10th Circuit: Oklahoma's License Plate Design Survives Compelled Speech Challenge

In Cressman v. Thompson, (10th Cir., Aug. 4, 2015), the U.S. 10th Circuit Court of Appeals rejected a compelled speech challenge to Oklahoma's standard vehicle license plates that depict a Native American shooting an arrow towards the sky. Plaintiff claims that the depiction is based on a sculpture derived from a Native American legend, and that, in violation of his Christian beliefs, it teaches there are multiple gods and the arrow is an intermediary for prayer.

Judge Holmes' majority opinion held that even though the U.S. Supreme Court's recent Walker decision held that license plates are government speech, that does not settle the question of whether plaintiff has been compelled to appear to endorse the government's message. He went on:

at bottom, Mr. Cressman’s claim fails because he cannot demonstrate that the Native American image is, in fact, speech to which he objects. At least in the context of its mass reproduction on Oklahoma’s standard vehicle license plate, the Native American image is not an exercise of self-expression entitled to pure-speech protection. The image may constitute symbolic speech, but the only conceivable message a reasonable observer would glean from the license plate is one to which Mr. Cressman emphatically does not object—namely, a message that communicates Oklahoma’s Native American culture and heritage.

Judge McHugh concurring objected to the majority's focus on whether the depiction involved pure speech or symbolic expression. She said in part:

[O]nce it is determined the license plate is speech, the restrictions on the Oklahoma government’s right to compel a private individual to carry its message apply equally, irrespective of whether the individual is compelled to speak through words, actions, symbols, or gestures....

As the majority has explained in detail, Mr. Cressman does not disagree with the message Oklahoma intended to convey with its standard license plate.... And he has directed us to no evidence supporting his assertion that third parties would interpret the graphic as a message promoting pantheism, the message with which he disagrees.

AP reports on the decision.

NY May Require Charities To File Information on Major Donors

In Citizens United v. Schneiderman, (SD NY, July 27, 2015), a New York federal district court held that the New York Attorney General can constitutionally require registered charities to file a copy of their federal Form 990, Schedule B disclosing the names, addresses, and contributions of their major donors in order to solicit funds in the state. According to the court:

On this record, the Court is satisfied that the Schedule B policy bears a substantial relation to the important governmental interests of enforcing charitable solicitation laws and protecting New York residents from illegitimate charities.... In light of the important governmental interests that the Schedule B policy serves, the Court cannot find on this record that it places unjustified burdens on charities' rights of speech and association.

The court also rejected prior restraint and due process arguments. Reuters reports on the decision.  In May, the 9th Circuit reached a similar result. (See prior posting.)

Suit Challenges Library Meeting Room Rules

In a lawsuit filed last Tuesday, a Christian advocacy group has challenged rules regarding the use of meeting rooms at the Lawrence, Massachusetts public library.  The complaint (full text) in Liberty Counsel, Inc. v. City of Lawrence, Massachusetts, (D MA, filed 6/30/2015), challenges the Meeting Room Policy which provides: "Political and religious groups may use the Library’s meeting rooms for administrative purposes but shall not be allowed use for the sake of proselytizing, campaigning, or otherwise influencing people to a particular belief or point of view." The policy also prohibits use of meeting rooms for religious services.  The complaint alleges that the policy violates the 1st and 14th Amendments as well as provisions of the state constitution. A Liberty Counsel press release announced the filing of the lawsuit.

Film Producer Says Its Ads For Comedy About U.S. Muslims Is Permitted Under New York MTA Revised Guidelines

As previously reported, in late April the New York Metropolitan Transportation Authority changed its policy on display advertising to exclude all ads of a political nature. Yesterday a lawsuit was filed on behalf of a movie production company that claims ads for its movie "The Muslims Are Coming!" was wrongfully rejected under that policy.  The complaint (full text) in Vaguely Qualified Productions LLC v. Metropolitan Transportation Authority, (SD NY, filed 6/25/2015), alleges that acceptance of ads for the film-- created by two American Muslim comedians-- was unconstitutionally delayed before the policy change, and then wrongfully rejected under the new policy because the ads are not political.  The complaint alleges in part:

55. With its Revised Policy, Defendants seeks to convert the MTA’s property from a designated public forum into a limited public forum....

57. In a limited public forum, strict scrutiny is accorded to restrictions on speech that fall within the designated category for which the forum has been opened. Restrictions on speech that fall outside that designated category must only be viewpoint neutral and reasonable.

58. VQP’s Advertisements fall within a designated category for which Defendants have opened the forum. Specifically, VQP’s Advertisements are “commercial advertising,”... because, in a manner consistent with VQP’s brand, the Advertisements “promote” and “solicit the sale” of VQP’s product, “The Muslims Are Coming!,” by promoting the underlying message of the film—that American Muslims are ordinary people.

A Muslim Advocates press release announced the filing of the lawsuit. Newsweek reports on the lawsuit.

Case Challenging Library Conference Room Policy Settled

On Tuesday, a North Carolina federal district court entered a Stipulated Final Judgment (full text) in Liberty Counsel, Inc. v. County of Wake, North Carolina (ED NC, June 23, 2015) after the parties agreed to settle the case. In the case, plaintiff challenged the county library's conference room policy that permitted non-profit groups to use library conference rooms for cultural, civic and informal educational purposes, but not for religious instruction, religious services or religious ceremonies. (See prior posting.) According to Liberty Counsel's press release, in the settlement "the library agreed to remove all offending bans on religion." The court's order also awarded nominal damages of $100 to plaintiff, and retained jurisdiction to enforce other parts of the settlement agreement if necessary.

After Policy Change, Court Dissolves Injunction Forcing Carrying of Anti-Islam Bus Ads

As previously reported, in April a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The controversial ad declared that "killing Jews" draws Muslims closer to Allah. The MTA responded to the court order by changing its policy and barring all ads of a political nature.  Now in American Freedom Defense Initiative v. Metropolitan Transit Authority, (SD NY, June 19, 2015), the federal district court granted the MTA's motion to vacate the preliminary injunction, finding that the new policy has rendered the preliminary injunction moot.  The court said in part:

In this case, the only conduct that the Court previously enjoined as unconstitutional was the defendants’ exclusion of the Killing Jews ad under the “incitement of violence” standard.  The defendants are now only excluding the Killing Jews ad under the New Policy banning political ads, a policy they assert that they have no plans of revising.... Thus, the defendants have ceased the conduct that the Court identified as unconstitutional....

[I]t is likely that the MTA’s exclusion of all political ads has converted its advertising space from a designated public forum to a limited public forum or a nonpublic forum.

Raw Story reports on the decision. [Thanks to Steven H. Sholk for the lead.]

Supreme Court Unanimously Upholds Church's Challenge To Restrictive Sign Ordinance

Today in Reed v. Town of Gilbert, Arizona, (Sup. Ct., June 18, 2015), the U.S. Supreme Court unanimously held that an Arizona town's sign ordinance that placed greater restrictions on temporary directional signs than on other signs violates the First Amendment.  The challenge to the ordinance was brought by a local church whose Sunday services are held at various temporary locations and which posted signs each weekend displaying the Church name and the time and location of the next service.  Justice Thomas' majority opinion (joined by Chief Justice Roberts and Justices Scalia, Kennedy, Alito and Sotomayor) concluded that the provisions placing greater restrictions on temporary directional signs than on signs conveying other messages (such as ideological and political signs) "are content-based regulations of speech that cannot survive strict scrutiny."  It emphasizes:

Innocent motives do not eliminate the danger of censorship presented by a facially content-based statute, as future government officials may one day wield such statutes to suppress disfavored speech.

It added:

a speech regulation targeted at specific subject matter is content based even if it does not discriminate among viewpoints within that subject matter.

Justice Alito, joined by Justices Kennedy and Sotomayor, filed a short concurring opinion setting out examples of content-neutral alternatives.

Justice Breyer filed a separate opinion concurring in the judgment saying that while the regulation here does not warrant strict scrutiny, it is nevertheless invalid. He explains:

The better approach is to generally treat content discrimination as a strong reason weighing against the constitutionality of a rule where a traditional public forum, or where viewpoint discrimination, is threatened, but elsewhere treat it as a rule of thumb, finding it a helpful, but not determinative legal tool, in an appropriate case, to determine the strength of a justification.

Justice Kagan (joined by Justices Ginsburg and Breyer) also filed an opinion concurring in the judgment, saying in part:

The Town of Gilbert’s defense of its sign ordinance—most notably, the law’s distinctions between directional signs and others—does not pass strict scrutiny, or intermediate scrutiny, or even the laugh test.... The absence of any sensible basis for these and other distinctions dooms the Town’s ordinance under even the intermediate scrutiny that the Court typically applies to “time, place, or manner” speech regulations. Accordingly, there is no need to decide in this case whether strict scrutiny applies to every sign ordinance in every town across this country containing a subject-matter exemption.

I suspect this Court and others will regret the majority’s insistence today on answering that question in the affirmative.  As the years go by, courts will discover that thousands of towns have such ordinances, many of them “entirely reasonable.”

Supreme Court Holds Specialty License Plates Are "Government Speech"

Today in Walker v. Texas Division. Sons of Confederate Veterans, Inc., (Sup. Ct., June 18, 2015), the U.S. Supreme Court in a 5-4 decision upheld a decision by the Texas Department of Motor Vehicles Board to reject an application by Sons of Confederate Veterans for the issuance of a specialty license plate design featuring a Confederate battle flag. The majority in an opinion by Justice Breyer (joined by Justices Thomas, Ginsburg, Sotomayor and Kagan) held the specialty plates are government speech, and that "when government speaks, it is not barred by the Free Speech Clause from determining the content of what it says."  The majority, relying largely on its 2009 Summum decision, said the history of license plates show that they have largely communicated state messages and their design is controlled by and closely identified in the public mind with the state. The majority added:

Constitutional and statutory provisions outside of the Free Speech Clause may limit government speech.... And the Free Speech Clause itself may constrain the government’s speech if, for example, the government seeks to compel private persons to convey the government’s speech. But, as a general matter, when the government speaks it is entitled to promote a program, to espouse a policy, or to take a position. In doing so, it represents its citizens and it carries out its duties on their behalf. 

Justice Alito's dissenting opinion (joined by Chief Justice Roberts and Justices Scalia and Kennedy) argued that the 350 varieties of specialty plates issued by the state of Texas are not seen as expressions of state policy:

If a car with a plate that says “Rather Be Golfing” passed by at 8:30 am on a Monday morning, would you think: “This is the official policy of the State—better to golf than to work?” 

Challenge To City's Removal of Cross Dismissed Because of Improper Plaintiffs

In Citizens of Grand Haven v. City of Grand Haven, (MI Cir. Ct., June 9, 2015), a Michigan trial court dismissed a suit that was seeking to require city council to reverse its earlier decision to limit access to Dewey Hill and convert the 48-foot cross on it into a Coast Guard anchor. (See prior posting.) Without getting to the merits of plaintiffs' free speech and religious discrimination claims, the court found that none of the plaintiffs, as named, were proper.  It held that plaintiff "Citizens of Grand Haven" did not qualify as an unincorporated voluntary association since it had no organizational form or decision-making process.  It was merely the group of people who had signed a petition.  The court went on to hold that the individual "John Doe" plaintiffs were not entitled to proceed anonymously.  The court applied a 5-factor test that had previously been developed by the courts for determining when proceeding under a pseudonym is appropriate. MLive reports on the decision.

UPDATE: On June 12, the lawsuit was refiled with named plaintiffs. (MLive 6/15).

Court Allows Student Distribution of Gospel Tracts

In Leal v. Everett Public Schools, (WD WA, May 29, 2015), a Washington federal district court entered an order (full text) expunging the suspensions of high school senior Michael Leal who has been disciplined for insisting on handing out gospel tracts to fellow students.  The court also held that the portion of Everett Public Schools' policies that allow a student to hand out literature only if it is written or produced by the student violates Leal's free speech rights.  However, the court permitted the school to limit the locations and times at which Leal can hand out literature, and limit his preaching to a free speech area.  The court spelled out the reasons for its order in a ruling from the bench. King5 News reports on the decision as does a press release from Pacific Justice Institute.

Church Sues Over Zoning Restrictions That Are Forcing It To Move

The San Diego Reader reports on a lawsuit filed May 28 by the San Diego Christian Worship Center against the city challenging zoning restrictions that will force the church to relocate in September.  The city granted the church a 5-year conditional use permit in 2010, and the church made $700,000 of improvements to its site. In 2014 the city changed the zoning in the area to "prime industrial," which does not allow churches, and the city says it will not renew the conditional use permit. The church lacks the resources to find a new building. Apparently the complaint contends that the new zoning designation, which excludes instructional studios and entertainment venues as well as churches, amounts to a prior restraint on First Amendment expression.  The church also claims-- presumably invoking RLUIPA-- that the cost of preparing an application every 5 years to renew its conditional use permit imposes a substantial burden on its exercise of religion.  It will cost $50,000 to $100,000 to prepare the application, which must include an environmental impact statement.

9th Cirucit Upholds Ban on Christmas Display In Palisades Park

In Santa Monica Nativity Scenes Committee v. City of Santa Monica, (9th Cir., April 30, 2015), the U.S. 9th Circuit Court of Appeals rejected free speech and Establishment Clause challenges to Santa Monica's repeal of a policy that, as an exception to a general ban on unattended displays, allowed  unattended Winter Displays in the city's Palisades Park. Since 1955, during December local residents  (and later the Nativity Scenes Committee) have erected dioramas in the Park depicting the Biblical story of Christmas. A policy enacted in 2003 allocated space on a first-come-first-served basis. However beginning in 2011, atheists who opposed Christmas displays in the Park, flooded the city with requests for their own displays and the city moved to a lottery system for allocating space. Rather than continuing to deal with this, in 2012 the city repealed the exception that allowed Winter Displays, and the Nativity Scenes Committee sued. The court held that the Ordinance repealing the Winter Display exception was a narrowly tailored neutral time, place and manner regulation that serves a substantial governmental interest and leaves open ample alternative channels of communication. The court refused to extend the "heckler's veto" doctrine to this situation. Finally the court rejected challengers' claim that the repeal violated the Establishment Clause by conveying hostility toward Christianity. Thompson/ Reuters reports on the decision.

New York MTA Bans All Issue Advertising After Court Orders Acceptance of Anti-Islam Ad

New York's Metropolitan Transportation Authority yesterday adopted a resolution barring all political  and issue advertising on subways and buses.  The move comes in response to a federal district court's ruling last week requiring the Authority to accept an ad that refers to "killing Jews" as part of Islam's jihad. (See prior posting.) According to CBS New York, MTA's general counsel explained that "Advertisements expressing viewpoint messages, regardless of the viewpoint being expressed, would no longer be accepted." Opposing the ban, an ACLU spokesman said: "The New York City transit system is our public square."  However MTA board member Charles Moerdler argued that the MTA "is a transportation agency, it is not an agency that provides a platform for hatemongers."

Atheist Group Sues Pennsylvania Transit System Over Refusal To Accept Ad

The ACLU of Pennsylvania announced that it has filed suit on behalf of an atheist group against the County of Lacawana Transit System (COLTS) over its advertising policy. The complaint (full text) in Northeastern Pennsylvania Free Thought Society v. County of Lacawana Transit System, (MD PA, filed 4/28/2015) contends that COLTS rejected an ad submitted for the outside of its buses reading: "Atheists. NEPAfreethought.org." COLTS advertising policy originally barred ads that are derogatory to any religion, or are objectionable, controversial or generally be offensive to COLTS’ ridership.  The policy was subsequently amended to bar ads that promote the existence or non-existence of a supreme deity; promote or criticize a religion or lack of religious belief; that quote or cite scriptures; or that are otherwise religious. COLTS policy was to maintain its advertising space as a nonpublic forum and not to allow its transit vehicles to become a platform for debate, or discussion of public issues or issues that are political or religious in nature.

The suit contends that COLTS has violated plaintiff's free expression rights by favoring commercial speech over speech on matters of public concern; and by in fact having a policy that accepted all ads until the Freethought Society attempted to advertise.  The complaint claims that COLTS policy is viewpoint based and unreasonable.

Kentucky Court Says Businesss May Refuse To Print Gay Pride T-Shirts

In Hands On Originals, Inc. v. Lexington-Fayette Urban County Human Rights Commission, (KY Cir. Ct., April 27, 2015), a Kentucky state trial court, reversing an order of a county human rights commission, held that a small business that prints promotional items for customers did not violate the county's public accommodation ordinance when it refused to print Lexington Pride Festival t-shirts for the Gay and Lesbian Service Organization.  The business, Hands On Originals ("HOO"), had a policy, displayed on its website, that it would refuse any order that endorsed a position in conflict with the convictions of the business' Christian owners. The court concluded that the refusal was not because of the sexual orientation of the representatives that communicated with HOO, but rather because of the message the t-shirt would convey-- that one should be proud of sexual relationships other than between a married man and woman. The court held that it is the right of HOO and its owners "not to be compelled to be part of the advocacy of messages opposed to their sincerely held Christian beliefs."

The court also held that the Commission's order substantially burdens the free exercise rights of HOO and its owners, in violation of Kentucky's Religious Freedom Restoration Act. Christian News reports on the decision. According to the Lexington Herald-Leader, an appeal of the court's decision is likely.

Suit Challenges Library's Rules For Use of Conference Rooms

Yesterday, Liberty Counsel announced that it has filed a federal lawsuit challenging the Conference Room Policy of the Wake County, North Carolina Public Library.  The Policy permits non-profit groups to use the library's conference rooms for cultural, civic and informal educational purposes, but not for religious instruction, religious services or religious ceremonies.  The complaint (full text) in Liberty Counsel, Inc. v. County of Wake, North Carolina, (ED NC, filed 4/24/2015) contends that the policy discriminates on the basis of content and viewpoint of speech.  It alleges that the policy violates free speech, free exercise and Establishment Clause protections of the federal and state constitutions.

Court Requires NY Transit Authority To Accept Anti-Islam Ads

In American Freedom Defense Initiative v. Metropolitan Transportation Authority, (SD NY, April 21, 2015), a New York federal district court granted a preliminary injunction to a pro-Israel advocacy group requiring the New York Metropolitan Transit Authority to accept the group's anti-Islam ad for display on the back of New York City buses. The ad included a picture of a man with his face largely covered by a keffiyeh and the language "Killing Jews is worship that draws us closer to Allah.  That's his jihad.  What's yours?"  The court found a likely infringement of plaintiff's free speech rights in a designated public forum.  It rejected the MTA's argument that the ad could be refused under its standards barring ads that will incite or provoke violence, saying that the MTA had not produced evidence that it would incite imminent violence. Reuters reports on the decision.  Last month, a Pennsylvania federal district court reached a similar conclusion regarding a different anti-Islamic ad from AFDI. (See prior posting.)

Evangelist Blocked From Festival Sues

St. Paul Pioneer Press reports on a lawsuit filed April 3 by the Center for Religious Expression (press release) on behalf of evangelist David Miller who was prevented by police from preaching at the 2014 Irish Fair-- an annual event on the Mississippi River near downtown St. Paul.  Miller and a group of friends, wearing expressive T-shirts, were about to enter the fair grounds to preach and hand out literature when they were told by police that the Irish Fair had a special-event permit, so it could make the rules (including banning protests). The lawsuit contends that the total ban on preaching at the festival being held on public property violates Miller's free speech rights.

Citizens Suit Challenges City's Removal of Cross From Dunes Area

A group of Grand Haven, Michigan residents filed suit on Wednesday in state court seeking to force the city to rescind a resolution it adopted in January to remove a 48-foot tall cross from Dewey Hill-- a critical dune. The complaint (full text) in Citizens of Grand Haven v. City of Grand Haven, (MI Cir. Ct., filed 4/1/2015), contends that the city's action violates the free speech and equal protection clauses of the Michigan Constitution.

According to a Nov. 2014 MLive article:

The cross first was erected on Dewey Hill in December 1964 and now only is raised 10 times a year with sponsorship from Grand Haven's First Reformed Church for Worship on the Waterfront. 

During the Grand Haven Coast Guard Festival, the cross is converted to an anchor.

The most recent series of events was triggered by a letter from Americans United which, under the public forum status of Dewey Hill, asked to put up a series of displays marking Festivus, promoting LBGT pride and marriage equality, promoting atheist rights, and promoting reproductive choice.

This led city council in January to pass a resolution to limit access to Dewey Hill and convert the cross into an anchor. (Jan. 6, 2015 MLive article).

The lawsuit filed this week contends:

Defendant's actions in singling out the Dewey Hill Cross, the target of the anti-religious group, and keeping the Coast Guard Anchor, the non-religious part of the monument, constitutes an action regulating speech in a traditional public free speech forum and discrimination on the sole basis of religion, in violation of the Michigan Constitution and Civil Rights Act.

The Grand Haven Tribune has more on the lawsuit.

Groups Challenge Residency Limits In Courthouse Open Forum Law

As previously reported, last December the Freedom From Religion Foundation (FFRF) sued Franklin County, Indiana, challenging a Nativity Scene placed on the Courthouse lawn.  The suit was dropped after the county enacted a law making the county courthouse a public forum for all types of expressive activities. (See prior posting.)  However this week, FFRF and the Satanic Temple have filed a new lawsuit against the county charging that the open forum law still violates their free expression rights.  The complaint (full text) in Freedom From Religion Foundation v. Franklin County, Indiana, (SD IN, filed 3/24/2015), contends that the provision in the open forum law limiting it to Franklin County residents is not narrowly tailored to further a substantial governmental interest.  Both plaintiffs were denied permits for displays. FFRF had applied to place a display of several cut-out figures on the Courthouse lawn from Nov. 29, 2015 to Jan. 6, 2016 to celebrate the December 15th "nativity" of the Bill of Rights. Satanic Temple wanted to erect a three-dimensional sculpture during the same time period.  FFRF issued a press release announcing the filing of the lawsuit.