Back to the Sep-Oct 2022 issue

US Supreme Court Holds That City Violated First Amendment

CONSTITUTIONAL LAW
First Amendment

The City of Boston, Mass., owns and manages three flagpoles in front of city hall. Ordinarily, the city raises the United States flag and the POW/MIA flag on one flagpole, the Commonwealth of Massachusetts flag on the second flagpole, and its own flag on the third flagpole. Upon request from third parties, the city will occasionally fly another flag for a limited time instead of its own flag.

the Supreme Court concluded that the First Amendment prohibits the city from engaging in viewpoint discrimination, by refusing permission to fly a particular flag because of the views that it expresses.The commissioner of the city’s property management department reviews applications for flag-raising events to ensure the flag is consistent with the city’s message, policies, and practices. The city had approved 284 flag-raising events over a 12-year period, and it had never denied an application.

Harold Shurtleff, on behalf of Camp Constitution, an organization seeking “to enhance the understanding of the country’s Judeo-Christian moral heritage,” applied to fly a Christian flag. The commissioner denied the request, explaining that “the city’s policy was to refrain respectfully from flying non-secular, third-party flags in accordance with the First Amendment’s prohibition of government establishment of religion.”

Camp Constitution sued, claiming the city’s decision violated the free speech clause of the First Amendment to the U.S. Constitution. The federal district court ruled in the city’s favor. The U.S. Court of Appeals for the First Circuit affirmed the district court’s decision, concluding that the city was engaging in government speech when it flew third-party flags.

The U.S. Supreme Court reversed the court of appeals’ decision and held that the city had violated the First Amendment. The Supreme Court reasoned that the flag-flying was not government speech because the city program had allowed other private groups to raise and fly their own flags. Therefore, the Supreme Court concluded that the First Amendment prohibits the city from engaging in view-point discrimination, by refusing permission to fly a particular flag because of the views that it expresses.

The Supreme Court noted that, to determine if a message is government speech where a government has invited people to participate in a program, courts should make a “holistic inquiry,” which looks to “the history of the expression at issue; the public’s likely perception as to who (the government or private person) is speaking; and the extent to which the government has actively shaped or controlled the expression.” The Supreme Court also explained that if a local government wishes to speak for itself when it creates a program, they can “easily” do so, pointing to the City of San Jose, Calif., as an example, which provides in writing that its “flagpoles are not intended to serve as a forum for free expression by the public,” and lists approved flags that may be flown “as an expression of the city’s official sentiments.”

Shurtleff v. City of Boston, 142 S. Ct. 1583 (2022).

CONSTITUTIONAL LAW
Sign code

The sign code for the City of Austin, Tex., defined an off-premises sign as “a sign advertising a business, person, activity, goods, products, or services not located on the site where the sign is installed, or that directs persons to any location not on that site.”

signageIn 1983, the city began prohibiting new off-premises signs, but existing off-premises signs were allowed to remain. Subsequently, the city permitted on-premises signs to be digitized. Because digitization did not exist in 1983, the result was that on-premises signs could be digitized, but off-premises signs could not.

Outdoor advertising companies sued the city, claiming the distinctions between on-premises and off-premises signs violate the First Amendment of the U.S. Constitution. The federal district court upheld the challenged provisions. The U.S. Court of Appeals for the Fifth Circuit reversed the district court’s decision, concluding that the distinctions are content-based, and are therefore subject to strict scrutiny under the earlier U.S. Supreme Court decision of Reed v. Town of Gilbert. The court of appeals also concluded that the ordinance provisions could not survive strict scrutiny.

The U.S. Supreme Court reversed the court of appeals’ decision, sent the case back to the lower court for additional proceedings, and ruled that distinctions are content-neutral under Reed v. Town of Gilbert, and, as a result, are subject to intermediate scrutiny. The Supreme Court explained that the distinctions are “location-based and content-agnostic” and are “therefore similar to ordinary time, place, or manner restrictions,” which are permissible under the First Amendment.

Austin v. Reagan Nat. Advertising of Austin, 141 S. Ct. 2849 (2022).

CONSTITUTIONAL LAW
Malicious prosecution

The U.S. Supreme Court reversed the court of appeals’ decision and ruled that to demonstrate the favorable termination of a criminal prosecution, plaintiffs need only show that their prosecutions ended without a conviction, and that there is no additional need to show ‘indications of innocence.Brooklyn, N.Y., police officers arrived at Larry Thompson’s home one night and demanded entry, based on a 911 report claiming that Thompson was sexually abusing his baby. Thompson insisted that the officers needed a warrant before entering, but they entered without one and arrested him.

An officer falsely claimed that Thompson had violently resisted arrest, leading Thompson to be jailed and charged with two crimes. The charges against him were dismissed before trial without any explanation by the prosecutor or judge.

Thompson sued under 42 U.S.C. § 1983, claiming that he was maliciously prosecuted in violation of his Fourth Amendment rights under the U.S. Constitution. To maintain such a claim, a plaintiff must demonstrate, among other things, that he obtained a favorable termination of the underlying criminal prosecution.

The federal district court and the U.S. Court of Appeals for the Second Circuit ruled that Thompson could not bring this claim. Under Second Circuit case law, this type of lawsuit is permitted only if the prosecution ends in a way that somehow demonstrates the accused person’s innocence. The court of appeals reasoned that in Thompson’s case, because the state simply dropped the charges, there was no affirmative indication of his innocence.

The U.S. Supreme Court reversed the court of appeals’ decision and ruled that to demonstrate the favorable termination of a criminal prosecution, plaintiffs need only show that their prosecutions ended without a conviction, and that there is no additional need to show “indications of innocence.”

Thompson v. Clark, 142 S. Ct. 1332 (2022).

CONSTITUTIONAL LAW
Trash disposal

Goodhue County adopted an ordinance that requires garbage haulers to deposit any garbage collected in the county at a plant owned by the City of Red Wing. The city plant converts garbage into refuse-derived fuel that is then sold to Northern States Power Company (Xcel) for use in its power plants.

A garbage canSeveral out-of-state garbage haulers and processors sued, claiming the ordinance violates the Commerce Clause of the U.S. Constitution in two ways. First, they argued that requiring all garbage to go to the city plant discriminates against outof- state competitors. Second, they claimed that the county violated the Commerce Clause by exclusively selling a byproduct of the garbage to a private, in-state company.

The district court granted summary judgment (court-ordered judgment without a trial) to the county and city defendants. The U.S. Court of Appeals for the Eighth Circuit affirmed, reasoning that because the outof- state garbage haulers and processors do not have the ability to turn refuse-derived fuel into electricity, they aren’t similarly situated to Xcel and therefore can’t raise a claim under the Commerce Clause. The court of appeals also noted that when laws favor the government regarding the disposal of trash, those laws do not discriminate against interstate commerce for purposes of the Commerce Clause if they treat every private business, whether in-state or out-of-state, the same.

Paul’s Industrial Garage, Inc. v. Goodhue County, 35 F.4th 1097 (8th Cir. 2022).

LAND USE
60-day rule

Two farmers, Steven and Orry Trisco, applied for a conditional use permit (CUP) to expand their livestock operation. When the County of Douglas Planning Commission was prepared to consider their application, the farmers requested that the commission postpone its consideration until its next meeting. Before the next meeting, they again requested that the commission postpone its consideration of their application.

After the county subsequently denied the CUP application, the farmers petitioned the district court for an order to compel the county to grant their application, claiming that it had been automatically approved under the 60-day rule (Minn. Stat. § 15.99) because the county did not deny their application within the statutory deadline.

The district court denied the requested petition. The Minnesota Court of Appeals affirmed the district court’s decision, ruling that, because the county delayed its consideration of the application at the request of the Triscos, they are equitably estopped (prohibited by legal principles of fairness) from having their application automatically approved under the 60-day rule.

Trisco v. County of Douglas, No A21-0248, 2022 WL 9336 (Minn. Ct. App. Jan. 10, 2022) (nonprecedential opinion).

Written by Susan Naughton, research attorney with the League of Minnesota Cities. Contact: snaughto@lmc.org or (651) 281-1232.