Professional Documents
Culture Documents
V. NO. 18-2624
Background
Orleans.
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segment; the mural replaces with pictograms two vulgar words used
by Trump.
Just a few days after the mural was painted, a local news
outlet publicized a story about the mural and noted that murals
Commission and the City Council.” The same day the news story was
of Safety and Permits sent Morris a letter advising him that the
director of the City’s “One Stop for Permits and Licenses,” wrote
Morris was instructed to remove the mural, and warned that his
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Ms. Cecil said Morris should contact her once the mural had been
Historic District” in the CZO; nor does the CZO contain a blanket
States Constitution.
U.S.C. § 1988.
In May of 2018, about two months after Morris filed suit, the
New Orleans City Council enacted M.C.S., Ordinance No. 27783, which
enforcement pledge, this Court, in its May 31, 2018 Order and
injunctive relief.
October 18, 2018, the Court denied the City’s motion as to all
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the City moved to the stay these proceedings on December 12, 2018.
The next day, the Court held a status conference and denied the
The City Council adopted the amendment on April 25, 2019, and the
Mayor signed the measure into law on April 30, 2019. Most
recently, on June 13, 2019, the City amended its mural regulations
for a third time, reducing the permit fee from $500 to $50. As
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permit scheme is ripe for this Court’s review, the plaintiff now
I.
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fact to find for the non-moving party. See Matsushita Elec. Indus.
Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). A genuine
more than simply deny the allegations raised by the moving party.
See Donaghey v. Ocean Drilling & Exploration Co., 974 F.2d 646,
649 (5th Cir. 1992). Rather, he must come forward with competent
John W. Stone Oil Distrib., Inc., 819 F.2d 547, 549 (5th Cir.
Hathaway v. Bazany, 507 F.3d 312, 319 (5th Cir. 2007) (internal
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judgment evidence.”).
713 F.3d 824, 830 (5th Cir. 2013) (internal quotation marks and
citation omitted).
II.
A.
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B.
XIV. Murals are artwork, which has long been held to be expression
Lesbian and Bisexual Group of Boston, 515 U.S. 557, 569, 574
Amendment”); ETW Corp. v. Jireh Pub., Inc., 332 F.3d 915, 924 (6th
v. City of New York, 97 F.3d 689, 695 (2d Cir. 1995)(“Visual art
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U.S. 43, 48 (1994). The Supreme Court has recognized that signs
uses for land, and pose other problems that legitimately call for
case law has led to a war . . . a real fight around the country.”)
C.
i.
Id. at 2227 (quoting Ward v. Rock Against Racism, 491 U.S. 781,
scrutiny. Central Hudson Gas & Elec. Corp. v. Public Serv. Comm’n
and (3) the regulation “is not more extensive than is necessary to
ii.
test; the City maintains that: (1) it has the right to treat
In Reed, the Supreme Court held that a town sign code was
the church filed suit. Id. at 2255-26. Finding that the sign
“mural” and “sign” makes clear that the City of New Orleans, like
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The City counters that its regulatory scheme does not trigger
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iii.
speech.
8 Reed itself counters the City’s argument. See Reed, 135 S. Ct.
at 2229 (“Innocent motives do not eliminate the danger of
censorship presented by a facially content-based statute, as
future government officials may one day wield such statutes to
suppress disfavored speech.”).
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content based:
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Gas & Elec. Corp. v. Public Serv. Comm’n of N.Y., 447 U.S. 557,
Sch. v. Healey, 159 F. Supp. 3d 173, 193 (D. Mass. 2016) (“The
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which most certainly did not happen in Reed, lower courts must
do so, he must pay a $50 fee and submit proof of the owner’s
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proposed work and the proposed text of the sign. Unlike murals,
and (3) the regulation “is not more extensive than is necessary to
it recites are real and that its restriction will in fact alleviate
intoning this civic interest, the City fails to indicate how the
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regulation. 9
III.
Morris also seeks summary relief in his favor that the murals-
CZO § 26.6, is void for vagueness. The City responds that the
Williams, 553 U.S. 285, 304 (2008). The Supreme Court has
Q: Okay.
A: Those murals have not been the subject of complaints
or inquiries.
U.S. 104, 108 (1972)); see also Johnson v. United States, 135 S.
Ct. 2551, 2557-58 (2015); Kolender v. Lawson, 461 U.S. 352, 357
(1983); Munn v. City of Ocean Springs, Miss., 763 F.3d 437, 439
(5th Cir. 2014) (“The Due Process Clause requires that a law
prohibited.”). 10
surface.” Morris first submits that, because the CZO does not
10 The Supreme Court has also suggested that a law violates due
process where its standards are “too vague to support the denial
of an application for a license.” See City of Mesquite, 455 U.S.
at 293 (“We may assume that the definition of ‘connections with
criminal elements’ in the city’s ordinance is so vague that a
defendant could not be convicted of the offense of having such a
connection; we may even assume, without deciding, that such a
standard is also too vague to support the denial of an application
for a license to operate an amusement center.”).
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Director of the New Orleans One Stop for Permits and Licenses,
Morris notes that Ms. Cecil herself could not even define the term:
testimony:
IV.
386 (E.D. La. 1999)). Thus, “[a] plaintiff must demonstrate ‘(1)
cause the opposing party; and (4) the injunction will not disserve
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Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir. 2009) (internal
732 F.3d 535, 539 (5th Cir. 2013) (internal citations omitted).
21.6.V.
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______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE
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