S. App. Lexis 807 (D.C. Cir.). [2006 LR Mar]
Federal government's civilian airline passenger
identification policy does not violate passengers' constitutional rights in
requiring them to present identification or submit to screening searches or be
denied the ability to board airline flights. No violation is found of the
constitutional right to travel, the Fourth Amendment protection against
unreasonable searches and seizures, the First Amendment, or due process.
Gilmore v. Gonzales, No. 04-15736, 2006 U.S. App. Lexis 1856 (9th Cir.). [2006
LR Mar]
Purported police harassment of witness who
claimed to have witnessed two police officers murdering a woman was an insufficient
basis for a civil RICO claim. The plaintiff's alleged loss of employment income
because of false arrest and malicious prosecution, and his expenses for
attorneys' fees to defend himself were not an injury to "business or
property" as required for standing to bring a RICO lawsuit. Federal
appeals court also upholds dismissal of plaintiff's First Amendment civil
rights claim and state law claims as untimely. Evans v. City of Chicago, No.
03-3844, 2006 U.S. App. Lexis 264 (7th Cir.). [2006 LR Feb]
Information concerning whether or not the
plaintiff was listed in a Terrorist Screening Database (TSDB) maintained by the
FBI was protected from disclosure under a privilege for law enforcement
investigatory files. FBI's alleged surveillance of an Israeli native in the
U.S. did not violate his First Amendment rights. FBI agents were also not
liable for alleged harassment by his neighbors, who were under the mistaken
belief that he was Iranian, and when there was no evidence that any FBI agent
was aware of the plaintiff's particular political beliefs. Raz v. Mueller, No.
CIV 02-5184, 389 F. Supp. 2d 1057 (W.D. Ark. 2005). [N/R]
A woman arrested by an officer during a protest
demonstration supporting a black radical convicted of murdering a police officer
failed to show that her arrest was motivated by his hostility to the political
views of the demonstrators, as required to support a claim for violation of the
First Amendment. Instead, the evidence showed that he had probable cause to
arrest her for stepping in front of him in order to prevent the arrest of
another demonstrator, then fleeing, who had thrown a flaming object at him. The
woman's actions caused the officer to collide with her, and both to fall to the
ground, preventing him from apprehending the fleeing suspect. Mims v. City of
Eugene, No. 04-35042, 145 Fed. Appx. 194 (9th Cir. 2005). [N/R]
Disputed issue as to whether man's
characterization of other participants in town meeting as "assholes"
and his invitation to "make" him sit down were fighting words not
entitled to First Amendment protection barred summary judgment on his claim
that police officers violated his rights when they forced him to leave the
meeting. Nolan v. Krajcik, No. CIV.A.02-12228, 384 F. Supp. 2d 447 (D. Mass. 2005).
[N/R]
Federal appeals court: California statute, in
imposing criminal penalties for making knowingly false complaints of misconduct
against police officers, while failing to prohibit knowingly false statements
supportive of the same officers, violates the First Amendment through improper
viewpoint discrimination. Chaker v. Crogan, No. 03-56885, 2005 U.S. App. Lexis
23728 (9th Cir.). [2005 LR Dec]
Campus police officer who arrested
"campus-evangelist" for disorderly conduct for making rude and
confrontational speech to student crowd calling them "fornicators,"
"whores," and drunken "little devils" was entitled to
qualified immunity even if the speech was possibly protected by the First
Amendment. Given the manner of the speech and the crowd's reaction, a
reasonable officer could have believed there was probable cause for an arrest.
Gilles v. Davis, No. 04-2542, 2005 U.S. App. Lexis 23001 (3d Cir.). [2005 LR
Dec]
City's alleged unwritten policy banning signs and
banners on highway overpasses was not unconstitutional. Appeals court rejects
constitutional claims of anti-abortion protester barred from displaying her
banner there. Faustin v. City of Denver, #04-1025, 2005 U.S. App. Lexis 19834
(10th Cir.). [2005 LR Nov]
Sheriff and two of his deputies were properly
denied qualified immunity for allegedly carrying out a campaign of harassment
and retaliation, including surveillance of homes and business, accessing of
confidential government information, issuance of false traffic citations, and
the seeking of an arrest warrant on "trumped-up" environmental
charges against two businessmen in retaliation for their support of a ballot
referendum that would have reduced the powers of the sheriff's department.
Bennett v. Hendrix, #04-12256, 2005 U.S. App. Lexis 19466 (11th Cir.). [2005 LR
Nov]
Towing service operator failed to show that new
sheriff modified his towing area in retaliation for his support of another
candidate for sheriff, or that the sheriff and his undersheriff engaged in a pattern
of racketeering activity in violation of RICO in connection with maintenance of
a list of favored tow service operators. Roger Whitmore's Auto. Serv. v. Del
Re, #04-1978, 2005 U.S. App. Lexis 20296 (7th Cir.). [2005 LR Nov]
City's ordinance requiring permits for public
parades or demonstrations was in violation of the First Amendment because it
contained a 30-day application period, it applied to small groups which would
not involve traffic or crowd control issues, and it imposed strict liability on
all participants, imposing punishment even on those unaware that a particular
demonstration had no permit. American-Arab Anti-Discrimination Comm. v. City of
Dearborn, No. 04-1433, 418 F.3d 600 (6th Cir. 2005). [2005 LR Oct]
Minority civil rights advocacy organization was
not entitled to an injunction against prosecutors and police officers
questioning, threatening, or detaining its members while they engaged in lawful
advocacy of the rights of African-Americans in criminal cases when it failed to
show the likelihood of the future reoccurrence of alleged past harassment.
NAACP v. Brackett, No. 04-1059, 130 Fed. Appx. 648 (4th Cir. 2005). [N/R]
Christian minister banned by city, under threat
of arrest, from displaying anti-homosexuality signs on pedestrian overpasses
above highways was entitled to further proceedings to determine whether the
city was truly motivated by traffic safety considerations, or whether the
action was based on the content of his message. Ovadal v. City of Madison, No. 04-4030
2005 U.S. App. Lexis 14554 (7th Cir.). [2005 LR Sep]
City ordinance which prohibited all meetings,
parades, or assemblies on public streets or sidewalks without a permit was
unconstitutional to the extent that it applied to small groups and absolutely
prohibited all such activities on Sunday mornings. Cox v. City of Charleston,
No. 03-1782, 2005 U.S. App. Lexis 15255 (4th Cir.). [2005 LR Sep]
The closing of one corner of an intersection
during a visit by President Bush to a city was a reasonable time, place, and
manner restriction on protest speech and did not violate the First Amendment.
Factual issues, however, as to whether a police officer had warned a protester
that crossing the street was prohibited before arresting her for doing so
barred granting qualified immunity to the officer on a false arrest claim.
Burnett v. Bottoms, No. CV031891, 368 F. Supp. 2d 1033 (D. Ariz. 2005). [N/R]
City's declaration of civil emergency and
prohibition of access to parts of downtown Seattle during 1999 World Trade
Organization conference there upheld as a constitutional time, place, and
manner restriction on free speech in light of violent acts by protesters.
Menotti v. City of Seattle, No. 02-35971, 409 F.3d 1113 (9th Cir. 2005). [2005
LR Aug]
Township's ordinance, providing for warrantless
health and safety inspections of sexually oriented businesses, and disclosure
of information concerning all partners and shareholders in such businesses, did
not violate the First and Fourteenth Amendment, and was properly aimed at
minimizing the adverse secondary effects caused by the establishments. Deja Vu
of Cincinnati v. Union Township, No. 00-4420, 2005 U.S. App. Lexis 11807 (6th
Cir.). [N/R]
Bar patron's "animated" criticism of
police officers' conduct to a crowd of bar patrons outside following a bar
fight and some arrests, was not protected speech because it was aimed at
inciting or producing "lawless action" and likely to result in such
action. Further, even if his speech was constitutionally protected, the officer
was entitled to qualified immunity for issuing the bar patron with a disorderly
conduct citation, since the case law did not clearly establish that doing so
was illegal. Carmack v. Trombley, No. CIV. 04-70110, 363 F. Supp. 2d 904 (E.D.
Mich. 2005). [N/R]
City police officer did not violate the First
Amendment rights of motorcycle club members in assisting festival in city park
in expelling them for violating the festival's dress code by wearing club
vests. The wearing of the vests did not involve expressive association
protected by the First Amendment, the court rules, in the absence of any
evidence that the club advocated a specific viewpoint. Villegas v. City of
Gilroy, No. C01-20720, 363 F. Supp. 2d 1207 (N.D. Cal. 2005). [N/R]
City's prohibition on the placing of leaflets on
car windshields or elsewhere on vehicles without owner's consent did not
violate the First Amendment, and was a reasonable content-neutral time, place
and manner restriction. Jobe v. City of Catlettsburg, No. 04-5222, 2005 U.S.
App. Lexis 7890 (6th Cir.). [2005 LR Jul]
County executive order prohibiting persons
previously convicted of sex crimes involving minors from receiving permits for
performance activity such as balloon sculpture that would "entice"
children to gather around was not a violation of the First Amendment. Hobbs v.
County of Westchester, No. 03-7985, 397 F.3d 133 (2nd Cir. 2005). [2005 LR May]
Arrestee failed to satisfy her burden of
presenting proof that officers "stalked" and "harassed" her
in retaliation for having filed a previous lawsuit against police arising out
of an arrest. The evidence she presented, which concerned unidentified police
officers and vehicles, was insufficient, as it did not alleged adverse actions
by particular officers or show that her exercise of her First Amendment rights
were "chilled." Marczeski v. Gavitt, No. 3:02 CV 894, 354 F. Supp. 2d
190 (D. Conn. 2005). [N/R]
Appeals court upholds injunction against city
using ordinance prohibiting structures on a public right of way to prohibit,
under threat of arrest or citation, union's use of a large "rat"
balloon during demonstrations against a car dealership for alleged unfair labor
practices. Tucker v. Fairfield, No. 03-4508 2005 U.S. App. Lexis 2228 (6th
Cir.). [2005 LR Apr]
Probable cause existed to arrest demonstrators
who burned a professional baseball team (the Cleveland Indians) mascot in
effigy outside a stadium, and the arrests were an "incidental
restriction" on the First Amendment free speech rights of the
demonstrators, who claimed that the team's Indian logo was disparaging to
Native Americans and their culture. This incidental restriction was no greater,
the court found, than what was essential to protect public safety. Bellecourt v.
City of Cleveland, No. 2003-1202, 820 N.E.2d 309 (Ohio 2004). [N/R]
An arts festival, held under a permit on
barricaded city streets, which was free and open to the public, was a
traditional public forum for First Amendment purposes. Off-duty police officer
in uniform, serving as security for the private group holding the festival,
violated a man's rights by threatening him with arrest for walking around there
wearing a sign with a religious message and distributing religious leaflets.
Parks v. Columbus, No. 03-4096, 2005 U.S. App. Lexis 1219 (6th Cir.).
[2005 LR Mar]
Police officers could not be personally liable
for the arrest of a man under a New York state harassment statute, for mailing
"annoying" written materials on religious and political issues to a
candidate for Lieutenant Governor. While the trial court believed that the
statute, when applied in this manner, violated the arrestee's First Amendment
rights, the officers did not have fair notice, at the time of the arrest, that
the courts would "inevitably" declare the statute unconstitutional.
Vives v. City of New York, No. 03-9270, 393 F.3d 129 (2nd Cir. 2004).
[2005 LR Mar]
Even if Fourteenth Amendment did not directly
limit the actions of the District of Columbia against demonstrators protesting
against the policies of the World Bank, the International Monetary Fund, and
the U.S. government, because the District is not a "state," a
complaint which alleged that D.C. officials and "other state or local
governments" conspired together or aided and abetted each other in
violating the demonstrators' Fourteenth Amendment rights was sufficient to
state a possible basis of recovery against the District, so that judgment on
the pleadings was inappropriate. Chang v. United States, No. CIV.A. 02-2010,
338 F. Supp. 2d 20 (D.D.C. 2004). [N/R]
Police officers' decision to prohibit abortion
protesters from carrying signs showing aborted fetuses in Halloween parade, and
subsequent confiscation of those signs was an impermissible violation of the
protesters rights of free speech and assembly and the officers' actions were
not "narrowly tailored" to the public safety concerns, when
spectators' hostile reactions were only heckling and non-violent threats. Grove
v. City of York, Pennsylvania, No. CIV. 1:CV-03-198, 342 F. Supp. 2d 291 (M.D.
Pa. 2004). [N/R]
City's denial of permission to anti-abortion
group to hold a parade on a specific street on the basis that the street had
been closed to "facilitate" safe protests was improper when street
closing was not allowable under requirements of an applicable ordinance. Group
was only entitled, however, to nominal damages of one dollar and an award of
attorneys' fees, since claim for estimated lost "freewill offering"
revenue was not supported, since such offerings had not been solicited at
earlier such parades. Injunctive relief was also denied, as there was an
insufficient showing that there was a likelihood of recurrence of the alleged
violations. Lippoldt v. Cole, #01-1226, 311 F. Supp. 2d 1263 (D. Kan. 2004).
[N/R]
Protester's detention during a demonstration was
not "egregious" enough to violate his Fourteenth Amendment due
process rights, when the detention only lasted a half hour and he returned to
the protest and continued with the exercise of his First Amendment rights after
his release. Bonilla v. Vivoni Del Valle, Civil No. 03-2265, 336 F. Supp. 2d
159 (D. Puerto Rico 2004). [N/R]
Building inspector was not entitled to qualified
immunity for his nonconsensual warrantless entry into business premises not
open to the public after business hours, or on claims that he did so in
retaliation for the business owners' association with a member of the Village
council in violation of their First Amendment rights. Mimics, Inc. v. Village
of Angel Fire, No. 03-2214, 2005 U.S. App. Lexis 15 (10th Cir. 2005). [2005 LR
Feb]
Police chief was not entitled to qualified
immunity in case where a mass arrest was allegedly made of a group of
demonstrators in a park despite the fact that no dispersal order had been
given. Even if he was unaware of the absence of a dispersal order, his approval
of the arrests was not objectively reasonable in the alleged absence of any
investigation by him of the justification for the arrest. Federal trial court
states that when a group gathered in a public place contains persons who have
not been obstructive or violent, a mass arrest is improper in the absence of a
fair warning or notice and the opportunity to comply with an order to disperse.
Barham v. Ramsey, No. Civ.A. 02-2283, 338 F. Supp. 2d 48 (D.D.C. 2004). [N/R]
Massachusetts state statute regulating speech and
protest activities within a "buffer zone" around abortion clinics and
health care facilities performing abortions did not violate the First
Amendment, as it was a valid time, place, and manner restriction and was
content neutral. Police enforced the statute in the same manner as to
protesters with differing views on abortion who violated the statute, and only
made arrests after giving multiple warnings. McGuire v. Reilly, No. 03-2389,
386 F.3d 45 (1st Cir. 2004). [N/R]
"Critic" of city officials did not show
that an investigation of him, and his subsequent arrest and prosecution for
alleged involvement in constitutionally unprotected flyers, accusing city
officials of "drug abuse, adultery, or pedophilia" were in
unconstitutional retaliation for his prior circulation of First
Amendment-protected flyers accusing the mayor and others of official
misconduct. Tucker v. City of Richmond, No. 03-6336, 388 F.3d 216 (6th Cir.
2004). [2005 LR Jan]
Policy which prohibited "animal rights"
demonstrator from protesting at a state-owned performance facility outside of a
designated "free expression zone" away from the building entrance was
unconstitutional on its face, and violated his free speech rights. Kuba v. 1-A
Agric. Ass'n, No. 02-16989, 387 F.3d 850 (9th Cir. 2004). [2005 LR Jan]
Police department's use of officers mounted on
horses to control crowd of demonstrators protesting an appearance by President
Bush to the city was not unreasonable. The use of mounted officers, by itself,
did not prevent demonstrators from exercising their First Amendment right to
free speech and assembly. Plaintiffs were not entitled to an injunction against
future use of mounted officers in similar circumstances in the absence of
evidence that protester's future speech would be prevented on the basis of its
viewpoint or content. Democracy Coalition v. City of Austin, No.
03-03-00235-CV, 141 S.W.3d 282 (Tex. App. 2004).[N/R]
City's policy requiring everyone participating in
a protest demonstration to submit to a metal detector search violated both the
First and Fourth Amendment. Bourgeois v. Peters, #02-16886, 2004 U.S. App.
Lexis 21487 (11th Cir. 2004). [2004 LR Dec]
Indiana's curfew statute violated minor's First
Amendment rights, even with the inclusion of an affirmative defense for minors
arrested while going to or from First Amendment protected activities, since
subjecting them to the possibility of arrest may improperly "chill"
such activities, federal appeals court rules. Hodgkins v. Peterson, No.
01-4115, 355 F.3d 1048 (7th Cir. 2004). [2004 LR Dec]
Officer violated arrestee's First Amendment
rights by arresting him for disorderly conduct for yelling obscenities at a
Canadian flag being carried in parade for the purposes of expressing his
political opinion about the Canadian government's lack of support for U.S.
military actions in Iraq. Officer was not entitled to qualified immunity from
liability, as the arrestee's comments did not constitute "fighting
words," and a reasonable officer would have known that there was no
probable cause for an arrest. Levine v. Clement, No. CIV. A. 03-30206-KPN, 333
F. Supp. 2d 1 (D. Mass. 2004). [N/R]
City's action of issuing a convicted sex offender
a letter permanently banning him from all city parks did not violate his First
Amendment rights or his right to due process of law. The action was not aimed
at punishing the offender for his thoughts, a federal appeals court ruled, but
rather was aimed at preventing his conduct of going to parks to search for
children to satisfy deviate desires, and any impact on his First Amendment
right to freedom of thought was incidental. The court also found that the
city's action was the narrowest reasonable means of promoting a compelling
interest of protecting children from him when he admitted that he was a
"sexual addict" and would always have "inappropriate urges"
towards children. Doe v. City of Lafayette, Indiana, No. 01-3624, 377 F.3d 757
(7th Cir. 2004). [N/R]
Plaintiff in federal civil rights lawsuit against
officers and city claiming summons was improperly issued to him in retaliation
for his exercise of First Amendment rights and because of racial animus was not
entitled to disclosure of a defendant officer's home address for the purpose of
asking whether neighbors had overheard officer make racist remarks. Trial court
also rejects plaintiff's arguments that plaintiff was entitled to disclosure of
officer's home address for the purpose of aiding his investigation of her
ability to pay punitive damages. The officer's interests in privacy and safety
outweighed the plaintiff's "extremely weak" interest in obtaining her
home address, the court rules. Collens v. City of New York, 222 F.R.D. 249
(S.D.N.Y. 2004). [N/R]
City ordinance creating an offense of knowing and
willful "abusive or derogatory" conduct towards police officers was
not a violation of an arrestee's First Amendment rights. It was not
unconstitutionally overbroad, and the court could narrowly construe it to only
prohibit "fighting words" which are unprotected speech. Appeals court
upholds conviction of Ohio resident for referring to a police officer as a
"the real cock sucker." State v. Baker, No. CA2002-11-286, 809 N.E.2d
67 (Ohio App. 12th Dist. 2004). [N/R]
There were genuine issues of fact as to whether
police officers arresting anti-abortion demonstrators who had chained
themselves together had used excessive force, precluding summary judgment in
the demonstrators' federal civil rights lawsuit. There were also factual issues
as to whether the town failed to adequately supervise its officers, but no
evidence that the town inadequately trained its officers on the use of force.
Amnesty America v. Town of West Hartford, #03-7332, 361 F.3d 113 (2nd Cir.
2004). [N/R]
Federal appeals court upholds denial of
injunction to change a designated area for demonstrators at the 2004 Democratic
National Convention in Boston, finding that the trial court's ruling was proper
in light of security concerns. Bl(a)ck Tea Society v. City of Boston, No.
04-2002, 2004 U.S. App. Lexis 15778(1st Cir.). [2004 LR Sep]
An arrest of anti-abortion protesters for holding
posters of mutilated fetuses was reasonable under a city ordinance making it
unlawful to stand in a public place and hinder traffic, and a valid use of
police power to protect public safety, and therefore did not violate the First
Amendment. Arresting officers were entitled to qualified immunity. Frye v.
Kansas City, Mo., No. 03-2134, 2004 U.S. App. Lexis 15366 (8th Cir. July 26,
2004) [2004 LR Sep]
Adult nightclub seeking to feature nude or
semi-nude dancers was a "prevailing party" entitled to an award of
$49,175 in attorneys' fees despite the fact that their civil rights lawsuit
against a restrictive zoning ordinance was dismissed as moot after the
defendant county repealed the challenged restriction. Federal appeals court
notes that the repeal came only after the trial court had already ruled on the
merits of the challenge, and that the trial court only delayed entering a final
order to allow the county a continuance to make the change to the law. Palmetto
Properties, Inc. v. County of DuPage, No. 03-2174, 2004 U.S. App. Lexis 13952
(7th Cir.). [2004 LR Sep]
Deputies had probable cause to arrest woman's
stepfather for disorderly conduct for yelling obscenities and other
"fighting words" at her and her husband in the morning after being
involved in a domestic dispute with them the evening before. Gower v. Vercler,
No. 02-4112, 2004 U.S. App. Lexis 15281 (7th Cir.). [2004 LR Sep]
Supervisors of police officers who allegedly
attacked political demonstrators at Presidential Inaugural Parade could not be
held personally liable on alleged failure to properly train and supervise their
subordinates, in the absence of any knowledge of past transgressions making
such misconduct likely. International Action Center v. United States, No.
03-5163, 365 F.3d 20 (D.C. Cir. 2004). [2004 LR Aug]
There were genuine issues of fact as to whether
minister was arrested on three occasions solely for the words he spoke, and
whether those words were constitutionally protected free speech or unprotected
"fighting words" which provoked hostile crowd reactions threatening
to cause riots. The arrestee is a evangelist who believes that his mission is
to bring the gospel to college students and on these occasions, he went to
various events or locations, preaching and, in one instance, carrying a sign
stating that "Fornicators and drunkards will join Tupac in hell,"
referring to deceased "rap" musician Tupac Shakur, and allegedly, on
one occasion, called female students "Catholic whores." City,
however, was not shown to have failed to adequately train officers on First
Amendment rights, as it taught officers to protect individual rights to free
speech limited only by threats to the safety of the public. Victory Outreach
Center v. Melso, 313 F. Supp. 2d 481 (E.D. Pa. 2004). [N/R]
Federal appeals court rules that demonstrator who
painted a "peace" symbol on a U.S. flag for display during
demonstrations against the war against Iraq was not entitled to an injunction
against being prosecuted under state flag desecration law as a violation of her
First Amendment rights in the absence of a showing of a real danger that she
would be prosecuted under the statute. Lawson v. Hill, #03-3433, 368 F.3d 955
(7th Cir. 2004). [2004 LR Jul]
New York state harassment statute, when applied
to the mailing of written materials on religious and political issues found
"annoying" by a candidate for Lieutenant Governor to whom they were
sent, was violative of the First Amendment. Court enjoins enforcement of
statute against arrestee with respect to his further mailing of First Amendment
protected materials. Factual issues as to whether police detectives violated
clearly established rights, however, prevented summary judgment on the issue of
qualified immunity from liability. Vives v. City of New York, 305 F. Supp. 2d
289 (S.D.N.Y. 2003). [N/R]
Denial of a parade permit to Ku Klux Klan based
on a New York statute prohibiting the wearing of masks upheld by federal
appeals court. Overturning trial court opinion, appeals court finds no First
Amendment violation, ruling that the mask that the Klan sought to wear in
public conveyed no message "independent" of their robes and hood, and
that the statute did not discriminate on the basis of viewpoint. Church of the
American Knights of the Ku Klux Klan v. Kerik, #02-9418, 356 F.3d 197 (2nd Cir.
2004). [2004 LR Jun]
County ordinance requiring permits for public
demonstrations of five or more people violated the First Amendment by
improperly targeting political expression. A provision in the ordinance
requiring that groups indemnify the county in a manner "satisfactory"
to the county attorney granted him "unconstitutional discretion" over
permit decisions. Burk v. Augusta-Richmond County, No. 03-11756, 2004 U.S. App.
Lexis 7261 (11th Cir.). [2004 LR Jun]
Man arrested for failure to respond to complaint that
he had not properly registered his dog could not pursue his claim that city
officials retaliated against him for exercise of his First Amendment rights
when he failed to provide any specifics or allege how the individual defendants
participated in the supposed violation of his rights. Ledbetter v. City of
Topeka, Kansas, No. 02-3202, 318 F.3d 1183 (10th Cir. 2003). [N/R]
Arrestee who was awarded $1 in nominal damages on
his claim that a police officer improperly arrested him for exercising his freedom
of speech in putting him under arrest for disorderly conduct after he shouted
at the officer for refusing to move his illegally parked personal vehicle was a
prevailing party entitled to an award of attorneys' fees under Massachusetts
state statute. Trial court awarded $45,451.36 as reasonable attorneys' fees and
expenses. Norris v. Murphy, 287 F. Supp. 2d 111 (D. Mass. 2003). [N/R]
Denial of Ku Klux Klan's application to join
state highway commission's "adopt-a-highway" was improper whether
justified on the basis that the Klan discriminates on the basis of race or on
the basis of "judicial notice" that the organization has a history of
violence. Denial overturned by federal court on First Amendment grounds. Robb
v. Hungerbeeler, 281 F. Supp. 2d 989 (E.D. Mo. 2003). [2004 LR Feb]
Public library's eviction of patron for refusal
to wear shoes did not violate his First Amendment rights. Requirement to wear
shoes was rationally related to legitimate government interests in protecting
public health and safety and protecting public funds against personal injury
claims of barefoot patrons. Neinast v. Board of Trustees of Columbus
Metropolitan Library, #02-3482, 346 F.3d 585 (6th Cir. 2003). [N/R]
Deputy
sheriff had probable cause to arrest protester passing out leaflets about
"jury nullification" in a courthouse lobby who allegedly failed to
leave when asked to do so. There was no First Amendment violation, as the
courthouse lobby was not a traditional public forum. Braun v. Baldwin, No.
02-4143, 346 F.3d 761 (7th Cir. 2003). [2004 LR Jan]
First
Amendment rights of "erotic dancing" business were not violated by
city code prohibiting consumption of alcohol in establishments lacking valid
liquor licenses. The ordinance in question did not regulate protected
expression and applied equally to all businesses. Talk of the Town v. Dept. of
Finance and Business Services, No. 01-15303, 343 F.3d 1063 (9th Cir. 2003).
[N/R]
Under federal law, an indictment "fair upon
its face, by a properly constituted grand jury" is dispositive as to
whether there was probable cause for an arrest, so that police officers
indicted on charges of tampering with records could not pursue false arrest
civil rights claim. There was, however, a genuine issue of fact as to whether
city officials engaged in retaliation against the officers in violation of
their First Amendment right to express opinions about a matter of public
concern, requiring further proceedings on that claim. Bakos v. City of Olmsted
Falls, No. 02-3399, 73 Fed. Appx. 152 (6th Cir. 2003). [N/R]
Police officers were not entitled to qualified
immunity for allegedly arresting and using excessive force against civil rights
activists who attempted to make video and audio tape records of their traffic
stops in retaliation for their criticism of police. Plaintiffs had a clearly
established First Amendment right to criticize and journalistically record
traffic stops. McCormick v. City of Lawrence, 271 F. Supp. 2d 1292 (D. Kan.
2003). [2003 LR Dec]
Motorist could not recover damages on her claim
that state trooper wrote a citation against her to retaliate for her husband's
accusations that he was mishandling an accident investigation. Court finds that
husband's free speech was not "chilled" by the allegedly retaliatory
issuance of the traffic citation, since the husband continued his argument with
the trooper after the citation was issued, and also later complained about the
incident to the trooper's superior. Persaud v. McSorley, 275 F. Supp. 2d 490
(S.D.N.Y. 2003). [N/R]
Arrestee's chanting of words in protest of police
requirement that persons seeking to attend a protest rally submit to a pat down
search, including "two, four, six, eight, fuck the police state," was
constitutionally protected speech under the First Amendment for which he could
not face arrest for disorderly conduct in the absence of any evidence that his
words presented a "clear and present danger" of a violent reaction by
the crowd. Arresting officer, however, was entitled to qualified immunity from
liability, since he believed that the arrestee was trying to incite the crowd,
which had become disorderly the previous day. Spier v. Elaesser, 267 F.
Supp. 2d 806 (S.D. Ohio 2003). [2003 LR Nov]
Federal appeals court grants judgment as a matter
of law to African-American high school basketball coach arrested by police
officer solely for calling him a "son of a bitch." Arrestee's
statement did not constitute "fighting words," and were therefore
protected by the First Amendment. Officer also did not, prior to the arrest,
have reasonable suspicion sufficient to detain the coach for an investigatory
stop on the basis of motel clerk's report of his "suspicious"
behavior of appearing nervous while drinking coffee and looking at newspapers
in motel office. Johnson v. Campbell, No. 02-3580, 332 F.3d 199 (3rd Cir.
2003). [2003 LR Oct]
Boat dealer failed to show that environmental
police officer, (employed by the division of environmental law enforcement of
the state Department of Fisheries, Wildlife and Environmental Law Enforcement,
subsequently renamed the Department of Fish and Game), seized his dealer
"certificate of number" and two number placards from vessels the
dealer was operating in retaliation for his exercise of his First Amendment rights
in expressing opposition to certain actions of the zoning board of appeals and
harbormaster. The dealer appeared to be in violation of a licensing statute and
the officer was unaware of the dealer's disputes with the zoning board and
harbormaster. Baker v. Gray, 785 N.E.2d 395 (Mass. App. 2003). [N/R]
Pro-statehood, pro-U.S. demonstrator in Puerto
Rico did not adequately show that police violated his First Amendment rights by
arresting him, thereby showing favoritism towards non-statehood supporters,
"leftist groups," and "anti-American" sentiment expressed
by opposing demonstrators there. The court noted that the plaintiff was the
only person arrested in this single alleged incident, out of 500 pro-U.S.
demonstrators present to oppose anti-U.S. demonstrators, which was insufficient
to show a policy of making arrests on the basis of political affiliation. The
plaintiff, who suffered from a chronic emotional condition and a schizophrenic
disorder, was removed from the scene on the basis of his actions, in order to
"avoid any serious altercations with protesters." Bonilla v. Vivoni,
259 F. Supp. 22d 135 (D. Puerto Rico 2003). [N/R]
California county's ordinance banning the
possession of firearms on county property did not violate the First Amendment
rights of gun show promoters or improperly regulate commercial speech. State
gun regulations did not preempt county's ability to regulate gun shows, and
federal appeals court declines to address Second Amendment argument, finding
that it involves a collective right to bear arms only assertable by the states,
and not by individuals. Nordyke v. King, #99-17551, 319 F.3d 1186 (9th Cir.
2003). [2003 LR Aug]
Arrestee who was awarded $2 in damages by a jury
on his claim for violation of his First Amendment rights based on his arrest
while he was protesting on the steps of city hall was not entitled to
attorneys' fees, particularly when he previously declined two separate offers
of judgment from defendant officers, requested $10,000 in damages, and lost his
claim against the municipality and his claim for punitive damages. Pouillon v.
Little, No. 01-1619, 326 F.3d 713 (6th Cir. 2003). [N/R]
Doctor who cursed police dispatcher and made
statements that could be interpreted as threats against officers did not have a
claim for violation of his First Amendment rights based on police department
report of these statements to his employer, which contributed to his suspension
from medical residency program. Cohen v. Smith, #01-1666, 58 Fed. Appx. 139
(6th Cir. 2003). [2003 LR Jul]
Florida statutes under which protesters at Disney
World were threatened with arrest if they did not disperse were
unconstitutional under the First Amendment because they were not "content
neutral," prohibiting retarding of traffic except for purposes of
charitable solicitation or political campaigning, or offering literature to the
occupant of a car even if there was no effect on traffic or safety. Bischoff v.
Florida, 242 F. Supp. 2d 1226 (M.D. Fla. 2003). [2003 LR Jun]
Update: federal appeals court reverses ruling
that off-duty sheriff's deputies, in making a "mass purchase" of
copies of a weekly community newspaper which published an article critical of
the sheriff on the night before the vote on his re-election, did not act "under
color of state law" for purposes of a federal civil rights lawsuit
claiming violation of First, Fourth and Fourteenth Amendment rights. Appeals
court also holds that sheriff's contribution of money towards the mass purchase
and expression of his approval of the action was an act under color of state
law. Rossignol v. Voorhaar, #02-1326, 316 F.3d 516 (4th Cir. 2003).
[2003 LR May]
Federal appeals court upholds New York City's
decision to bar an anti-war march through the streets near the United Nations,
while allowing a stationary protest rally. Court finds that, under the
circumstances of a proposed march of uncertain size, called on short notice,
with unclear provisions for march organizers to attempt to control the crowd,
the city's decision was a reasonable time, place, and manner regulation not
violative of the First Amendment. United for Peace and Justice v. City of New
York, #03-7130, 2003 U.S. App. Lexis 4526 (2nd Cir.). [2003 LR May]
City ordinance which prohibited the sale of
alcohol on premises which presented "adult entertainment" such as
nude dancing did not violate the First Amendment, since it was a reasonable
effort to combat undesirable "secondary" effects that could result
from the combination of that form of entertainment and the consumption of
alcohol. Ben's Bar, Inc. v. Village of Somerset, #01-4351, 316 F.3d 702 (7th
Cir. 2003). [N/R]
Federal appeals court overturns injunction
requiring that police notify cooperating witnesses being interrogated that a
lawyer, purporting to represent them, has arrived at the station. Court rejects
ruling which was purportedly based on the First Amendment rights of the lawyer
to associate with his client. First Defense Legal Aid v. City of Chicago,
#02-3376, 319 F. 3d. 967 (7th Cir. 2003). [2003 LR Apr]
New York statute prohibiting the wearing of masks
in public demonstrations, with the sole exception of "masquerade
parties" or "entertainment" purposes, violated the First
Amendment rights of Klan group. Federal trial court finds that wearing masks is
protected by the right to anonymous speech, as well as the right to symbolic
speech, and that the exception provided constituted an impermissible
content-based restriction. Statute was also improperly "selectively"
enforced. Church of Amer. Knights of Ku Klux Klan v. Kerik, 232 F. Supp. 2d 205
(S.D.N.Y. 2002). [2003 LR Apr]
Municipal ordinance requiring a permit before
distributing literature or making speeches in public parks was facially invalid
under the First Amendment. It would curtail spontaneous speech and was not
"narrowly tailored" to achieve a significant government interest.
Diener v. Reed, 232 F. Supp. 2d 362 (M.D. Pa. 2002). [N/R]
Arrestee, in characterizing an officer as an
"asshole" did not say anything sufficient to place the statement
outside the protection of the First Amendment as "fighting words."
Additionally, even if the officer had probable cause to make an arrest for
violation of the city's civil disturbance ordinance, there would be no
justification for the arrest if the officer actually was motivated by
retaliation for the arrestee's statements prior to the arrest. Greene v.
Barber, #01-1247, 310 F.3d 889 (6th Cir. 2002). [2003 LR Mar]
Officer was not entitled to summary judgment on
liability for alleged false arrest when there was a material issue of fact as
to whether the arrestee was actually taken into custody solely because he
criticized the officer's conduct in arresting and allegedly beating another
person, and requested his badge and vehicle identification numbers, which would
have been protected speech. Baskin v. Smith, #01-1721, 50 Fed. Appx. 731 (6th
Cir. 2002). [N/R]
Officer's arrest of an attorney, made during his
protest of a state trooper's traffic stop of his client, was not unlawful
retaliation for the attorney's exercise of his First Amendment rights. The
lawyer's interference with the officer on the side of a busy interstate highway
and his attempt to leave the scene after the trooper informed him that he was
going to be issued tickets, gave the trooper probable cause to arrest him for
his conduct, even if the trooper was "arguably brimming over with
unconstitutional wrath." Abrams v. Walker, No. 01-2447, 307 F.3d 650 (7th
Cir. 2002). [2003 LR Feb.]
Instructors at college's police academy, who had
testified against police as expert witnesses in an excessive force case had no
constitutionally protected property interest which was violated by chiefs of
police and sheriffs allegedly seeking non-renewal of their contractors in retaliation
for the testimony. Police chiefs and sheriffs were not, however, entitled to
qualified immunity on instructors' claim that they kept their personnel out of
the instructors' classes, in violation of their First Amendment rights, in
retaliation. Plaintiffs also asserted a valid claim under Texas state law for
tortious interference with instructors' contract relationship with the academy,
and the defendants were not entitled to official immunity from that claim.
Kinney v. Weaver, #00-40557, 301 F.3d 253 (5th Cir. 2002).[N/R]
Dispute over whether arrestee continued to
protest loudly or lowered his voice after initial yelling when officer
confronted him over sleeping in the surgery waiting room in the hospital where
his daughter was going to be operated on barred summary judgment on false
arrest claim. Arrestee's activity in confrontation with hospital staff over his
sleeping in the waiting room was not, however, protected by the First
Amendment. Shevlin v. Cheatham, 211 F. Supp. 2d 963 (S.D. Ohio 2002). [N/R]
Members of motorcycle organization denied entry
to portions of county courthouse because of their refusal to remove clothing
with "biker" symbols were entitled to a preliminary injunction, based
on the likelihood of their success on the claim that the action violated their
First Amendment rights. Sammartano v. First Judicial District Court, #01-16685,
303 F.3d 959 (9th Cir. 2002). [2003 LR Jan]
Police officer did not act reasonably in
arresting man for shouting abusive comments at officers and answering them with
sarcasm, which "amounted to no more than criticism of the police" and
did not constitute either fighting words or incitement of others to imminent
unlawful violence. Qualified immunity defense was not available. Resek v. City
of Huntington Beach, #01-56029, 41 Fed. Appx. 57 (9th Cir. 2002). [2002
LR Dec]
An arrestee's actions in pouring a drink on
another patron in a casino did not involve the exercise of his First Amendment
right to speech, so summary judgment was properly granted in his federal civil
rights lawsuit over his arrest for doing so. Corrigan v. Jaeger, #01-16903 43
Fed. Appx. 69 (9th Cir. 2002). [N/R]
Officer who allegedly elbowed a protester at a
lawyers' meeting did not violate her First Amendment rights when his alleged
motive was personal revenge for being embarrassed at a prior event, rather than
deterrence of political expression. Force officer used to remove protester from
public event was reasonable. Kash v. Honey, #01-7794, 38 Fed. Appx. 73 (2nd Cir.
2002). [2002 LR Nov]
City ordinance restricting the use of amplified
sound to 25-foot audibility from a private property line was so limiting that
it constituted a complete ban on the use of amplified sound for any form of
speech and violated the First Amendment. Court rules that the ordinance in
question was not a reasonable time, place and manner restriction on speech, but
an impermissible prior restraint which violated the rights of those seeking to
hold a live music festival on private property. City council member, however,
was entitled to qualified immunity from liability for money damages. Lilly v.
City of Salida, 192 F. Supp. 2d 1191 (D. Colo. 2002). [N/R]
Georgia statute which prohibited the advertising
and distribution of sexual devices violated the First Amendment. Georgia
statute, O.C.G.A. Sec. 16-12-80, was not expressly preempted by federal Medical
Device Amendments of 1976, 21 U.S.C. Sec. 360k(a) when its purpose was not
related to the safety or effectiveness of the sexual devices, but rather
related to public morality and the distribution of allegedly obscene material.
Owner of retail establishment selling devices could pursue federal civil rights
claim. This That and Other Gift & Tobacco v. Cobb County, #01-13482, 285
F.3d 1319 (11th Cir. 2002). [N/R]
Ordinance barring "religious or political
activities" in municipal amphitheater violated the First Amendment and a
preliminary injunction against its enforcement would be issued. Firecross
Ministries v. Municipality of Ponce, 204 F. Supp. 2d 244 (D. Puerto Rico 2002).
[N/R]
Village ordinance, which made it a misdemeanor to
engage in door-to-door "canvassing" without first obtaining a permit
and registering with the mayor's office, violated the First Amendment in
preventing religious "witnessing" and anonymous political speech.
Watchtower Bible & Tract Society of New York, Inc. v. Village of Stratton,
#00-1737, 122 S. Ct. 2080 (2002). [N/R]
Police department study concluding that
concentrations of "adult" entertainment establishments are associated
with higher crime rates in surrounding communities was reasonably relied on by
city in enacting ordinance prohibiting such enterprises within 1,000 feet of
each other or within 500 feet of a religious institution, school, or public park.
City of Los Angeles v. Alameda Books, Inc., #00-799, 122 S. Ct. 1728 (2002).
[N/R]
Colorado Supreme Court holds that U.S. and
Colorado constitutions protect an individual's "fundamental right to
purchase books anonymously," and imposes a requirement under state law
that bookstores be given an opportunity for an adversarial hearing prior to the
execution of a search warrant seeking customer purchase records, to balance the
need for the search against the privacy interests of the customers. Tattered
Cover, Inc. v. City of Thornton, #01SA205, 44 P.3d 1044 (Colo. 2002). [2002 LR
Aug]
Woman who allegedly intended to place religious
leaflets on car windshields had standing to sue county prosecutor and
superintendent of state patrol to enjoin, on First Amendment grounds,
enforcement of state statute prohibiting such leafleting, since she faced a
credible threat of enforcement of the statute after they refused to tell her
lawyer that they would not enforce it. Deida v. City of Milwaukee, 192 F. Supp.
2d 899 (E.D. Wis. 2002). [N/R]
Officer was entitled to qualified immunity for
arresting hunter for disturbing the peace and did not violate the hunter's
First Amendment rights by making the arrest after the hunter complained about
the officer's interruption of his stalking of an elk to check the hunter's
license. The arrest was based on a prosecutor's independent determination that
there was probable cause for the charges and there was no indication that the
officer fabricated any facts in his report to the prosecutor. Petersen v.
Cazemier, 164 F. Supp. 2d 1217 (D. Or. 2001). [N/R]
U.S. Supreme Court unanimously upholds city
ordinance requiring permits to hold more than 50-person events in a city park.
Ordinance was utilized to deny a permit for a large gathering to advocate the
legalization of marijuana, but was "content neutral," and therefore
did not have to have First Amendment related procedural safeguards. Thomas v.
Chicago Park District, No. 00-1249, 122 S. Ct. 775 (2002). [2002 LR Apr]
Virginia state statute, Virginia Code Sec.
46.2-930, prohibiting loitering on bridges, being used to prevent anti-abortion
protesters from gathering there, was unconstitutionally vague, providing
inadequate notice of what conduct was prohibited, but city was not liable for
damages under 42 U.S.C. Sec. 1983, as plaintiffs failed to show that any
deprivation of their rights was caused by an official municipal policy or
custom. Lytle v. Doyle, No. 299CV1366, 197 F. Supp. 2d 481 (E.D. Va. 2001).
[N/R]
f City ordinance which prohibited
residential picketing was a permissible time, place, and manner restriction on
speech in the traditional public forum of residential streets so that arrests
of anti-abortion protestors for disobeying it did not violate their First
Amendment rights. Veneklase v. City of Fargo, No. 98-2147, 248 F.3d 738 (8th
Cir. 2001). [N/R]
Use of a public school as a polling place did not
automatically make it a traditional public forum and police officers did not
violate petition circulators' First Amendment rights by removing them from the
school property. United Food and Commercial Workers v. City of Sidney, Ohio,
174 F. Supp. 2d 682 (S.D. Ohio 2001). [N/R]
Bringing reckless driving charges against
motorcyclist, if motivated to hinder or prevent him from filing a civil lawsuit
against arresting officers who had engaged in a high-speed chase in which he
was injured, could constitute a violation of his First Amendment rights, even
if criminal charges would otherwise be warranted. Poole v. County of Otero, No.
00-2215, 271 F.3d 955 (10th Cir. 2001). [2002 LR Mar]
Five alleged instances of primarily verbal
"harassment" by a police officer over a three- year period, even if
"inappropriate," was insufficient to state a claim for violation of a
woman's First Amendment rights to complain about the officer's conduct towards
her adult son. A person of "ordinary firmness" would not be
"chilled" from expressing her views based on the officer's alleged
actions. Carroll v. Pfeffer, No. 00-2946, 262 F.3d 847 (8th Cir. 2001). [2002
LR Jan]
Police officers did not need warrants to make
arrests for allegedly obscene nude dances performed in their presence. Furfaro
v. City of Seattle, #68971-7, 27 P.3d 1160 (Wash. 2001). [2002 LR Jan]
347:170 Newspaper was entitled to access to most
discovery documents in settled lawsuit claiming that police officer committed
sexual crime against a woman and police department had a policy of inadequate
training, supervision and discipline of officers engaged in repeated acts of
misconduct; public interest in preventing police misconduct outweighed any
benefit of keeping the documents confidential, as long as personal information
such as social security numbers, addresses, and medical records were excluded.
Doe v. Chicago Police Officer E. Marsalis, 202 F.R.D. 233 (N.D. Ill. 2001).
344:115 Military police officer who shoved
protester into a van while arresting him at the scene of a speech by the U.S.
Vice President at a military based was entitled to qualified immunity; U.S.
Supreme Court rules that inquiry on qualified immunity is whether an officer
would have clearly known that his use of force was improper under the
particular circumstances faced, not merely whether the use of force is
ultimately judged reasonable. Saucier v. Katz, No. 99-1977, 121 S. Ct. 2151
(2001).
341:71 Animal rights activist could lawfully be
barred from premises of city animal shelter when she engaged in "rude and
disruptive conduct" interrupting the shelter's business. Mcafee v. Deale,
#99-2361, 2000 U.S. App. LEXIS 21411 (4th Cir.).
341:71 Motorist's statement to officer who
stopped him that "I'll see you out" could be protected First
Amendment expression if not meant as a threat of immediate harm; statement did
not need to be on a matter of "public concern" to be protected
speech. Naccarato v. Scarselli, # 98-CV-1115, 124 F. Supp. 2d 36 (N.D.N.Y.
2000).
338:23 Federal appeals court modifies consent
decree on political spying to allow surveillance of possible terrorist groups
which advocate violence prior to when there is reasonable suspicion of imminent
violent actions. Alliance to End Repression v. City of Chicago, No. 99-3825,
237 F.3d 799 (7th Cir. 2001).
[N/R] Anti-abortion protester failed to establish
that police officers, in enforcing injunction against his activities, was
acting as an agent of abortion clinic; protester could not bring suit under the
Freedom of Access to Clinic Entrances Act, 18 U.S.C. Sec. 248. Raney v. Aware
Woman Center for Choice, Inc., #99-14122, 224 F.3d 1260 (11th Cir. 2000).
[N/R] Officers' alleged different treatment of
individual compared to their treatment of his neighbors in responding to
various complaints did not violate his First Amendment right to petition for
redress of grievances or his right to equal protection. Hilton v. City of
Wheeling, #99- 3727, 209 F.3d 1005 (7th Cir. 2000).
[N/R] Female operator of auto towing company
could sue Highway patrol official for alleged retaliation against her for
complaining of sex discrimination in the allocation of the patrol's towing
business. Gable v. Lewis, #98-3819, 201 F.3d 769 (6th Cir. 2000).
337:7 Federal trial court rules that motorist's
gesture of displaying his middle finger to an officer driving by was protected
First Amendment speech; officer was not entitled to qualified immunity and
could be held liable for arresting motorist for disorderly conduct. Nichols v.
Chacon, 110 F. Supp. 2d 1099 (W.D. Ark. 2000).
331:104 City hall steps were a "traditional public
forum" on which anti-abortion protester had a right to demonstrate unless
he impeded access to the building or violated a reasonable time, place, and
manner restriction; jury should have been instructed that he had this right to
demonstrate there and should not have been allowed to decide a legal issue of
whether the officers were entitled to qualified immunity for arresting him.
Pouillon v. City of Owosso, #98-1967, 206 F.3d 711 (6th Cir. 2000).
332:120 Police officer was entitled to qualified immunity
for arresting protesters who were passing out anti- income tax leaflets on a
sidewalk outside a post office on the day that federal income tax returns were
due; officer could reasonably believe that leafleting there would impede the
access of postal patrons to the facility, and the sidewalk in question was not
a "traditional public forum." Paff v. Kaltenbach, No. 99-6025, 204
F.3d 425 (3rd Cir. 2000).
333:134 Running of one year statute of
limitations to bring a federal civil rights claim over alleged political
discrimination in revocation of store's firearms sales license and raid on
store accrued on the day of the raid and a lawsuit filed 23 years after the
fact was time barred even if plaintiffs claimed they did not learn the reason
for the raid until later. Ramos v. Roman, 83 F.Supp. 2d 233 (D. Puerto Rico
2000).
335:170 Federal appeals court rules that city's
decision to deny a newspaper's request to have a hyperlink to its website on
the city's website, if motivated by the viewpoint of the newspaper's website,
may be violative of the First Amendment. Putnam Pit, Inc. v. City of
Cookeville, #98-6438, 221 F.3d 834 (6th Cir. 2000).
335:171 Fact that a portion of school property
was being used as a polling place did not convert the remainder of the premises
into a public forum; police chief did not violate plaintiff's First Amendment
rights by arresting her when she refused to leave school property where she had
been collecting signatures on a petition on election day. Embry v. Lewis, No.
99-2238, 215 F.3d 884 (8th Cir. 2000).
326:19 Publishing company was not entitled to an
injunction against statute placing restrictions on the release of and use of
information concerning the names and addresses of arrestees, which provided
that such addresses could not be used for the sale of any products or services;
statute on its face did not restrict commercial speech, but merely regulated
the release of information in the hands of law enforcement. Los Angeles Police
Dept. v. United Reporting Publishing Corp., #98-678, 120 S. Ct. 483 (1999).
326:28 Denying photographer access to accident
scene to take photographs did not violate his First Amendment rights; newsmen
have no constitutional right of access to crime or disaster scenes when the general
public is excluded. Kinsey v. City of Opp, 50 F Supp. 2d 1232 (M.D. Ala. 1999).
326:29 Arrestee who joked at courthouse security
checkpoint about whether he looked like "the Unabomber" stated claim
for violation of his First Amendment rights in claiming he was arrested in
retaliation for telling the joke. Palma v. Atlantic County, 53 F.Supp. 2d 743
(D.N.J. 1999).
327:42 Sheriff's action of allegedly issuing
criminal summons to woman in retaliation for her political opposition to him
did not state a civil rights claim for malicious prosecution when she was not
arrested, detained, fingerprinted, or ultimately prosecuted; plaintiff's
liberty was not restricted in any way; summons and alleged defamatory remarks
to the press also did not constitute a violation of First Amendment rights when
no tangible adverse damage resulted from these acts. Matherne v. Larpenter, 54
F.Supp. 2d 684 (E.D. La. 1999).
329:71 Arrests and threatened arrests of anti-
abortion protesters on highway overpass for alleged violation of a state
statute prohibiting "loitering" violated their First Amendment rights
as overpass was similar to a public street and therefore a public forum;
officer was entitled to qualified immunity, however, as he relied on the constitutionality
of the statute, acted on the orders of his supervisor, and believed that the
protesters represented a hazard to traffic safety; no showing of official
policy or custom as required for municipal liability. Lyttle v. Brewer, 77
F.Supp. 2d 730 (E.D. Va. 1999).
330:90 City ordinance that restricted
"focused residential picketing" within 50 feet of a residence,
enacted in response to anti-abortion demonstrators at abortion clinic doctor's
home, did not violate demonstrator's First Amendment rights because it was
content neutral and legitimately aimed at protecting residential privacy.
Thorburn v. Roper, 39 F.Supp. 2d 1199 (D. Neb. 1999).
330:91 Sufficient evidence existed for a jury to
be able to conclude that an "informal" New York City policy existed
of driving street artists out of the community; trial court denies city summary
judgment in lawsuit brought by artist arrested three times while protesting
application of licensing ordinance to artists who sold their work on the
street. Lederman v. Adams, 45 F.Supp. 2d 259 (S.D.N.Y. 1999).
320:122 City of New York reaches $59,000
settlement with "Black Israelite" street preachers over claim that
denial of permits for amplified sound and treatment of group by police violated
their First Amendment rights. Israeli Church of Universal Practical Knowledge
v. N.Y.C., U.S. Dist. Ct. (S.D.N.Y.), reported in The New York Times, p. A25
(June 16, 1999).
320:115 Officers did not violate union
demonstrators' First Amendment rights by using tear gas to disperse rally
outside factory after picketers refused to disperse; blowing of tear gas into
nearby homes did not violate clearly established privacy rights of homeowners;
court rejects inadequate training claim in absence of specific evidence.
Ellsworth v. City of Lansing, 34 F.Supp. 2d 571 (W.D. Mich. 1998).
318:90 Officer's removal of spectators from a
minor league baseball game at a leased stadium in a public park based on
request from team's security personnel did not violate their First Amendment
rights; cheering on the home team was not "expressive activity"
meriting constitutional protection. James v. City of Long Beach, 18 F.Supp. 2d
1078 (C.D. Cal. 1998).
{N/R} Interest of police department in
maintaining confidentiality concerning investigation of shooting by officer
outweighed another officer's First Amendment right to speak about the shooting;
officer did not have reasonable grounds for believing that a fellow officer
acted improperly. Lytle v. City of Haysville, Kan., #96-3197, 138 F.3d 857
(10th Cir. 1998).
316:57 New York City parade permit ordinance was
facially unconstitutional because it did not contain an "express time
limit" by which the police commissioner had to either grant or deny a
parade permit application. MacDonald v. Safir, 26 F.Supp. 2d 664 (S.D.N.Y.
1998).
316:57 Federal appeals court overturns injunction
against enforcement of anti-noise ordinance against street preachers; ordinance
only prohibits "unreasonably" loud noise. Asquith v. City of
Beaufort, #95-2956 - 95-2958, 139 F.3d 408 (4th Cir. 1998).
314:25 Police chief's cable television ad,
warning voters that some candidates for city council were ex-felons, did not
violate candidate's First Amendment right to political association or to run
for public office; there is a legitimate governmental interest under the U.S.
Constitution in impeding the candidacy of ex-felons, even if state law allows
them to run. Medina v. City of Osawatomie, 992 F.Supp. 1269 (D. Kan. 1998).
314:24 Officers had arguable probable cause to
arrest street minister for disorderly conduct when he admittedly succeeded in
making himself heard "over traffic"; officers entitled to qualified
immunity from First Amendment claim when minister was not singled out because
of the content of his speech. Redd v. City of Enterprise, #95-6673, 140 F.3d
1378 (11th Cir. 1998).
307:104 Action of passenger in moving vehicle of
yelling "f--k you" and extending middle finger towards abortion
protesters was protected speech under the First Amendment; passenger's rights
were clearly established, so that officer was not entitled to qualified
immunity for arresting passenger for disorderly conduct. Sandul v. Larion, 119
F.3d 1250 (6th Cir. 1997).
311:167 Verbal protests or challenges to the
police are permitted, even if they knowingly hinder, delay or obstruct the
police, appeals court rules; to be criminal, the words must be fighting words.
Gulliford v. Pierce County, #96-35614, 136 F.3d 1345 (9th Cir. 1998), cert.
denied, 1998 U.S. Lexis 4989.
311:168 Provision in consent decree limiting
F.B.I.'s political surveillance activities did not allow injunctive orders
merely upon a showing that the F.B.I. had "deliberately" begun an
investigation, but rather that it had done so with the "intent to interfere
with First Amendment rights." Alliance to End Repression v. City of
Chicago, Nos. 96-2347, 96-4014, 119 F.3d 472 (7th Cir. 1997).
{N/R} Ordinance barring sales and solicitations
of donations along boardwalk was violative of First Amendment, when not
narrowly tailored to serve governmental interests of aiding free flow of
traffic and protecting local merchants. Perry v. Los Angeles Police Dept., 121
F.3d 1365 (9th Cir. 1997).
291:42 Township will pay $10,000 to reporter and
$25,000 in attorneys' fees to ACLU in settlement of federal lawsuit over police
department spokesmen's alleged refusal to speak to reporter after he published
a series of articles critical of the department Moore v. Monroe Township, U.S.
Dist. Ct., Newark, NJ, reported in The Natl. Law Jour., p. A8 (November 4,
1996).
292:54 Violence at prior demonstration concerning
Rodney King verdict could not be basis for banning all demonstrations on
following day, federal appeals court rules; defendant city and law enforcement officials
were not entitled to qualified immunity from class action suit brought by
arrestees at demonstrations Collins v. Jordan, 102 F.3d 406, 1996 U.S. App.
Lexis 31148, 96 Daily Journal DAR 14460 (9th Cir. Dec 4, 1996).
280:56 Even if arrested demonstrator could not
state false arrest or false imprisonment claim, his complaints concerning
officers' alleged viewpoint discrimination against him based on where he was
told to stand, etc stated independent First Amendment claim on which he could
pursue federal civil rights suit Johnson v. Bax, 63 F.3d 154 (2nd Cir. 1995).
281:73 Arrest of man in crowd for repeatedly
calling his sister a "bitch," accusing her of matricide, calling
another man a "fucking queer" and pushing him, etc did not violate
his First Amendment free speech rights since his words were unprotected
"fighting words" with a tendency to provoke a physical altercation
Digiambattista v. Doherty, 897 F.Supp. 649 (D.Mass 1995).
282:90 Arrest of man for writing with chalk on
sidewalk was not supported by probable cause; no "reasonable
officer," federal appeals court rules, could have thought that there was
probable cause to arrest man for violation of statute prohibiting writing on
property with "paint" or liquid or damaging property; factual issue
was created as to whether city had policy of neglecting to train officers to be
sensitive to citizens' First Amendment rights MacKinney v. Nielsen, 69 F.3d
1002 (9th Cir. 1995). [Cross-reference: Defenses: Qualified (Good-Faith).
Immunity; False Arrest/Imprisonment: No Warrant]
284:120 Mere fact that individuals were indicted
by grand jury after they had already filed federal civil rights lawsuit against
officers who conducted gambling raid on their business premises did not show
that prosecution was retaliatory in violation of their First Amendment rights;
evidence clearly showed that there was intent to seek indictments prior to
filing of civil rights lawsuit Enlow v. Tishomingo County, Mississippi, 45 F.3d
885 (5th Cir. 1995). [Cross-reference: Malicious Prosecution]
268:57 Jury awards $35,000 in damages to gay free
circulation newspaper which sued police chief for allegedly ordering thousands
of copies of paper confiscated when it printed an article and
"doctored" photo ridiculing him Coming Up, Inc v. City and County of
San Francisco, 857 F.Supp. 711 (N.D.Cal 1994). The New York Times, p. 14 (Sept
18, 1994).
268:57 Arrest of man circulating petitions for
signatures on private property did not violate his First Amendment rights;
manager of property and police officer asked man to leave before he was placed
under arrest Geibels v. City of Cape Coral, 861 F.Supp. 1049 (M.D. Fla 1994).
269:68 City officials, including police chief,
who were alleged to have conspired to destroy or conceal evidence in order to
achieve low settlement in plaintiffs' wrongful death suit against city were
entitled to qualified immunity; plaintiffs' claim that such conduct violated
constitutional right of access to courts was not "clearly established"
law in 1988 at the time of the alleged misconduct Foster v. City of Lake
Jackson, 28 F.3d 425 (5th Cir. 1994).
271:99 U.S. Supreme Court to review case granting
qualified immunity to prison officials in suit inmate brought claiming that his
First Amendment rights were violated when he was placed in administrative
detention after he told the press he had allegedly sold marijuana to a Vice
Presidential candidate Kimberlin v. Quinlan, 6 F.3d 789 (DC Cir. 1993),
rehearing denied, 17 F.3d 1525 (DC Cir. 1994), cert granted, 115 SCt 929
(1995).
273:135 Having a jury determine whether officer
was entitled to qualified immunity in case where it was alleged that he warned
and cited plaintiff because of his political beliefs was "proper," or
at worst "harmless," federal appeals court rules; $35,350 jury award
against officer upheld, but award against city overturned in absence of
evidence of municipal policy or custom; $55,000 attorneys' fee award ordered
reconsidered Sloman v. Tadlock, 21 F.3d 1462 (9th Cir. 1994).
275:167 Officer was entitled to qualified
immunity for arresting passenger in van stopped at border patrol checkpoint who
refused to identify himself; federal appeals court finds no "clearly
established" right under either the First or Fourth Amendment to refuse to
identify oneself during a lawful investigatory stop Albright v. Rodriguez, 51
F.3d 1531 (10th Cir. 1995).
275:168 Right to be free from retaliation for
filing and winning a lawsuit was not so "clearly established" in 1988
that a reasonable officer would be required to know that conduct carried out
with that intent violated a person's First Amendment rights; officer was
entitled to qualified immunity on First Amendment claim Hale v. Townley, 45
F.3d 914 (5th Cir. 1995).
{N/R} Correct legal standard for determining
First Amendment violations by police officer was whether the officer's intent
to curb the plaintiff's free expression was the "determining or
motivating" factor in making an arrest; plaintiff need not show that this
was the officer's "sole" motive Tatro v. Kervin, 41 F.3d 9 (1st Cir.
1994).
Federal appeals court holds that NY statute
prohibiting all loitering for purposes of begging violates beggars' First
Amendment free speech rights, upholds injunction against enforcement by NY City
Police Department Loper v. NY City Police Dept, 999 F.2d 699 (2nd Cir. 1993).
Arrest of picketing anti-abortion protesters on
sidewalk outside abortion clinic for refusing officers' orders to cover the
words "The Killing Place" on their signs violated their clearly
established First Amendment right to picket on the sidewalk; words involved did
not constitute "fighting words" for which an arrest could be made
Cannon v. City and County of Denver, 998 F.2d 867 (10th Cir. 1993).
Anti-abortion demonstrators arrested under noise
ordinance later held unconstitutional could not recover damages in federal
civil rights lawsuit if they had been creating a level of noise which could
have constitutionally been prohibited under a reasonable time, place and manner
restriction Noelker v. City of Kansas City, Missouri, 802 F.Supp. 268 (WD Mo
1992).
Arrest of homeless street musician for sleeping
in public square, and alleged destruction of his property, did not violate his
free speech rights or his right to due process Stone v. Agnos, 960 F.2d 893
(9th Cir. 1992).
Police officers' enforcement of property owners'
wishes that anti-abortion demonstrators stay away from abortion clinic did not
constitute "state action" restrictive of free speech rights under New
York state constitution Moore v. Suffolk County Police Dept, 579 N.Y.S.2d 575
(Sup 1991).
Library policy barring patrons who
"annoy" others or who emit offensive odors violated homeless man's
rights to free speech, due process and equal protection of law, federal court
rules; Homeless plaintiff receives $150,000 settlement from town on allegations
of Police "harassment" Kreimer v. Bureau of Police for Town of
Morristown, 765 F.Supp. 181 (D.N.J. 1991).
Use of state police to bar access of AIDS protect
group to legislature's gallery during governor's speech violated the First
Amendment ACT-UP v. Walp, 755 F.Supp. 1281 (M.D. Pa 1991).
Political activists and organizations who alleged
they were targets of unconstitutional police surveillance causing harm to their
reputations could bring civil rights class action against city Riggs v. City of
Albuquerque, 916 F.2d 582 (10th Cir. 1990).
Protest permit could be denied for white
supremacist group which wished to protest on the same day previously reserved
for dedication of a civil rights monument based on city officials' belief that
they could not ensure public safety if both groups demonstrated at same
location nor have adequate manpower to supervise both groups if the demonstration
was held elsewhere Holland v. Wilson, 737 F.Supp. 82 (M.D. Ala 1989).
Federal Appeals Court finds that profanities and
obscene gestures directed at police officer by car passenger were speech and
conduct protected by the First Amendment Duran v. City of Douglas, Arizona, 904
F.2d 1372 (9th Cir. 1990).
Police officers violated news photographer's
first amendment rights by restricting his access to accident site more than
required to prevent interference with police functions Connell v. Town of
Hudson, 733 F.Supp. 465 (DNH 1990). Ordinance allowing establishment of police
lines to "prevent, suppress or contain" events allowed
unconstitutional discretion to prevent events protected by first amendment
Leonardson v. City of East Lansing, 896 F.2d 190 (6th Cir. 1990).
Placing of police barricade in front of abortion
clinic did not violate protester's first amendment rights Thompson v. Police
Dept of City of New York, 546 N.Y.S.2d 945 (Sup 1989).
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