Breyer Decision – Major Victory for Plaintiffs, Michael Shaw and Citizens for Free Speech!
In a major victory for Michael Shaw and Citizens for Free Speech, Judge Charles Breyer of the U.S. District Court (Northern District of California) granted an injunction against Alameda County and then issued a final ruling protecting the six billboards erected in 2014 along I-580 between Hayward and Pleasanton. The Court ruled that the County’s zoning ordinance is facially unconstitutional and that their provisions cannot be used to regulate the speech of anyone in the unincorporated areas of the County. The Breyer ruling is the one that counts.
Rulings from the Breyer Court:
- Judgment – filed 3/8/2017
- Order Granting Motion for Damages and Attorneys’ Fees – filed 3/8/2017
- Final Ruling/Court Order on Motions for Summary Judgment – filed 7/8/2016
- Court Order on Preliminary Injunction – filed 9/04/2014
- Court Order Granting Motion for Preliminary Injunction – filed 8/05/2014
- Citizens for Free Speech Stipulation and Order Granting Temporary Restraining Order (TRO) – filed 6/16/2014
When the billboards originally went up on June 3, 2014, a Temporary Restraining Order (TRO) was awarded by the District Court which precluded the County from taking any adverse action. The Court granted the preliminary injunction stating, “The Zoning Ordinance Gives Officials Too Much Discretion in Approving or Disapproving Signs Based on Their Content.”
The County’s tyranny of over-regulation was significantly lessened as a result of this ground breaking ruling.
Brown Armstrong Decision – SHOCKER! – Alameda County Defies Federal Court Ruling!
In 2017 the Federal Court issued a final ruling in favor of Citizens for Free Speech. Rather than abide by the Court’s final ruling and law, Alameda County is blatantly defying the court order and has sought to remove the signs, even though it had not brought a counterclaim against Citizens in the 2014 action. Citizens therefore brought a new action in Federal Court contending that the County is barred from seeking to now remove the signs on the grounds of res judicata. In the new action, Judge Brown Armstrong determined that res judicata did not apply. The Brown Armstrong ruling is being appealed to the Ninth Circuit and an amended complaint has also been filed.
Alameda County Board of Supervisors Hearing on I-580 Billboards
Michael Shaw speaks at an Alameda County Board of Supervisors Hearing regarding the County’s attempt to remove the billboards erected on I-580, despite Judge Breyer’s ruling in 2017 allowing the billboards to remain. Oakland, California, February 5, 2019
East Bay Citizen article – February 6, 2019
A nearly five-year legal fight between Alameda County and a property owner he believes anti-government signage he placed along Interstate 580 constitutes free speech took a strange turn Tuesday afternoon. Before the Board of Supervisors voted to deny an appeal of an east county zoning decision ordering removal of the anti-government billboards, Alameda County Supervisor Scott Haggerty accused the appellant, Michael Shaw, of issuing a threat against him.
Read full article here.
East Bay Citizen article – June 13, 2019
You won’t have Scott Haggerty to kick around anymore; longtime county supe will not seek re-election
One of the most sought after seats in Alameda County politics is now up-for-grabs. Alameda County Supervisor Scott Haggerty announced Thursday that he will not seek re-election to his Board of Supervisors District 1 seat. Haggerty has served portions of the Tri-Valley and Fremont since 1996.
Read full article here.
Read the Court Documents here:
U.S. District Court for the Northern District of California:
- Citizens for Free Speech Complaint – filed 2/7/2018
- Citizens for Free Speech Motion for Preliminary Injunction – filed 3/7/2018
Plaintiff Citizens for Free Speech filed a preliminary injunction to bar the County from prohibiting the Plaintiff from displaying signs on the property. Plaintiff stated that further litigation on the application of County’s sign ordinance is barred by res judicata. Plaintiff also asserted that County cannot proceed with abatement proceedings because it failed to file a counterclaim after the Breyer ruling.
- County of Alameda Opposition to Motion for Preliminary Injunction – filed 3/21/2018
- County of Alameda Request for Judicial Notice – filed 3/21/2018
- Declaration of County of Alameda’s Attorney – filed 3/21/2018
- Citizens for Free Speech Reply Brief in Support of Motion for Preliminary Injunction – filed 3/28/2018
- Court Order Vacating 4/11/2018 Hearing – 4/5/2018
- Court Order Denying Motion for Preliminary Injunction – filed 5/9/2018
Judge Brown Armstrong ruled against the Plaintiffs, citing that the Breyer ruling failed to invalidate the disputed ordinances; the County is not barred from taking further action by failure to file a counterclaim; and Plaintiff did not suffer irreparable harm.
- County of Alameda Motion to Dismiss – filed 5/24/2018
- Citizens for Free Speech First Amended Complaint – filed 6/7/2018
- County of Alameda Reply Brief – filed 6/11/2018
- County of Alameda Motion to Dismiss First Amended Complaint – filed 6/21/2018
- Citizens for Free Speech Response to Request for Fees – filed 6/26/2018
- Citizens for Free Speech Opposition to Defendants’ Motion to Dismiss – 7/9/2018
- Order Granting Defendants’ Motion to Dismiss – filed 9/4/2018
Judge Brown Armstrong granted the County’s Motion to Dismiss based on the elements for Younger absention, which requires a federal court abstain from considering claims that may interfere with ongoing state proceedings. She also ruled that all Plaintiff claims are barred by res judicata and lack substantive merit.
- Judgment – filed 9/4/2018
- Abatement Order from Alameda County Community Development Agency – issued 11/8/2018
Relevant Legal News regarding Free Speech
I. Commercial Speech Now Subject to Strict Scrutiny Review: NIFLA v. Becerra and Billboards
by Michael Shaw
An article was published in Forbes magazine on July 5, 2018 that examined the late June 2018 U.S. Supreme Court ruling in NIFLA v. Becerra [585 U.S. _ (2018)]. The decision gives an incredible bounce to the recognition of the rights of billboard operators. The Forbes article by Cory Andrews, an attorney with the Washington Legal Foundation, is entitled “The Dog That Didn’t Bark in the Night: SCOTUS’s NIFLA v. Becerra and the Future of Commercial Speech.” Perhaps some real clarity has been inserted into this area of free speech law.
Under the strict scrutiny standard nearly all speech is protected from government interference. NIFLA, a pro-life organization was compelled to speak about abortion availability, the very action the organization opposed and for which it offered alternatives. Under the standard of strict scrutiny, the government is rarely able to foreclose or compel speech.
NIFLA, with pregnancy centers throughout the state, was required under California law to post at each counseling center the nearest government supported free abortion clinic. This posting was required to be in obvious view of every patient. The Supreme Court knocked down the law. The Court held that if content of speech is reviewed by government, the reviewer is subject to the high legal standard of ‘strict scrutiny’ in order to satisfy the first amendment requirement that individual speech be protected. Accordingly, the California law was struck down.
For decades, the Court has held a much lower standard of review, “intermediate scrutiny” which government agencies used to bar commercial speech from certain forums like billboards. Andrews sees Thomas’s majority (5-4) opinion as the “dog that didn’t bark.” His assessment is that this case sets a comprehensive order requiring strict scrutiny in essentially any government control over speech. Why Andrews describes the case as the dog that didn’t bark is because the Court did not directly overturn the intermediate scrutiny theory. (See below on a very recent ninth circuit case that reinforces the idea that content of speech regulation is subject to strict scrutiny standards.)
An Amicus Brief filed by the National League of Cities in the NIFLA case stated the following: “Changing course now would upend not only existing Supreme Court precedent but the holdings of numerous lower courts around the country. It would also require local governments around the country to rewrite many of their ordinances that have relied on decades-old Supreme Court precedent.”
Clearly recent Supreme Court rulings, including NIFLA will be beneficial in the determination of Citizens’ speech rights being exercised at I-580 in Castro Valley and in San Jose on Highway 101 and I-880. While the country continues down a path that is limiting citizen rights, free speech law is rising.
II. Ninth Circuit Court of Appeals Court applies Strict Scrutiny Standard to content based speech (August 2018)
In Askins v. USDHS [No. 16-55719 (9th Cir. 2018)] two individuals had border entrance photos confiscated by border police. The appellate court found that the “government had the burden of demonstrating that its restrictions on speech were the least restrictive means necessary to serve a compelling government interest.” In the view of the Court, the Trial Court did not make a satisfactory analysis of this core requirement protecting free speech. So, in protection of the Plaintiff’s right to speak, through photos, the Court determined that the Plaintiff’s rights were violated when the lower court dismissed the case without a hearing or a finding which would support the government’s observance of a strict scrutiny standard when applying its regulations regarding pictures. “When the government restricts speech, the Government bears the burden of proving the constitutionality of its actions.” The Court proceeds to say: “It is rare that a regulation restricting speech because of its content will ever be permissible.”
Pictures of I-580 Billboards
Click on any image below to see the full-size.
Michael Shaw on the I-580 Billboards:
Alameda County: I-580 Political Signs Spark Free Speech Fight
In October 2014, Michael Shaw was interviewed by Matt O’Brien, a reporter with the Bay Area News Group, regarding the billboards along I-580 in Alameda County, CA. The article was published in print form in the Oakland Tribune and appears in several online news publications including the Contra Costa Times, Inside Bay Area, and the San Jose Mercury News.
CASTRO VALLEY — Property rights activist Michael Shaw says the freeway billboards he erected this summer are a warning against a global government plot to abolish private property and crowd Americans into dense housing.
Alameda County says the unauthorized signs are “an assault on (the) visual senses” of Interstate 580 commuters. It wants them removed.
The two sides are now locked in a legal battle. So far, Shaw is winning.
Read the full article here.
Read the Press Releases here:
- Major Billboard Protest Exposes One Bay Area Plan (June 3, 2014)
- County Of Alameda Succumbs To Billboard Temporary Restraining Order (June 23, 1014)
- Citizens for Free Speech Granted Injunction Against Alameda County as I-580 Billboards are Protected by Federal Court (August 5, 2014)
I-580 Billboards Captured in Drone Flight Video: