Victim Buttons in Courtroom. Spectators wore buttons depicting murder victim; defense attorney objected; court overruled. State court confirmed the conviction, but 9^th Circuit overturned, saying the buttons interfered with the right to a fair trial by an impartial jury. Musladin v. Lamarque, 427 F.3d 653 (9^th Cir 10/21/05, No 03-16653). CERT GRANTED 4/17/06 (The US Supreme Court will decide this case next term, which begins Oct 2, 06.)

Sign Code Amendment: Billboard company challenged sign ordinance of Miami FL. City amended the code. Held: Defending the ordinance did not show that the city intends to return to the prior law. Signco did not carry its burden to show the case was not moot. National Adv. v. Miami, 402 F.3d 1329 (11^th Cir 2005, No 03-15593). Cert denied 2/21/2006.

"Choose Life" License Plates. Planned Parenthood said Louisiana’s voluntary program for "choose life" license plates is viewpoint discriminatory. Held: The challenge is barred by the federal Tax Injunction Act, which forbids federal courts from interfering with state taxing schemes. Henderson v. Stalder, 407 F.3d 351(5^th Cir 2005, No 03-306990). cert denied 6/26/06. Also: ACLU v. Bredesen, 441 F.3d 370 (6^th Cir 3/17/06, No 04-6393) (Tax Injunction Act does not block court jurisdiction; "Choose Life" plates are government speech). Cert denied 6/26/06.

Pamphlets on Vehicles: Challenge to 50 year old law prohibiting placing of pamphlets on private vehicles, when parked on public street, without owner’s consent. Held: Private cars are not a public forum, even if parked on public street. Law prevented littering & unauthorized use of private property. No free speech violation. Jobe v. Catlettsburg KY, 409 F.3d 261 (6^th Cir 2005, No 04-5222). Cert denied 10/3/05.

Attorney free speech

Discipline. Deputy District Attorney recommended dismissal of criminal case for errors in affidavit in support of warrant; supervisors proceeded with prosecution. DDA testified at hearing challenging the warrant, says he suffered adverse employment actions as a result. Held: When public employees make statements pursuant to their official duties, they are not speaking as citizens; First Amendment does not insulate their communications from employer discipline. Garcetti v. Ceballos, 126 S.Ct. 1951 (US Supreme, 5/30/06, No 04-473).

Retaliation. Criminal defense attorney claimed that prosecutor retaliated against him for filing motions on behalf of a client. Held: Courtroom speech is not free; it is controlled by procedural & evidentiary rules. The attorney speaks for the client, & has no personal free speech right in courtroom. Mezibov v. Allen, 411 F.3d 712 (6^th Cir 2005, No 03-3973). Cert denied 5/1/06.

Sanctions. Private employer forbade display in the workplace of any "offensive symbols," including Confederate flag. Trial court imposed sanctions on attorneys repping "Confederate Southern-American employees," who claimed their employer discriminated against them. Held: The action was frivolous; the rule did not cause any adverse employment action; no free speech violation in sanctioning the attorneys. Chaplin v. Du Pont Advance Fiber, 124 Fed.Appx 771 (4^th Cir 2005, Nos 04-1469, 04-1471, not officially published). Cert denied 10/6/06.

Buying Justice. Attorney was suspended from practice for 6 months for criticizing judge. Held: State Bar had power to suspend him; no protection for statements he was willing "to pay for justice," giving advice to judge about how to get along with other attorneys, etc. Statements interfered with orderly administration of justice. Lumumba v. Mississippi Bar, 912 So.2d 871 (Miss. 2005, No. 2003-BA-02418). Cert denied 10/3/05.

Bulldog Ads. Attorneys ran TV ads featuring a pit bull with a spiked collar & their phone number (1-800-PIT-BULL). State Bar sanctioned them for breaking advertising rules. Held: First Amendment does not prevent bar from sanctioning attorneys; their ads did not help public make informed decisions. Florida Bar v. Pape, 918 So.2d 240 (FL Supreme Ct. 2005; No SC04-40). Cert denied 3/27/06.

Public Forum / Religion

Kindergartner’s Jesus Poster: School student drew a poster with Jesus and people picking up trash. School folded over the part depicting Jesus. Held: the poster did not respond to the assignment to depict keeping the environment clean. Case returned to trial court to determine if the school’s actions were justified. Peck v. Baldwinsville School, 426 F.3d 617 (2d Cir 2005, No 04-4950). Cert denied 4/24/06.

In God We Trust: Lawyers who practice in the Government Center challenged the County Board’s decision to place "In God We Trust" prominently on the building. Held: placing the phrase on the building had a legitimate secular purpose: to depict the national motto. It did not matter that there was also a religious purpose. Lambeth v. Bd of Commissioners, 407 F.3d 266 (4^th Cir. 2005, No 04-1753). Cert denied 11/14/05.

City Council Prayer: Pantheist practitioner of Wiccan religion ("witchcraft") challenged her exclusion from list of those allowed to give non-sectarian prayer at city council. Held: No violation of Establishment Clause. City allowed a wide range of religious views, within the Judeo-Christian (monotheist) tradition. Simpson v. Chesterfield County, 404 F.3d 276 (4^th Cir. 2005, No 04-1045, 04-1141). Cert denied 10/11/05.

Hostility to Religion: Sculpture by college student, depicting Catholic bishop & entitled "Holier than Thou," was displayed on campus. Offended faculty member sued the public university, claiming violation of Establishment Clause for official hostility to religion. Held: University did not intend to disparage religion. The sculpture was one of thirty pieces in a unified art exhibit. O’Connor v Washburn Univ, 416 F.3d 1216 (10^th Cir 2005, No 04-3103). Cert denied 3/6/06.

Street Preacher, convicted of violating noise ordinance, did not appeal conviction & defaulted on his state appellate rights. He then challenged the noise law in federal court. Held: Federal court will not disrupt state’s policies or undo what state had done. Case dismissed. Moore v. Asheville NC, 396 F.3d 385 (4^th Cir 2005, No 04-1003). Cert denied 10/7/06.

SIGN REGULATION CASES

Overbreadth standing

Does a billboard company have "overbreadth standing" (the right to assert the claims of others) to challenge parts of a sign ordinance which do not apply to it? In Granite State Outdoor v. Clearwater, 351 F3d 1112 (11^th Cir Nov 03), one 3-judge panel held that signco could challenge only those parts of the sign ordinance under which its permits were denied. Seventeen months later, in Tanner Adv v Fayette County, 411 F3d 1272 (11^th Cir 2005) a different 3-judge panel of the same court refused to follow Clearwater, saying it was inconsistent with prior precedent. Tanner was then heard "en banc" (by a panel of 13 judges), which decided the case on mootness & left the overbreadth issue "for another day." Tanner v Fayette, 451 F.3d 777 (11^th Cir 6/9/06, No 04-13210). That day arrived four days later with CAMP Legal Defense v. Atlanta, 451 F.3d 1257 (11^th Cir 6/13/06, No 05-12114); a 3-judge panel held: the protest group had standing only as to rules applicable to them & procedures to which they were subject.

Similar cases: 

Billboard permit applications did not conform to city rules for size, height, maximum size of base, setback, space between sign faces, motion signs and commercial non accessory signs. All these rules were severable from other rules which signco wished to challenge. Held: Sign co must show injury, causation, and redressability with respect to each provision it challenges as overbroad. "Since most of the content based restrictions and procedural mechanisms which Advantages claims violate the First Amendment rights of other parties were not factors in the denial of its own permit applications, it cannot show causation with respect to them." These challenges fail for lack of constitutional standing. The restrictions which actually applied to the applications were all constitutional. Advantage Media v. Eden Prairie MN, 456 F.3d 793 (8th Cir. Aug. 1, 2006, No. 06-1035).

Also: Non-profit community group lacked standing to challenge prior version of sign ordinance. Advantage Media v. Hopkins MN, 408 F.Supp.2d 780 (D MN 1/05/06, No Civ04-4959).

Note: "overbreadth standing" is a key issue in several billboard cases now pending in several federal courts of appeal. If a split of judicial opinion develops, one of these cases should become a prime candidate for US Supreme Court.

Diminished Visibility: A compensable property right?

Regency Outdoor had billboards on private property near Century Blvd., leading to Los Angeles International Airport. City of LA planted mature palm trees on city property, which diminished the visibility of the billboards. Signco sued, claiming inverse condemnation, i.e., a taking of private property (visibility) which had to be compensated. 

Held: Regency has no visibility right warranting compensation. Activity that comports with the fundamental purposes served by the roads does not produce a private injury. The planting of trees along a road is, in general, fully consistent with the road’s use as an open public street and in fact may enhance both travel and commerce along the street. Regency cannot claim unfair surprise from the plantings. Local governments have long planted trees along roads for aesthetic reasons, to lessen the burdens of climate, and for other salubrious purposes. Anyone who purchases or occupies property along a public road is presumed aware of this custom. Denying compensation for reduced visibility, in and of itself, without an additional showing of a partial physical taking or substantially impaired access, visits no unfairness upon property owners or others who occupy roadside parcels. Regency Outdoor Advertising, Inc. v. City Of Los Angeles†, 39 Cal.4th 507(California Supreme Court, Aug. 7, 2006).

Georgia: In testing validity of sign ordinance under state constitution, trial court could not defer (without taking evidence) to legislator’s determinations that rules re: sign size & number were the "least restrictive means of achieving goals of traffic safety and esthetics." Coffey v. Fayette County, 280 Ga. 656, 631 S.E.2d 703 (Georgia Supreme, 6/26/06, No. S06A0055).

Oregon: Under Oregon state constitution, the term "content neutral" means that a particular restriction on expression applies to all expression, regardless of its subject or content. Rule requiring permit for off-premise signs, but not for on-premise signs, discriminated by content & thus violated state constitution. Outdoor Media Dimensions, Inc. v. Dept. of Transp, 340 Or. 275, 132 P.3d 5 (OR 3/23/06, No. ODOT 88691). Comment: Most courts, when interpreting the free speech right under the US constitution, hold that the on-site / off-site distinction is not content-based. See: Clear Channel Outdoor v. City of Los Angeles, 340 F.3d 810 (9^th Cir 2003).

Political Sign: Candidate for elective judge position challenged city sign law which restricted political signs to residential areas. Held: Under the city law, real estate signs may be erected without permits, but political signs require permits. This favors commercial speech over non-commercial; permit req’t for political signs cannot be enforced. Beaulieu v Alabaster AL, 454 F.3d 1219 (11^th Cir 6/30/06, No 04-16230).

McFadden v. Bridgeport, 422 F.Supp.2d 659 (D WV, 3/20/06, No 1:04CV225) (city law prohibiting political signs more than 30 days before or 48 hours after election was invalid).

Fehribach v. City of Troy, 412 F.Supp.2d 639 (ED Mich 1/30/06, No 04-40279) (display time limits for political signs - unconstitutional.)

Content Based Regulation? Exclusion of certain types of non-commercial messages from the term "off premises signs" did not favor commercial speech; city law necessarily drew distinctions among categories (construction, holiday decorations, political) but did not favor commercial signage. Summary judgment to city. Covenant Media v. Elgin IL, 2006 WL 573890 (ND IL 3/7/06, No. 05C 3453; reconsideration denied 2006 WL 1472694).

Favoring Commercial Speech - City's sign code defined "billboards" as containing only commercial messages, and allowed political messages only on temporary structures. Thus, by limiting the size of political messages to roughly 1/17 that of commercial ones, the gov't has favored commercial speech over non-commercial, which is unconstitutional. Trial court correctly ordered that sign code was not enforceable. KH Outdoor v. Trussville AL, 2006 WL 2194506 (11th Cir. Aug. 4, 2006, No. 05-12598.)

Shark "Sign?" Three dimensional shark structure at entrance to business was intended to attract attention, but since it did not convey information, it did not meet the city’s definition of "sign." Corpus Christi TX v Azoulay, 2006 WL 1172330 (TX App 5/4/06, not officially published).

Art Mural. When City required Cultural Affairs Permit for wall murals, building owner painted mural of "angry dinosaur" (Jurassic Park logo, without text) without permit. City took no action against the mural, but amended code to disallow art murals. Owner then sought to change art work to "Shrek." Held: first art was not grandfathered; new artwork was prohibited. Davis*Glick v Los Angeles, 2006 WL 772887 (CA App, 3/28/06, not officially published).

Freeway Billboards. State law did not explicitly allow non-commercial messages in any location where on-site commercial messages were allowed; it thus favored commercial speech & was unconstitutional to that extent. Remedy: California may not enforce Outdoor Advertising Act to prohibit non-commercial speech wherever the Act permits commercial speech. Maldonado v. Kempton, 422 FS2d 1169 (ND CA 3/23/06, No. C02-03167).

Billboard ban. Both old & new versions of sign ordinance banned billboards; ban was valid. New sign ordinance mooted challenge to prior law. KH Outdoor v Clay County FL, 410 F.Supp. 2d 1160 (MD FL 1/12/06, No 3:04CV214J32). Another case: City may ban offsite commercial billboards while allowing onsite billboards. Longview Outdoor v. Winter Garden FL, 426 F.Supp.2d 1269 (MD FL, 3/29/06, No. 6:04 CV 465).

Public Forum (expression on public property)

Street Banner Program: City repealed prior law on street banners (which had a general ban with exceptions), and adopted new rule restricting banner access to events sponsored or co-sponsored by city. Held: Challenge to former version of banner program is no longer viable. City can close a designated forum whenever it wants. Santa Monica Food Not Bombs v. Santa Monica CA, 450 F.3d 1022 (9^th Cir 6/16/06, Nos 03-56621, 03-56623).

Aerial Banner: Abortion protest group wished to display pictures of aborted fetuses on banners towed behind airplanes flying low and slow over Waikiki Beach, Honolulu. Held: Ban on aerial signs applies equally to all messages; airspace above beach is a non-public forum; no FAA pre-emption. Center for Bio-Ethical Reform†, 455 F.3d 910 (9^th Cir 7/6/06, No. 04-17496.) Another aerial banner case: Bruckner v. Pinellas County, 2006 WL 314510 (MD FL 2/9/06, No. 805CV1277).

Car For Sale. Resident challenged law forbidding "for sale" sign on car parked on city street. Held: Traffic safety and community esthetics justified the restriction on commercial speech. Burkow v Los Angeles, 119 FS2d 1076 (CD CA 2000) is wrongly decided and we decline to follow it. Pagan v. Fruchey, 2006 WL 1407991 (6^th Cir 5/19/06, No. 04-4414) (not officially published).

Public Bus. Government could prevent passenger on public bus from handing out religious literature to other passengers. Bus was not a public forum. Anderson v. Milwaukee County, 433 F.3d 975 (7th Cir 1/11/06, No. 05-1267).

Structure and location rules for signs

Flashing Sign. Accountant placed electronic sign in office window; it could display 21 characters, go blank & then display different a message. He was convicted of violating rule against flashing signs. Held: Even if city does not enforce the "no flashing" rule against time / temp, the rule is sufficiently tailored, and constitutional. Conviction affirmed. LaTour v. Fayetteville AR, 442 F.3d 1094 (8^th Cir 4/6/06, No 03-2824).

Window Signs: Donut shop owner challenged city rule limiting signs to 30% of window surface. Held: formal studies are not needed to justify the rule. It meets all tests under the federal & state constitutions. Salib v. Mesa AZ, 212 Ariz 446 (AZ App 5/3/06, No 1CA-CV04-0436).

Vehicle Mounted Sign. Tax preparer placed sign on roof of his car, parked it near his office during tax season. City cited him for illegal commercial advertising in public right of way. Held: The rule reduces visual clutter & driver distraction; both are legitimate goals. The law is valid. E&L Legal & Tax Services v. LaPuente CA, 2006 WL 1098047 (CA App 4/27/06, No B177702) (unpublished).

Size: City amended sign ordinance to remove on-site / offsite distinction and tightened limits for freestanding signs: 32 sf per face, 6' high. Held: City did not need to show it selected "least restrictive means" or justify its selection of 32 sf size limit. Prime Media v Franklin TN, 2006 WL 1359956 (6^th Cir 5/17/06, No 04-6324, unpublished).

Size & Height: After removing contested portions, prior sign code had separately enforceable rules on size, height, area, placement, lighting, safety codes; all applied in a content-neutral manner. Sign applications did not comply with code in effect on date of application; no valid claim for damages. Case dismissed. Boulder Sign v. Boulder City NV†, 2006 WL 1294390 (D NV 5/10/06, No. 2:04CV 314; reconsideration pending). Similar cases: KH Outdoor v. Trussville AL, 2006 WL 278577 (ND AL 1/31/06, No CV 03-HS-3278), Lucas Outdoor v. Crawfordsville IN, 840 N.E.2d 449 (IN App 1/18/06, No 54A04-0509).

Separation: Signco submitted one application for billboard permit; city did not respond; signco challenged sign law; city adopted new sign code. Held: new law moots request for injunctive relief; city’s evidence that the app violated a 1,000' separation rule (original ordinance) was not rebutted by signco; summary judgment to city. Covenant Media v. North Charleston SC†, 2006 WL 1967308 (D SC, 7/12/06, No 2:05-01394).

Nonconforming: sign applications did not meet rules regarding size, height, density, spacing; these rules were not challenged; signco suffered no damage; summary judgment to city. Advantage Media v. Eden Prairie MN, 405 F.Supp.2d 1037 (D MN, 12/13/05, No 042582).

Zoning and Permits

Late Application: Signco erected nonconforming billboards without permits, then applied for permits under city code stating city "will process" late filed application; city did not process the late application. Held: Case returned to trial court to determine if city’s treatment of late application violated equal protection. Valley Outdoor v. City of Riverside CA, 446 F.3d 948 (9^th Cir 4/27/06, No 04-55029).

Jurisdiction: As part of highway project which required removal of nine billboards, state Dept. of Transportation agreed to convey to signco unneeded portions of condemned land, on which signco could erect new signs. County claims new signs violate local zoning and building codes. Held: State agency’s exemption from local zoning codes did not transfer to signco. Clear Channel had to conform to local codes. Pima County v. Clear Channel OD, 212 Ariz 48, 127 P.3d 64 (AZ App 1/25/06, No 2CA-CV2005-0025).

Setback: Zoning Board properly exercised its power to make a billboard setback rule on a case-by-case basis, after considering "landscaping, ease of access, light and air and costs." Evansville Outdoor v. Princeton Plan Comm’n, 849 N.E.2d 630 (IN App 6/19/06, No 26A05-cv-306).

Moratorium: Challenge to billboard moratorium was mooted when city later enacted complete ban. Bradley Outdoor v Florence AL, 2006 WL 1653329 (AL Ct Civ Appeals, 6/16/06, No. 2040915).

Extra-Territorial Jurisdiction. When city adopted new zoning ordinance that extended jurisdiction into freeway right of way, new law applied to billboards previously permitted by state but not yet built. Metro Dev. Commission v. Pinnacle Media, 836 N.E.2d 422 (IN 2005), reconfirmed, 846 N.E.2d 654 (IN 5/3/06, No 49S05-0511-CV-510).

Rebuild Permits: After billboards were damaged by wind, owner challenged city requirement for rebuilding permit. Held: city law was not pre-empted by state law; city could require rebuild permits. Viacom v. Arcata CA, 140 Cal.App.4th 234 (CA App, 6/8/06, No. A110628).

Nonconforming sign lost its "nonconforming" status when moved from original position. Cracker Barrrel v. Plainfield IN, 848 N.E.2d 285 (IN App 5/24/06, No 32A01-0507).

Replacement: Hair shop owner replaced non-illuminated wooden sign with illuminated metal sign which violated current size rule. Held: Owner had to conform to current law, including "Design Guidelines." Sicilano v Tiburon†, 2006 WL 864435 (Cal.App. 4/5/06, No. A108147; not officially published).

Variance. Court’s review of local legislators' decisions on zoning was extremely narrow; denial of variance for billboards was adequately supported by record. Constitutional claims rejected; summary judgment to city. Spratlin Outdoor v. Douglasville GA, 2006 WL 826077 (ND GA 3/27/06, No 1:04CV3444).

Sign litigation:

"Catalyst Fee:" Signco challenged city’s sign law; city changed law; signco abandoned all claims except attorney fee award as a catalyst for change of law benefitting the public. Held: Lawsuit did not impose a financial burden out of proportion to signco’s stake in the outcome. Per owner’s statement, signco stood to net $378K per year from proposed signs. Fee motion denied. Covenant Media v. Huntington Park CA†, 2006 WL 1582004 (USDC CD CA 6/5/06, No CV 05-2885). 

Plaintiff signco’s "catalyst theory" attorney fee motion was denied because company failed to notify city of its grievances and proposed remedies before filing suit, Get Outdoors v. San Diego,† 2005 WL 3591964 (SD CA 12/21/05, No.03-1436) (city’s defense fee motion was denied later).

Kennedy v. Avondale Estates GA, 2006 WL 826194 (ND GA 3/29/06, No 1:00CV1847) both sides claim fees; both requests denied.

Consent Decree / Fee: Signco challenged city’s removal order; parties settled with signco dropping suit and city entering into consent decree. Held: Signco is prevailing party; consent decree "embodied all the relief sought;" this is a judicially sanctioned change in the relationship of the parties. Fees awarded at rate of $200 / hr. Lamar v. Van Buren, 2006 WL 1133309 (USDC Mich, 4/27/06, No 04-2500, 04-2521.)

Defense fee: Prior state court action barred second action in federal court; trial court’s award to defense fees to city was justified because the federal action was frivolous. Davidson v. Culver City, 159 Fed.Appx.756 (9^th Cir 12/1/05, No 04-56889, unpublished).

Condemnation action concerned only compensation for real property; billboards were personal property, so trial court did not have jurisdiction to make separate award for billboard structures. Commissioner of Transportation v. Rocky Mountain, 894 A.2d 259 (CT 4/11/06).

Assignment: Lessees of general advertising signs were granted replacement permits, city then suspended the permits pending demolition permits. Lessees sued under federal civil rights act. Held: lessees are not owners of the signs; civil rights actions are personal in nature and cannot be assigned. Case dismissed. Advertising Display v San Francisco, 2006 WL 1646138 (USDC ND CA 6/14/06, No D047158).

NOTICE:

The case summaries provided in this newsletter necessarily omit details and issues from the subject cases. To understand a summarized case, read it in full. 

This newsletter is published for informational and educational purposes. Nothing in this newsletter constitutes legal advice. Receipt or reading of this newsletter does not form an attorney-client relationship. For legal guidance on a particular case or situation, contact a licensed attorney who is competent in the subject area.

Copyright 2006 Randal R. Morrison

Tel.: 619.234.2864

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email: rrmatty@yahoo.com

Sabine & Morrison, Attorneys

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