Eighth Circuit holds that videographers have First Amendment free speech right to refuse to provide services at same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Religious Freedom, Sexual Orientation

In Telescope Media Group v. Lucero, 936 F.3d 740 (8th Cir. 2019), the Eighth Circuit held that Minnesota could not enforce its public accommodations law against a company that refused to provide video services for same-sex weddings. The process of producing a video, the court said, constitutes “speech” and would be posted on the company’s website. The company sought to produce wedding videos of opposite-sex couples to “affect public attitudes and behavior” by “depict[ing] marriage as a divinely ordained covenant” that exists “between a man and a woman.” To forced them to produce videos for same-sex couples constitutes compelled speech that violates the Constitution’s protection for freedom of speech. The court emphasized the creative work that would go into editing; the company was not simply videotaping the wedding but retained “ultimate editorial judgment and control.” The court accepted the company’s assertion that if it provided its services for same-sex couples, this would “compel […]

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State constitutional and statutory right in Arizona to refuse to create custom wedding invitations for same-sex couples

/ Antidiscrimination Law, Consumer Protection, Religious Freedom, Sexual Orientation

In a 4-3 decision, the Arizona Supreme Court has interpreted its constitution, Ariz. Const. art. 2, §6, and its Free Exercise of Religion Act, Ariz. Rev. Stat. § 41-1493.01, to give a public accommodation the right to refuse service to same-sex couples who seek custom wedding invitations. Brush & Nib Studio, LC v. City of Phoenix, 448 P.3d 890 (Ariz. 2019). Arizona has no state statute that prohibits discrimination on the basis of sexual orientation in public accommodations, but several cities, like Phoenix, have such local laws. This case involved a public accommodation that refused to produce a custom-designed wedding invitation for a same-sex couple. While Masterpiece Cakeshop, Ltd. v. Colo. Civil Rights Comm’n, 138 S.Ct. 1719 (2018) had suggested that public accommodation laws could be enforced despite religious objections by the public accommodation owner, although it did not reach the free speech issue in that case and decided the religious liberty claim on

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Abandonment of an easement shown when fence closes access to it

/ Adverse Possession, Easements

Owners built a retaining wall and deck that completely excluded the neighbor from use of the strip of land, thereby extinguishing the easement by prescription since these acts “render[ed] use of [the] easement practically impossible” for the statutory period.  Giannelli Mgmt. & Dev. Corp. v. MPA Granada Highlands, LLC, 21 LCR 211, 216, 2019 Mass. LCR LEXIS 82, 2019 WL 1995535 (Mass. Land Ct. 2019). The court also found the easement was also extinguished by abandonment because the conduct of the easement owner showed an “intent to abandon the easement by acts inconsistent with the continued existence of the easement.” 21 LCR at 216. “Nonuse of the easement, standing alone, is not sufficient to constitute an abandonment by the owner of the dominant estate.” However, an “extended period of nonuse is a factor to consider in determining whether an easement has been abandoned,” especially when combined with “acquiescence to the use

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Easement owner who exceeds the scope of the easement can obtain new use rights by prescription

/ Adverse Possession, Easements

Owner of an easement of passage that also uses the land without permission to park a car, use the area as a yard and maintain the lawn exceeds the scope of the easement and if done for the statutory period can obtain an easement by prescription for the longstanding uses. Savoie v. Zaniboni,  27 LCR 165, 2019 Mass. LCR LEXIS 58, 2019 WL 1511101 (Mass. Land Ct. 2019). The court applies the traditional presumption that uses of another’s land are nonpermissive unless evidence of permission is present.

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No easement by necessity to access fire escape

/ Easements

No easement by necessity exists that would allow a condo owner to pass through another condo to reach a fire escape. Nor was there an express easement even though the condo documents gave the unit owner the right to use the fire escape. Chamberlain v. Badaoui,  95 Mass App. Ct. 670, 2019 Mass. App. LEXIS 93, 2019 WL 3334700 (Mass. App. Ct. 2019). No express right to go through the neighboring unit to get to the fire escape was created and the court refused to create one by implication. Instead, the plans showed a second exit to the interior stairway.

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Mall owners liable for commercial tenant’s sales of counterfeit sunglasses

/ Intellectual Property, Leaseholds

The Eleventh Circuit has held a commercial landlord liable for its tenant’s sales of counterfeit sunglasses when it knew of those sales and failed to stop them. Luxottica Group, S.p.A. v. Airport Mini Mall LLC,  2019 U.S. App. LEXIS 23555 (11th Cir. 2019). The claim was for contributory trademark infringement under the Lanham Act, 15 U.S.C. §1114.

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Federal court allows public accommodation to refuse to create custom videos of same-sex weddings

/ Antidiscrimination Law, Consumer Protection, Free Speech, Gender Identity, Religious Freedom, Sexual Orientation

In a 2 to 1 vote, the Eight Circuit has held that the First Amendment prohibits a state from enforcing its public accommodations law if it requires videographers to create custom videotapes of same-sex weddings even though they provide this service to opposite-sex weddings. Telescope Media Group v. Lucero, 2019 U.S. App. LEXIS 25320 (8th Cir. 2019). Because the videos will be edited and posted on the videographer’s website, the majority accepted the defendant’s argument that they would convey a message of support for same-sex marriage contrary to the views of the regulated entity. Judges David Stras and Bobby Shepherd found this to be “compelled speech” that violates the business’s constitutionally-protected right to freedom of speech. Dissenting judge Jane Kelly found no compelled speech, just a statutory duty to provide the same services to both same-sex and opposite sex couples.

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Section 8 recipients denied right to file §1983 suit for wrongful termination of benefits

/ Due Process

The Eleventh Circuit has overruled Basco v. Manchin, 514 F.3d 1177 (11th Cir. 2008) and held that federal law does not empower housing choice voucher (Section 8) holders to bring civil rights claims under 42 U.S.C. §1983 to contest wrongful termination of benefits by a housing authority. Yarbrough v. Decatur Housing Auth., 2019 WL 3521728 (11th Cir. 2019). In this case, the hearing officer determined that the arrest and indictment of the tenant for drug-related offenses was enough to establish by a preponderance of the evidence that the tenant was no longer legally entitled to receive Section 8 subsidies for housing. The tenant brought a §1983 claim in federal court arguing that the evidence was insufficient to prove that she was using or selling drugs and that a federal regulation interpreting the Federal Housing Act, 42 U.S.C. §1437 et seq., entitled here to continue receiving benefits unless there was sufficient evidence

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Owner seeking special permit has burden of showing it will not harm neighbors

/ Zoning

A zoning board granted a special permit to au auto body shop after placing the burden of proof on neighbors to show that the shop would release harmful chemicals into the air. The Court of Appeals reversed because the owner seeking the special permit (the auto shop) should have the burden of proving that its operation would not significantly decrease air quality. Fish v. Accidental Auto Body, Inc.,2019 WL 2236279, 95 Mass.App.Ct. 355(Mass. App. Ct. 2019). In addition, the Court found that there was evidence that the shop would release hazardous substances and no evidence that would not affect public health.

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Civil law or natural flow rule interpreted to allow artificial drainage of subsurface water

/ Nuisance, Water Rights

While the “free use” rule generally allows an owner to expel surface and subsurface water without liability, the civil law or “natural flow’ rule imposes liability on an owner who artificially captures and expels such waters, especially if done in a direction different from the watercourse or the natural direction of water flow. However, interpreting a state statute codifying the civil law rule, (S.D. Codified Laws §46A-10A-70, the South Dakota Supreme Court allowed an owner to expel subsurface waters through a drainage system as long as the water followed the natural direction of drainage and the water discharged into any established or natural watercourse. In re Drainage Permit 11-81, 922 N.W.2d 263 (S.D. 2019).

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