Posted by: Patricia Salkin | July 7, 2021

Fed. Dist. Court of TX Holds Plaintiff Lacked Standing to Bring Action Challenging Chapter of City Ordinance that Governed Temporary Signs

This post was authored by Matthew Loescher, Esq.

After Defendant City of Fort Worth cited Plaintiff Brookes Baker for placing eighteen-inch crosses in the public right-of-way in front of an abortion clinic, Baker and Curtis Ryan Roberts brought this action under 42 U.S.C. §1983 against the City, city council members, and seven individual police officers, seeking actual and nominal damages, injunctive relief, and attorneys’ fees; alleging constitutional violations under the First Amendment rights to free speech and to free exercise of religion, under the Fourteenth Amendment Due Process Clause for unconstitutional vagueness, and under Article 1, Section 8 of the Texas Constitution right to free speech.

As an initial matter, the court noted that if a distinction is content based, then it is “presumptively unconstitutional” and subject to strict scrutiny. Here, Section 23-14 targeted all of what the government may deem as non-political signs for a heightened permitting requirement based solely on its communicative content. As such, the court found that the City’s sign ordinance embodied in section 23-14 created a content-based distinction, subject to strict scrutiny.

The City argued that the combination of the city-council-permission scheme and the minimal and tailored exception for political signs “allows the City’s interest in preserving neighborhoods to be achieved without completely banning the ability of individuals or groups to engage in First Amendment activity.” The court rejected this contention, finding that offering limited and discretionary exemptions through the city council to allow some First Amendment activity by some individuals or groups rendered the ordinance underinclusive.

Based on the aforementioned, the court held that the political-content distinction was content based and that the city-council permission scheme created a prior restraint on speech. The ordinance failed under strict scrutiny and therefore violated the First Amendment. Accordingly, the court granted Baker’s alternative Motion for Partial Summary Judgment.

Baker v City of Fort Worth, 506 F. Supp. 3d 413 (ND TX 12/8/2020)

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