First Amendment Tag

Unfair or Unconstitutional? The Supreme Court to Decide

Posted 23 Dec 2015 in Case Notes, IMLA Briefs

You can’t make this stuff up. Really. But that doesn’t mean it is unconstitutional. In Heffernan v. City of Paterson, New Jersey the State and Local Legal Center (SLLC) Supreme Court amicus brief argues that a government employer’s perception that an employee has exercised his or her First Amendment rights cannot be the basis for a First Amendment retaliation lawsuit. Officer Heffernan was assigned to a detail in the Office of Chief of Police. He was reassigned after he was seen picking up a campaign sign for the current police chief’s opponent. The First Amendment protects non-policymaking public employees who support a candidate in an election. Officer Heffernan maintains that he was in no way involved with the police chief race. The sign wasn’t for himself; it was for his bedridden mother. Officer Heffernan’s claims he was retaliated against based on the City’s perception he was exercising his First Amendment free association rights. He points to lower court precedent holding that public employees may bring First Amendment retaliation claims if an adverse employment action is taken because they remain politically neutral or silent.

Bye, Bye Abood?

Posted 21 Aug 2015 in Case Notes, Commentary

Stare decisis may be tossed out the window next Supreme Court term in what promises to be one of the most closely followed cases. The stakes for unionized public employees couldn’t be higher. In Friedrichs v. California Teachers Association the Supreme Court has agreed to decide whether to overrule a nearly 40-year old precedent requiring public sector employees who don’t join the union to pay their “fair share” of collective bargaining costs. More than 20 States have enacted statutes authorizing fair share.

Supreme Court Decides Significant Government Speech Case

Posted 19 Jun 2015 in Case Notes, Commentary

In Walker v. Sons of Confederate Veterans the Supreme Court held 5-4 that Texas may deny a proposed specialty license plate design featuring the Confederate flag because specialty license plate designs are government speech. Walker is of particular significance to state and local government because the Court did not narrow the 2009 landmark government speech case Pleasant Grove City, Utah v. Summum.

Supreme Court’s Sign Case May Require Altering Sign Codes Nationwide

Posted 18 Jun 2015 in Case Notes, Commentary, IMLA Briefs

In Reed v. Town of Gilbert the Supreme Court held unanimously that Gilbert’s Sign Code, which treats various categories of signs differently based on the information they convey, violates the First Amendment. The State and Local Legal Center (SLLC) filed an amicus brief in this case arguing that Reed’s argument, if adopted by the Court, will render sign codes unconstitutional nationwide. Gilbert’s Sign Code treats temporary directional signs less favorably (in terms of size, location, duration, etc.) than political signs and ideological signs. Content-based laws are only constitutional if they pass strict scrutiny—that is, if they are narrowly tailored to serve a compelling government interest. While the SLLC argued in its amicus brief that the sign categories in this case are based on function, the Court concluded they are based on content. The various categories draw distinctions based on the message a speaker conveys. So under Gilbert’s sign code: “[i]f a sign informs its reader of the time and place a book club will discuss John Locke’s Two Treatises of Government, that sign will be treated differently from a sign expressing the view that one should vote for one of Locke’s followers in an upcoming election, and both signs will be treated differently from a sign expressing an ideological view rooted in Locke’s theory of government.”

This Case Isn’t (Only) About a Confederate Flag License Plate

Posted 15 Dec 2014 in Case Notes

In Walker v. Texas Division, Sons of Confederate Veterans the Texas Department of Motor Vehicles Board (Board) rejected the Texas Division of the Sons of Confederate Veterans’ (Texas SCV) application for a specialty license plate featuring images of the Confederate Flag. The Supreme Court will decide whether this violates the First Amendment.

This case may have implications beyond the specialty license plate context. Lower courts have struggled to determine whether government websites, advertisements on city buses, memorial bricks and tiles at public schools, etc. are government speech or private speech. Texas allows nonprofits to propose license plate designs for state approval. Texas SCV applied for a specialty plate featuring its logo, a Confederate flag framed on all four sides with the words “Sons of Confederate Veterans 1896,” and a faint Confederate flag in the background. The Board voted unanimously against the plate because it received numerous public comments objecting to it. The Fifth Circuit ruled in favor of Texas SCV.

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted 14 Dec 2014 in Monday Morning Review

Catching up on recent published decisions involving local governments:

First Circuit

S. Kingstown Sch. Cmte v. Joanna S., No. 14-1177 (Dec. 9, 2014): The court ruled in Individuals with Disabilities in Education Act ("IDEA") case that settlement agreement relieved school committee of obligation to perform or fund evaluations, and remanded to determine whether Joanna S. is entitled to attorney's fees.

Second Circuit

Hardison v. Bd. of Ed. of the Oneonta City Sch. Dist., No. 13-1594 (Dec. 3, 2014): The court ruled, in IDEA case, that district court should have shown greater deference to state review officer's determination to deny reimbursement.

Fourth Circuit

E.L. v. Chapel Hill-Carrboro Bd. of Ed., No. 13-2330 (Dec. 3, 2014): The court found that student did not exhaust her administrative remedies and that school board did not violate the IDEA; student received therapy mandated by her IEP.
AGI Assoc., LLC v. City of Hickory, No. 13-2097 (Dec. 11, 2014): The court found that under North Carolina law, governmental immunity from equitable claims is waived when a county or municipality acts in a proprietary, not governmental, capacity.

Fifth Circuit

Must All Signs Be the Same?

Posted 25 Nov 2014 in Case Notes, Commentary, IMLA Briefs

The Supreme Court’s decision in Reed v. Town of Gilbert, Arizona could upset sign codes nationally.

Most sign codes, like Gilbert’s, include different categories of temporary signs. It makes sense, for example, to give people more time to remove thousands of election signs and less time to remove a few yard sale signs. In this case the Court will decide whether local governments may regulate temporary directional signs differently than other temporary signs. The Court could rule, practically speaking, that all temporary signs must have the same time, place, and manner requirements. IMLA joined the State and Local Legal Center’s (SLLC) amicus brief asking the Court not to go that far. Gilbert’s Sign Code includes temporary directional signs, political signs, and ideological signs. After being notified that its temporary directional signs announcing the time and location of church services were displayed longer than allowed, the Good News church sued Gilbert. The church claimed Gilbert’s Sign Code violates the First Amendment because temporary directional signs receive the less favorable treatment (in terms of size, location, duration, etc.) than political signs and ideological signs.

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted 24 Nov 2014 in Monday Morning Review

Here are last week's published decisions involving local governments:

First Circuit

Watchtower Bible and Tract Soc. of New York v. Mun. of San Juan, No. 13-1605 (Nov. 20, 2014): The court upheld injunction against municipalities that had issued permits for gated communties in Puerto Rico that did not provide access to public streets for First-Amendment activities.

Third Circuit

Dougherty v. Sch. Dist. of Philadelphia, No. 13-3868 (Nov. 21, 2014): The court affirmed denial of motion for summary judgment on qualified immunity grounds in case presenting First-Amendment retaliation claim.

Sixth Circuit

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted 10 Nov 2014 in Monday Morning Review

Here are the last two weeks' published decisions involving local governments:

Second Circuit

Golodner v. Berliner, No. 12-1173 (Oct. 27, 2014): In 1983 action alleging that City and City officials retaliated against Golodner for exercising his First-Amendment rights, the court affirmed that defendants were not entitled to summary judgment on the basis of qualified immunity.
Berman v. City of New York, No. 13-598 (Oct. 29, 2014): The court certified two questions to the New York Court of Appeals in suit challenging City law that regulates debt-collection agencies.
Harris v. O'Hare, No. 12-4350 (Oct. 30, 2014): In suit claiming that officers violated the Fourth Amendment when they entered yard and shot and killed family dog, the court found that there was insufficient evidence of exigent circumstances to permit warrantless search.
Floyd v. City of New York, No. 13-3088 (Oct. 31, 2014): The court ruled that public-sector unions may not intervene into litigation concerning City's "stop-and-frisk" policy where the parties to the ligitation have agreed to settlement.

Sixth Circuit

Monday Morning Review: Local Governments in the Federal Appellate Courts

Posted 13 Oct 2014 in Monday Morning Review

Here are last week's published decisions involving local governments:

First Circuit

Showtime Entn't v. Town of Mendon, No. 12-2121 (Oct. 8, 2014): The Town's adult-business-entertainment bylaws unconstitutionally infringe on Showtime's right to engage in a protected expressive activity; the regulations' underinclusiveness indicates that Town does not have substantial interest in regulating adult businesses to curb secondary effects.

Seventh Circuit

Matz v. Klotka, No. 12-1674 (Oct. 6, 2014): In 1983 action alleging Fourth-Amendment violation arising out of arrest, the court affirmed the grant of summary judgment for officers on qualified-immunity grounds.

Ninth Circuit

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