Posted by: Patricia Salkin | October 21, 2018

Fed. Dist Court in LA Denies Motion to Dismiss in Prior Restraint of Speech Claim Over Mural Quoting President Trump

This post was authored by Matthew Loeser, Esq.

Morris owns residential and commercial properties in Orleans Parish. On November 4, 2017, Morris commissioned a local artist to paint a mural on a commercial property he owned. The mural quoted a comment made by President Donald Trump, recorded in a 2005 “Access Hollywood” segment; the mural replaced, with pictograms, two vulgar words used by Trump. After a local news outlet publicized a story about the mural, Jennifer Cecil, the purported director of the City’s “One Stop for Permits and Licenses,” wrote that an inspection of the property on November 8, 2017 revealed a violation of Section 12.2.4(8) of the Comprehensive Zoning Ordinance, which concerned “Prohibited Signs —Historic District.” Fearing prosecution, Morris sued the City, alleging that the murals-permit scheme violated his First and Fourteenth Amendment rights. Morris filed an opposition to the resulting motion to dismiss on June 19, 2018, and the City was granted leave to file a reply on June 27, 2018. On August 2, 2018, the City was granted leave to file a supplemental memorandum in support of its motion to dismiss, and Morris moved to strike the City’s supplemental memorandum under Federal Rule of Civil Procedure 12(f)(2).

As a threshold matter, the court reviewed Morris’ motion to strike the City’s supplemental memorandum in support of its motion to dismiss. The court found this challenged pleading contained extraneous allegations regarding Morris’ purported violation of his “agreement” with the City. As the court could only rely on factual allegations contained within the plaintiff’s complaint when deciding a Rule 12(b)(6) motion to dismiss, the plaintiff’s motion to strike the City’s supplemental memorandum was granted.

In its motion to dismiss, the City contended that the plaintiff lacked standing because he failed to establish that he suffered an injury-in-fact. The City submitted that the plaintiff had not paid any “fees,” did not even apply for a permit, and would not have to take down his murals or pay a fine for failing to do so, in light of the City’s pledge to stay enforcement against his murals during the pendency of this lawsuit. The court found that the City’s pledge to stay enforcement of the permit scheme against the plaintiff’s murals during the pendency of this lawsuit only rendered moot his request for preliminary injunctive relief. Since Morris sought to redress the threatened enforcement of an allegedly unconstitutional law, he was found to have standing.

Next, because applicants were required to submit a general drawing of their proposal mural for “development plan and design review approval,” it could not reasonably be said that City officials did not consider content when determining whether to approve or deny a permit. As such, the court found that the plaintiff has plausibly alleged that the murals permit application process constituted a content-based regulation of speech, which implicated strict scrutiny. Morris further argued that the regulation was not narrowly tailored because it was over inclusive, as it applied throughout the City and was not limited to historically designated homes or neighborhoods. Finally, the plaintiff argued that the City could protect its interests through less restrictive means, such as by citing property owners with zoning violations after they occurred, rather than engaging in advanced review coupled with extensive paperwork and submission requirements. Accordingly, the court held that the plaintiff pleaded a claim that § 21.6.V was an unconstitutional content-based regulation of speech.

Finally, while the plaintiff had pled that he was perhaps treated differently from  two non-permit holders, but failed to plead that such differential treatment was “intentional.” Specifically, the plaintiff failed to allege that the City’s decision to cite him for not having obtained a murals permit, as required by the CZO, was “irrational and wholly arbitrary.” Since the “intent” requirement is crucial to successfully pleading this claim, the court held plaintiff had not stated a “class of one” Equal Protection claim under the Fourteenth Amendment.

Morris v City of New Orleans, 2018 WL 5084890 (ED LA 10/18/2018)

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