Planning Law Division Webcast Special Topics in Planning

Planning & Law Division Webcast: Special Topics in Planning and the First Amendment: Signs, Adult Businesses, Religious Land Uses, and More APA Planning and Law Division / December 14, 2017 Source: New York Times

Your Presenters Brian Connolly Otten Johnson Robinson Neff + Ragonetti, P. C. Denver, Colorado Evan Seeman Robinson & Cole LLP Hartford, Connecticut Daniel Bolin Ancel Glink Diamond Bush Di. Cianni & Krafthefer, P. C. Chicago, IL 2

PUBLIC PROTESTS AND PARADES

Defining Public Property • Types of public property – Public real property: parks, streets, government buildings, land that is fee-owned by government – Public personal property or fixtures: vehicles (transit vehicles, others), utility poles, signs – Other property: easements, non-fee-owned right-ofway, leased property • Owned by: federal, state, local governments – General-purpose governmental entities – Special districts, authorities Planners and the Public Realm / May 9, 2017 4

Public Forum Classifications Source: theblaze. com Source: Merced Sun Star Source: NBC San Diego Planners and the Public Realm / May 9, 2017 5

Traditional and Designated Public Forum Traditional • Streets • Sidewalks • Parks “[S]treets and parks. . . have immemorially been held in trust for the use of the public and, time out of mind, have been used for the purposes of assembly, communicating thoughts between citizens, and discussing public questions. ” -Hague v. CIO, 307 U. S. 496, 515 (1939) Designated: Government may, by fiat and intentionally, open up some government property for speech activity akin to traditional public fora Planners and the Public Realm / May 9, 2017 6

Limited or Nonpublic Forum • Government property opened up for limited range of speakers or topics • Subject to closure • Examples: – Student group meetings (see Widmar v. Vincent, 454 U. S. 263 (1981)) – Utility poles (see Members of the City Council of Los Angeles v. Taxpayers for Vincent, 466 U. S. 789 (1984)) – Sidewalks at post offices (see U. S. v. Kokinda, 497 U. S. 720 (1990)) – Airport advertising or protest – Bus advertising – Mailboxes Planners and the Public Realm / May 9, 2017 7

Type of forum Traditional or designated Neutrality Analysis Content neutral Significant interest No significant interest Content based Limited or nonpublic Government interest Viewpoint based Compelling interest No compelling interest Viewpoint neutral Tailoring Result Narrow, ample alternative channels Not narrow, no alternatives Least restrictive means Not least restrictive means Reasonable Not reasonable Nonforum Planners and the Public Realm / May 9, 2017 8

Permitting • Prior restraint doctrine – Procedural safeguards • Need brief timeframe for review and issuance of permits – Unbridled discretion • Need sufficiently precise approval criteria to ensure that administrative officials do not have broad discretion to approve or deny permits Planners and the Public Realm / May 9, 2017 9

ADULT BUSINESSES

Limits of First Amendment Protection • Obscenity doctrine – Falls outside of the scope of First Amendment protection – Generally applies to printed or published materials – “[W]orks which, taken as a whole, appeal to the prurient interest in sex, which portray sexual conduct in a patently offensive way, and which, taken as a whole, do not have serious literary, artistic, political, or scientific value. ” – Miller v. California, 413 U. S. 15 (1973) • Adult bookstores, video stores, nude dancing establishments, etc. are generally purveyors of protected speech – But prohibitions on full public nudity can be constitutionally applied as regulations of conduct. – Erie v. Pap’s A. M. , 529 U. S. 277 (1992) Planners and the Public Realm / May 9, 2017 11

Secondary Effects Doctrine • Key cases – Young v. American Mini Theatres, Inc. , 427 U. S. 50 (1976) – City of Renton v. Playtime Theatres, Inc. , 475 U. S. 41 (1986) – City of Los Angeles v. Alameda Books, 535 U. S. 425 (2002) • Cases all deal with municipal ordinances that either agglomerate or disperse adult business or entertainment uses Planners and the Public Realm / May 9, 2017 12

Secondary Effects Doctrine “Even though the determination of whether a particular film fits that characterization turns on the nature of its content, we conclude that the city’s interest in the present and future character of its neighborhoods adequately supports its classification of motion pictures. ” -Young, 427 U. S. at 71 -73 Planners and the Public Realm / May 9, 2017 13

Secondary Effects Doctrine • Evidentiary requirements – Local governments may rely on other jurisdictions’ experience – Need not replicate exactly other jurisdictions’ regulatory approaches Planners and the Public Realm / May 9, 2017 14

Content Neutrality and Secondary Effects • Where a law is targeted at addressing secondary effects, intermediate scrutiny applies – regardless of possible content bias • Reed does not change this – Cricket Store 17, LLC v. City of Columbia (4 th Cir. 2017) (no reference to Reed; applies secondary effects doctrine) – Phantom Ventures, LLC v. De. Priest (D. Mass 2017) (cannot rely on posthoc justifications re: negative secondary effects) – Cornell Restaurant Ventures, LLC v. City of Oakland Park (11 th Cir. 2017) (no reference to Reed; applies secondary effects doctrine) Planners and the Public Realm / May 9, 2017 15

SIGNS

Reed v. Town of Gilbert: Background Source: azcentral. com • Sign code contained 23 exemptions from permitting, including for political, ideological, and temporary event signs • Different size, height, numerical, and display time limitations for each of the foregoing categories 17

Reed v. Town of Gilbert: Outcome • Distinctions between forms of noncommercial speech are content based – “Government regulation of speech is content based if a law applies to particular speech because of the topic discussed or the idea or message expressed. ” – “[C]ommonsense meaning of the phrase ‘content based’ requires a court to consider whether a regulation of speech ‘on its face’ draws distinctions based on the message a speaker conveys. ” 18

Reed v. Town of Gilbert: Outcome • Apply strict scrutiny • Law was not narrowly tailored to Town’s proffered interests – Town failed to show that limiting temporary event signs more than other temporary signs reduced visual clutter, etc. 19

Examples of Time, Place and Manner Regulations • Maximum size/height • Maximum number per lot/building/support structure • Specific sign locations – – – corner lots setbacks/spacing zoning districts uses corridors • Prohibited signs • Regulations of materials, lighting and form – – – – internal/external lighting flashing/animation neon materials/colors* monument/pole signs design review and incentives Cabinet/channel letter wall signs *Note: Federal protection of color of federally -registered trademarks/logos.

Content Neutrality: Implications • A regulation that is “content-based” will be subject to strict scrutiny: compelling governmental interest, least restrictive means, and narrow tailoring • A regulation that is “content-neutral” will be subject to intermediate scrutiny: significant/important governmental interest unrelated to suppression of speech, substantially related means, narrow tailoring, and ample alternative channels for communication • Regulations of commercial speech are subject to the Central Hudson intermediate scrutiny test 21

Commercial Speech Doctrine • Commercial speech is reviewed differently from noncommercial speech – Commercial speech gained First Amendment protection in 1975 – Content neutrality not required (but…) • Central Hudson test: (1) lawful speech, (2) substantial governmental interest, (3) regulation must directly advance governmental interest, and (4) no more extensive than necessary 22

PANHANDLING AND SOLICITATION

Panhandling and Solicitation Laws • Typical structure – “Vocal appeal for an immediate donation” – Targeting the approach “for the purpose of” – Aggressiveness – Standing in medians, traffic islands, drive lanes • Inherent tensions Source: ktrs. com – Safety and comfort of public, aesthetics, economic development, vibrant public spaces vs. – Free speech of underprivileged, minority community members 24

Pre-Reed Treatment • Panhandling bans found content based: – – – • ACLU v. City of Las Vegas, 466 F. 3 d 784 (9 th Cir. 2006) (Solicitation: "to ask, beg, solicit or plead, whether orally, or in a written or printed manner, for the purpose of obtaining money, charity, business or patronage, or gifts or items of value for oneself or another person or organization. “) Clatterbuck v. City of Charlottesville, 708 F. 3 d 549 (4 th Cir. 2013) (“Solicit means to request an immediate donation of money or other thing of value from another person, regardless of the solicitor's purpose or intended use of the money or other thing of value. A solicitation may take the form of, without limitation, the spoken, written, or printed word, or by other means of communication (for example: an outstretched hand, an extended cup or hat, etc. ). ”) Speet v. Schuette, 726 F. 3 d 867 (6 th Cir. 2013) (Michigan statute criminalizing begging) Panhandling bans found content neutral: – – ISKCON of Potomac, Inc. v. Kennedy, 61 F. 3 d 949, 954 -55 (D. C. Cir. 1995) (National Park Service regulation of displays on the National Mall enforced against Krishna sankirtan) Thayer v. City of Worcester, 755 F. 3 d 60 (1 st Cir. 2014) (Souter, J. ) (“the text of the ordinances does not identify or affect speech except by reference to the behavior, time or location of its delivery, identifying circumstances that raise a risk to safety or that compromise the volition of a person addressed to avoid solicitation”) 25

Panhandling and Solicitation Laws • Norton v. City of Springfield, 806 F. 3 d 411 (7 th Cir. • Mc. Laughlin v. City of Lowell, 140 F. Supp. 3 d 177 (D. Mass. 2015) (aggressive panhandling) Thayer v. City of Worcester, 144 F. Supp. 3 d 218 (D. Mass. 2015) (SCOTUS granted cert, vacated, remanded) Working America, Inc. v. City of Bloomington, 142 F. Supp. 3 d 823 (D. Minn. 2015) (licensing for solicitation: "Going from place-to-place (1) advertising or selling any product, service, or procuring orders for the sale of merchandise or personal services for future delivery or future performance; or (2) seeking donations of money or property on behalf of any person, organization or cause. ”) Browne v. City of Grand Junction, 85 F. Supp. 3 d 1249 (D. Colo. , 2015) Homeless Helping Homeless, Inc. v. City of Tampa, No. 8: 15 -CV-1219 -T-23 AAS (M. D. Fla. Aug. 5, 2016) Vivint Louisiana, LLC v. City of Shreveport, ___ F. Supp. 3 d ___, 2016 WL 5723983 (W. D. La. Sep. 30, 2016) (holding that ban on door-to-door commercial solicitation ban was constitutional) • • • 2015) (panhandling ban) Source: ACLU of Mass. 26

Panhandling and Solicitation Laws Norton v. City of Springfield, No. 15 -3276, slip op. , 2015 WL 8023461 (C. D. Ill. Dec. 4, 2015) • 7 th Circuit: old ordinance was content neutral time, place, manner regulation (768 F. 3 d 713 (2014)) • Supreme Court decided Reed • 7 th Circuit rehearing in 2015: old ordinance was content based on its face (806 F. 3 d 411 (2015)) • New ordinance passes—still content based! 27

The Religious Land Use and Institutionalized Persons Act Evan J. Seeman Robinson & Cole LLP

What Is RLUIPA? Federal Zoning Statute Supremacy Clause Does Not Override Zoning Can Regulate Religious Uses

When Does RLUIPA Apply? What is “Religious Exercise”? What is a “Land Use Regulation”?

Types RLUIPA Claims Substantial Burden Provision Burwell v. Hobby Lobby Stores, Inc. , 134 S. Ct. 2751 (2014) Different tests in different circuits Fact intensive inquiry What is the religious use sought? Can religious group meet religious need in another way? Equal Terms Provision Different tests in different circuits Facial/As-Applied challenges

Types of RLUIPA Claims Nondiscrimination Provision Codification of Equal Protection Clause Chabad Lubavitch of Litchfield County, Inc. v. Litchfield Historic District Comm’n, 768 F. 3 d 183 (2 d Cir. 2014) Exclusions and Limits Provision Cannot totally exclude Cannot unreasonably limit

How to Avoid a RLUIPA Claim Educate Local Officials Control the Process and the Message Work with Religious Applicant Assess Zoning Code Assess Zoning Map Safe Harbor Provision

The Establishment Clause & Legislative Prayer Evan J. Seeman Robinson & Cole LLP

The Establishment Clause Prohibits governmental action that “aid[s] one religion, aid[s] all religions, or prefer[s] one religion over another. ” Everson v. Board of Ed. of Ewing, 330 U. S. 1, 15 (1947)

Establishment Clause Claims Most Frequently Outside Planning Context v Public religious displays v Private religious displays on public property v Examples: Ten Commandments monument, nativity scenes, holiday displays, religion in public schools

Establishment Clause Claims Planning Context Examples v Advancement of Religion Over Non-Religion v Denominational Discrimination v Excessive Entanglement with Religion

Legislative Prayer v Town of Greece v. Galloway, 134 S. Ct. 1811 (2014) v Marsh v. Chambers, 463 U. S. 783 (1983) v Aftermath of Greece decision v Satanic Prayer Showdowns v Recent Case Examples

Legislative Prayer v Aftermath of Greece decision v Satanic Prayer Showdowns v Recent Case Examples v Lund v. Rowan County (4 th Cir. 2017) v Bormuth v. County of Jackson (6 th Cir. 2017) v Cambridge Christian School, Inc. v. Florida High School Athletic Association (M. D. FL 2016)

Holiday Displays Evan J. Seeman Robinson & Cole LLP

Types of Claims v. Free Exercise of Religion/RLUIPA v. Establishment Clause

Establishment Clause Examples Public Religious Displays

More Public Displays Satanist Display

More Public Displays Festivus Pole

Private Displays Zombie Nativity Scene

Excessive Private Displays

Militia Right or Individual Right? First Amendment Analogies Second Amendment Two-Part Test Prior Restraints Gun Shops, Firing Ranges and Free Speech

Firing Ranges Total Ban Unconstitutional Ezell v. City of Chicago, 651 F. 3 d 684 (7 th Cir. 2011) (“Ezell l”) Ezell v. City of Chicago, 846 F. 3 d 888 (7 th Cir. 2017) (“Ezell ll”) - Zoning Requirements - Operational Requirements - Construction Requirements Gun Shops, Firing Ranges and Free Speech

Gun Shops - Illinois Ass'n of Firearms Retailers v. City of Chicago, 961 F. Supp. 2 d 928, 930 (N. D. Ill. 2014) - Second Amendment Arms v. City of Chicago, 135 F. Supp. 3 d 743 (N. D. Ill. 2015) - Teixeira v. Cty. of Alameda, 873 F. 3 d 670, 673 (9 th Cir. 2017) - Kole v. Vill. of Norridge, No. 11 C 3871, 2017 WL 5128989 (N. D. Ill. Nov. 6, 2017) Gun Shops, Firing Ranges and Free Speech

Total Ban Difficult to Defend Does Regulation Affect Core Right? Develop Empirical Support in Support of Regulations Gun Shops, Firing Ranges and Free Speech

Open Meetings Public Records Retention Social Media: Government Use

Discrimination Copyright Issues Social Media: Government Use

First Amendment - Comments - Blocking Social Media: Government Use

Employees behaving badly… • 28 percent of employers report that they've fired people for using the Internet for non-workrelated activity (such as shopping online or checking out Facebook) during the workday. • 18 percent have dismissed employees because of something they posted on social media. Social Media: Public Employee Use

Employees behaving badly So many examples. . . Social Media: Public Employee Use

You’re hired! Now you’re fired • Illinois Governor’s aide was fired on his first day on the job for tweeting things such as: “I bet you liked that #fag” “To the Indian people in the library: SHUT THE F--- UP!” “Maybe body slamming reporters is the winning formula for republicans in IL? ” • Although these tweets were posted years ago, what’s in the past did not stay with him in the past Social Media: Public Employee Use

Fire Chief’s Fiery Comments Fuel Firing • Fire department chief posted on his Facebook, “My aide had an outstanding idea. . lets all kill someone with a liberal – then maybe we can get them outlawed too! Think of the satisfaction of beating a liberal to death with another liberal – its almost poetic. ” • A Facebook Friend then commented, “But…was it an ‘assult liberal? ’ Gotta pick a fat one, those are the ‘high capacity’ ones. Oh pick a black one, those are more ‘scary’. Sorry had to perfect on a cool idea!” • The chief liked this comment • The department’s interest in preventing disruption outweighed the chief’s interest in speaking out on Facebook about “public concern” • This also highlights the idea that liking a Facebook post makes that person attributable to the post, regardless if they wrote it or not Social Media: Public Employee Use

No credibility, no job • Police officer was terminated after posting the following on her Facebook page: “This year we lost two gorillas, one is in heaven and one is moving out of the White House. One will be missed. One will not be. ” • The essential function to the officer’s job is the ability to testify in court to support an arrest • When her credibility was sufficiently damaged from the post, she could no longer serve as a witness in any case Social Media: Public Employee Use

Fire Chief’s Message to Staff About Possible Layoffs Not Protected Speech • Fire Chief posted on his Facebook page telling personnel they would not have a job after a certain date because of insurance related issues • Fire Chief stated he did so to inform employees that they could start looking for other work • Statements caused firefighters to quit and diminished the morale among the remaining staff Social Media: Public Employee Use

Zoo Worker Fired • Brookfield Zoo fired an employee for posting the comment “rude a** white people” in an Instagram selfie, which she then shared to Facebook. • Photo showed her wearing her Brookfield Zoo uniform and she tagged the location as the Brookfield Zoo. • Justifiable termination? Social Media: Public Employee Use

Where are we going, and why are we in this handbasket? • Tenured teacher created a blog. • Examples of posts: • She referred to students as “jerk, ” “rat-like, ” “dunderhead, ” “whiny, simpering grade-grubber with an unrealistically high perception of own ability level” and “frightfully dim. ” • She wrote that parents were “breeding a disgusting brood of insolent, unappreciative, selfish brats. ” Social Media: Public Employee Use

“I wish I could get fired…” “I wish I could get fired some days, it would be easier to be at home than to have to go through this. ” Sometimes, wishes do come true. Social Media: Public Employee Use

Bad teacher credit: @Carly. Crunk. Bear on Twitter Social Media: Public Employee Use

“Patient privacy, what’s that? ” A dispatcher posts a screenshot of a patient call, including name, personal information, and description of a medical emergency. Justifiable termination? Social Media: Public Employee Use

“Lifeguard style” Social Media: Public Employee Use

Ok to swear at your boss? Bob is a nasty mother f***** don’t know how to talk to people. F*** his mother and entire f****** family. What a LOSER!!! Vote yes for the UNION. Several employees saw the post, as did members of management, and he was fired. Protected speech? Social Media: Public Employee Use

Acting in official capacity? • County district attorney blogged about local politicians (called them liars, etc. ) • Politicians sued district attorney and county • Court dismissed lawsuit – found DA was not acting in official capacity, and his blog contained a disclaimer that he was speaking personally. • Careful about perception of “official” speech Social Media: Public Employee Use

Campaign “like” = political speech • Deputies reinstated after sheriff fired them for “liking” his opponent’s Facebook campaign page. • A “like” can be speech, and political speech is protected. Social Media: Public Employee Use

Employee discipline Employers can discipline employees for: – – Excessive use of social media at work Individual gripes about job or boss, even on personal sites Illegal (or improper) personal social media activities Violating employer’s social media policy Employers should be careful not to discipline for: – Protected concerted activities among co-workers – Matters of public concern – Political or other protected speech Social Media: Public Employee Use

Importance of a social media policy • Notify public on types of content that will not be tolerated on government social media sites • Inform employees of social media activities (both on the job and outside of work) that could subject the employee to discipline • Notify employees of monitoring – Signed acknowledgment Social Media Policy

Purpose of a Social Media Policy • Social media policies are important to: – Govern the administration, monitoring, and retention of site content – Set ground rules for public input and comments – Establish policies for employee use of social media TAKE HOME TIP: Draft your purpose statement first – all of the substantive policies should further your purpose. Ex: The purpose of the government’s Facebook page is to disseminate information to residents and others about government activities and events. Social Media Policy

Approval and administration • An administrator should be appointed to oversee and supervise government social media sites. • The administrator should be trained on the policy and his or her responsibilities. TAKE HOME TIP: The intern should not be in charge of your social media sites. Social Media Policy

TOS for Commenters/Posters The policy should identify the type of content that is not allowed and will be subject to removal. TAKE HOME TIP: Make sure your comment policy/TOS (or a link to that policy) is posted on your social media sites. BONUS TAKE HOME TIP: Be specific. Social Media Policy

Disclaimers “If you post links to other sites, or allow others to comment or post links in comments, include disclaimer language on your site and/or in your social media policy to clarify that the views and opinions expressed on these outside sites and by outside persons are not necessarily the views and positions of the agency. ” Social Media Policy

Employee usage policy • Establish clear guidelines and boundaries for employee social media activities. – Conduct on the employer’s official social media sites. – Conduct “on the job” or on employer equipment. – Conduct outside of work that may impact employer. • Communicate whether social media use at work will be banned or minimal use allowed. TAKE HOME TIP: Zero tolerance policies are difficult to enforce. Be careful of unequal enforcement. Social Media Policy

Employee training is important, particularly because technology changes so quickly. TAKE HOME TIP: Have employees sign an acknowledgment that they (1) read the policy and (2) received training. Social Media Policy

What about elected officials? • • Personal use Professional use Speaking officially or personally? Covered under employee social media policy? Social Media Policy

Is Tattooing Speech? - No: Hold Fast Tattoo, LLC v. City of North Chicago - Yes: Anderson v. City of Hermosa Beach, 621 F. 3 d 1051 (9 th Cir. 2010) - Yes: Coleman v City of Mesa, 230 Ariz. 352 (2012) - Yes: Jucha v. City of N. Chicago, 63 F. Supp. 3 d 820 (N. D. Ill. 2014) - Yes: Buehrle v. City of Key West, 813 F. 3 d 973 (11 th Cir. 2015) Tattoo Parlors

Content-Based Restrictions Total Ban Content-Neutral: Anderson v. City of Hermosa Beach, 621 F. 3 d 1051 (9 th Cir. 2010) Tattoo Parlors

Time, Place, Manner Restrictions Total Ban Not Reasonable: Anderson v. City of Hermosa Beach, 621 F. 3 d 1051 9 th Cir. 2010 Stated Claim Conditional Use Requirement Not Reasonable: Coleman v. City of Mesa, 230 Ariz. 352 (2012) Stated Claim Special Use Permit Denial Arbitrary: Jucha v. City of N. Chicago, 63 F. Supp. 3 d 820 (N. D. Ill. 2014) Ban Not Narrowly Tailored to Significant Government Interest: Buehrle v. City of Key West, 813 F. 3 d 973 (11 th Cir. 2015) Tattoo Parlors

Total Bans Difficult to Defend Unlisted Uses Might be Considered a Ban Narrowly Tailor Regulations to Significant Government Interest Stick to Standards for Special Uses Be Content-Neutral Tattoo Parlors

Questions © 2018 Ancel Glink All Rights Reserved

Resources Rocky Mountain Sign Law (www. rockymountainsignlaw. com) 83

Resources • RLUIPA Defense Blog (www. rluipadefense. com) 84

Resources • Municipal Minute (municipalminute. ancelglink. com) 85

Additional Resources • Daniel Mandelker, John Baker and Richard Crawford, Street Graphics and the Law, revised edition (American Planning Association, forthcoming 2015) • Local Government, Land Use and the First Amendment, Brian Connolly, ed. (ABA, forthcoming 2017) • Brian J. Connolly & Alan C. Weinstein, Sign Regulation after Reed: Suggestions for Coping with Legal Uncertainty, 47 Urb. Law. 569 (2015) 86