Saturday, December 15, 2012
Prayer mural in public high school violated the Establishment Clause
The federal district court for Rhode Island ordered the removal of a prayer mural from the auditorium of a public high school on First Amendment Establishment Clause grounds. Ahlquist v. City of Cranston, 840 F.Supp.2d 507 (D.R.I. Jan. 11, 2012).
Doggy daycare mural held illegal under county sign ordinance
Wag More Dogs, a “doggy daycare” located adjacent to a public dog park in Arlington, Virginia, commissioned a mural on the back of its building to “beautify the area” and “create goodwill with the people who frequented the dog park.”
After the mural was completed, Wag More Dogs was notified that it violated the county’s sign ordinance and had to be removed or covered over. Wag More Dogs then filed suit against the county claiming a variety of First Amendment violations. The district court dismissed, and the Fourth Circuit affirmed on appeal. Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4th Cir. 2012).
The court first addressed the issue of content-neutrality and explained that it applied a three-pronged test:
Next, the court found that the ordinance satisfied the intermediate scrutiny test. This standard, which is applied in commercial speech cases, permits content-neutral restrictions on speech if they further a substantial government interest, are narrowly tailored to further that interest, and leave open ample alternative channels of communication. As the court explained, the sign ordinance was enacted to promote traffic safety and enhance aesthetics, both of which are substantial government interests, and the ordinance’s size and location restrictions were narrowly tailored to further those interests because they did “no more than eliminate the exact source of the evil it sought to remedy.” Finally, the ordinance left open ample alternative channels of communication by generally permitting the display of all types of signs, subject to only size and location restrictions. As the court noted in this regard, Wag More Dogs could have lawfully displayed its mural if it were no more than 60 square feet in size.
The court also rejected Wag More Dogs’ argument that the mural was non-commercial speech entitled to greater First Amendment protection. As the court noted, the mural incorporated cartoon dogs from the business’ logo and, more importantly, Wag More Dogs had conceded in its complaint that the painting was meant to attract customers from the dog park.
Next, the court rejected Wag More Dogs’ contention that the ordinance’s general definition of the term “sign” rendered the entire regulation void for vagueness. As the court explained, “Wag More Dogs’ entreaties to view the definition of ‘sign’ in a vacuum and envision ways in which the provision is inadequate amount to no more than the kind of ‘speculation and possible vagueness in hypothetical situations’ that we will not consider. Wag More Dogs has simply not alleged that application of the ‘sign’ definition undermines the conclusion that the Sign Ordinance ‘is surely valid in the vast majority of its intended applications.”
Turning to the standards of enforcement, the court rejected Wag More Dogs’ allegations of discriminatory enforcement because its contentions amounted to nothing more than speculations.
Finally, the court disagreed with Wag More Dogs’ allegation that the comprehensive sign plan provision operated as a prior restraint on speech. Rather, the court found that the provision met the standards required of content-neutral licensing regulations, namely, that they must “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.” This standard was met, the court found, by terms in the provision that allowed the Arlington Board to grant an exemption if it found that the proposed use would not “(1) affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use; (2) be detrimental to the public welfare or injurious to property or improvements in the neighborhood; or (3) be in conflict with the purposes of the master plans of the County.”
Sources:
After the mural was completed, Wag More Dogs was notified that it violated the county’s sign ordinance and had to be removed or covered over. Wag More Dogs then filed suit against the county claiming a variety of First Amendment violations. The district court dismissed, and the Fourth Circuit affirmed on appeal. Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4th Cir. 2012).
The court first addressed the issue of content-neutrality and explained that it applied a three-pronged test:
A regulation is not a content-based regulation of speech if (1) the regulation is not a regulation of speech, but rather a regulation of the places where some speech may occur; (2) the regulation was not adopted because of disagreement with the message the speech conveys; or (3) the government’s interests in the regulation are unrelated to the content of the affected speech.In the court’s view, the sign ordinance at issue in this case was clearly content-neutral. As the court explained, the ordinance was adopted to regulate land use, not to stymie a particular disfavored message, and it did not become a content-based restriction simply because it differentiated between certain types of speech (e.g. by imposing size requirements on “business signs” that did not apply to similar noncommercial signs).
Next, the court found that the ordinance satisfied the intermediate scrutiny test. This standard, which is applied in commercial speech cases, permits content-neutral restrictions on speech if they further a substantial government interest, are narrowly tailored to further that interest, and leave open ample alternative channels of communication. As the court explained, the sign ordinance was enacted to promote traffic safety and enhance aesthetics, both of which are substantial government interests, and the ordinance’s size and location restrictions were narrowly tailored to further those interests because they did “no more than eliminate the exact source of the evil it sought to remedy.” Finally, the ordinance left open ample alternative channels of communication by generally permitting the display of all types of signs, subject to only size and location restrictions. As the court noted in this regard, Wag More Dogs could have lawfully displayed its mural if it were no more than 60 square feet in size.
The court also rejected Wag More Dogs’ argument that the mural was non-commercial speech entitled to greater First Amendment protection. As the court noted, the mural incorporated cartoon dogs from the business’ logo and, more importantly, Wag More Dogs had conceded in its complaint that the painting was meant to attract customers from the dog park.
Next, the court rejected Wag More Dogs’ contention that the ordinance’s general definition of the term “sign” rendered the entire regulation void for vagueness. As the court explained, “Wag More Dogs’ entreaties to view the definition of ‘sign’ in a vacuum and envision ways in which the provision is inadequate amount to no more than the kind of ‘speculation and possible vagueness in hypothetical situations’ that we will not consider. Wag More Dogs has simply not alleged that application of the ‘sign’ definition undermines the conclusion that the Sign Ordinance ‘is surely valid in the vast majority of its intended applications.”
Turning to the standards of enforcement, the court rejected Wag More Dogs’ allegations of discriminatory enforcement because its contentions amounted to nothing more than speculations.
Finally, the court disagreed with Wag More Dogs’ allegation that the comprehensive sign plan provision operated as a prior restraint on speech. Rather, the court found that the provision met the standards required of content-neutral licensing regulations, namely, that they must “contain adequate standards to guide the official’s decision and render it subject to effective judicial review.” This standard was met, the court found, by terms in the provision that allowed the Arlington Board to grant an exemption if it found that the proposed use would not “(1) affect adversely the health or safety of persons residing or working in the neighborhood of the proposed use; (2) be detrimental to the public welfare or injurious to property or improvements in the neighborhood; or (3) be in conflict with the purposes of the master plans of the County.”
Sources:
- Wag More Dogs, LLC v. Cozart, 680 F.3d 359 (4th Cir. 2012)
- Tom Jackman, Arlington’s Wag More Dogs mural is no more, The Washington Post State of NoVa Blog, Sep. 25, 2012
Only living people can file invasion of privacy claims in Louisiana
In Tatum v. New Orleans Aviation Board, 40 Media L. Rep. 1649 (La. App. Apr. 11, 2012), the plaintiff alleged that an image of his late mother, Ellyna C. Tatum, was improperly used in a mural on the walls of the New Orleans International Airport terminal. Mr. Tatum sought damages of more than $14 million, claiming that the airport reproduced the mural in the form of posters, fine art prints, and postcards “for monetary sale” without obtaining his consent. The Court of Appeals of Louisiana dismissed the challenge, however, finding that a cause of action for the tort of invasion of privacy may not be asserted on behalf of the deceased.
Art authenticator’s defamation claims dismissed
Most of the defamation claims brought by Canadian art authenticator Peter Paul Biro against the New Yorker had to be dismissed, a federal court ruled. As the court explained, “There is little question that a reader may walk away from the Article with a negative impression of Biro, but that impression would be largely the result of statements of fact that Biro does not allege to be false. There can be no claim for an overall defamatory impact from the reporting of true statements beyond the specific defamatory implications that may arise from those specific statements.” Biro v. Conde Nast, 2012 U.S. Dist. LEXIS 112466 (S.D.N.Y. Aug. 9, 2012).
Court approves governor’s removal of pro-labor mural against First Amendment claims
The governor of Maine did not violate the First Amendment by removing a large state-owned mural, commissioned by the previous administration, from its location on the walls of a small waiting room for visitors to the Maine Department of Labor. Newton v. LePage, 2012 U.S. App. LEXIS 24559 (1st Cir. Nov. 28, 2012).
The mural at issue in this case (pictured above) was painted by Judy Taylor and depicted a shoemaker teaching an apprectice, child laborers, women textile workers, workers casting secret ballots, the first Labor Day, woods workers, striking workers, labor reformers, women working during World War II, and the future of Maine labor.
Governor LePage sought to have the mural removed after he was sworn into office in 2011, citing complaints that the mural was pro-labor and gave an impression that the Department of Labor was not equally receptive to both businesses and workers. After the mural was removed, he stated that his objection to the mural was not due to its depiction of organized labor, but rather to the source of its funding. As he explained in an interview, “the money was taken out of the unemployment insurance fund which is dedicated to provide benefits to unemployed workers. They robbed that account to build the mural.”
Five residents sued the governor, claiming that the mural’s removal was impermissibly content and viewpoint-based. The First Circuit disagreed, however, explaining that “It is not the mural standing alone which is at issue, but what the mural’s presence in the MDOL waiting room signified. The message the government did not wish to portray, of non-neutrality, came from the particular location of the mural; the government did not have an objection to an alternative location…. The government, without violating the First Amendment, may, in this setting, choose to disassociate itself from an endorsement implicit from the setting for the mural, which it reasonably understood as interfering with the message of neutrality the administration wishes to portray. This is so whether the mural is anti-labor or pro-labor…. Many cases recognize that the government must have some discretion as to the choice of art it puts on the walls of its offices, even where the government is acting as an arts patron. It has discretion to make aesthetic judgments, with which some will agree and others will disagree…. Circuit courts have routinely rejected First Amendment claims brought against government officials who have chosen to remove art works, offensive to some but not others, from the walls of working government institutions on the grounds they were inappropriate to that location. Further, the law clearly gives governments leeway to take into consideration the problem of the captive audience and complaints it has received from those who viewed the art work while visiting government offices for other reasons.”
Sources:
- Newton v. LePage, 2012 U.S. App. LEXIS 24559 (1st Cir. Nov. 28, 2012)
- Jennifer Epstein, Maine governor removes labor mural, Politico, Mar. 28, 2011
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