Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Freedom From Religion Foundation has sued the city of Rancho Cucamonga over their actions causing a private sign company to take down a billboard they had contracted for that said "Imagine no religion." You can see the full complaint here. I'm a little baffled by a couple of things in it. First, they're asking for a jury trial, which I think is a bad move. A judge is much more likely to be amenable to their arguments than a jury.
Second, they should also be suing the sign company that took it down. They had contracted for and paid for the billboard for two months and it was only up a week when it was taken down. That's a pretty clear breach of contract. The allegations against the government, however, seem pretty compelling to me:
"The Defendants' actions, including by interfering with and contributing to cause FFRF's message to be removed from the public realm, were undertaken precisely because of the content of FFRF's message, including the Defendants' perception that FFRF was expressing an idea that some members of society found offensive or disagreeable."The Defendants' actions, including by interfering with and contributing to cause FFRF's message to be silenced, were taken under color of law, and in violation of FFRF's Free Speech rights under the First Amendment to the United States Constitution."
Even if the city didn't order the removal of the sign, they did evidently contact the sign company to complain about it and tell them of complaints they had received and, depending on who you believe, asked that it be taken down. The government has no business doing that and the FFRF is correct that this is pretty clearly viewpoint discrimination. This is, as far as I know, a rather novel legal approach of applying the concept of viewpoint discrimination to government actions to discourage access to private property rather than public property.
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The billboard company refunded FFRF's money (according to the story I read), so that's not technically a breach of contract, is it?
Otherwise, I agree, I think the FFRF should have added the sign company to the list of defendants.
Posted by: FastLane | December 1, 2008 9:38 AM
We just saw a new "Reason's Greetings" sign in downtown Madison, and I was looking for a picture of it online friday to put on my blog. Then I noticed the lawsuit news on the ffrf.org site, and I also agree that they should have probably sued the sign company. Even if they refunded the billboard rental, there's the cost of making the sign, and the labor in putting it up. They had a contract and it was breached, no matter if the money was returned. But perhaps there was a clause in the contract that would have made it difficult for the FFRF to sue?
Posted by: Inoculated Mind | December 1, 2008 10:16 AM
I think it would be unlikely for the billboard company to draw up a contract that doesn't allow them to cancel the contract and return the money for whatever reason. In which case, there is really no "breach of contract" here and no basis for suing the billboard company. Only the city would be on the hook.
Posted by: CS | December 1, 2008 10:43 AM
Go FFRF. Sic 'em.
Not sure where the jury pool will come from but the LA area has a pretty high civil liberty awareness quotient. Just depends on how big the net is cast to make up the pool.
The city may settle out of court making that a moot point given the evidence I've read so far. Be interesting to see what they say in their defense whether or not they go to trial.
Posted by: Mike | December 1, 2008 10:49 AM
There is a case for breach against the sign company, but it isn't economical to bring the suit, even if you get triple damages.
The real question, as Ed notes, is whether government communication to the sign company meets the government action requirement for a viewpoint discrimination suit. There would clearly be instances where government action could be found; I don't see this as one, without knowing more facts.
The only government action I've heard is a single phone call from a department head, but without authorization from above. The conversation passed on complaints about the sign (we can presume the sign company had already received a few; probably more than the city had) and asked if something could be done. That's pretty slim evidence for government action. Yes, the conduct is a very mild version of the Heckler's Veto. But the only real action was by the sign company.
As Ed notes, this appears to be a wide-open area of 1st Amendment jurisprudence. But I think it will require a much better case to move forward. Had City Council sent a letter demanding the sign come down, yes; had Council passed a resolution condemning the sign but done nothing more, maybe (but probably not, the company is still a free actor). This without further evidence? No.
Posted by: kehrsam | December 1, 2008 11:07 AM
What gets me, is that people saw a sign put up by atheists, and, instead of calling the sign company to complain, or writing a letter to the editor for the local paper, they immediately called City Hall. That's who they turned to -- the government. Doing this made sense to them. In their minds, that's what elected officials should do -- help purge the community of public expressions of atheism. One nation UNDER God.
The more stink about this, the better. No more closets.
Posted by: Sastra | December 1, 2008 1:29 PM
I live about an hour south of there and, unfortunately, it's in San Bernardino county and doesn't draw from the much more liberal L.A. county population for it's jury pool. The politics move further right the further you get from L.A. and the religiosity goes way up, too.
Posted by: twincats | December 1, 2008 2:10 PM
That's a pretty clear breach of contract.
Maybe, maybe not. For all we know the contract might have had some kind of a backout clause. Have to see the contract itself to know for sure whether it's been breached.
Posted by: Eveningsun | December 1, 2008 2:20 PM
They overlooked an obvious claim against the city: "tortuous interference with contract".
It's implied in all of the allegations, but not included as a separate cause of action. It would also appear to be the strongest claim, as it doesn't require proof that the city's actions violated their constitutional rights (they would merely have to show that their motivation was to wrongfully cause the contract to be breached). OTOH, maybe that's why it was omitted, so that they have to litigate the free speach / religion aspect. (There is no requirement that you have to press your strongest claim in a lawsuit, although if you don't include it in your filings (or shortly thereafter), you can't later claim it).
["tortuous interference with contract" is where a non-contracting party induces a party to breach a contract with someone else. It's a tort, not a contract claim, and so punitive damages are available.]
Posted by: divalent | December 1, 2008 4:02 PM
I don't think its worth it to go after the sign company. Most media contracts contain various clauses that tend to protect companies from those kind of claims. When you buy ad space, whether its on a sign, or a newspaper/magazine or on TV, the contract will say that the media company will "attempt" to run an ad, but it does not usually guarantee it.
Posted by: Patrick | December 1, 2008 4:27 PM
I agree with Ed that the request for a jury trial is likely to be a mistake. I don't think they'll be able to put together a jury, given standard voi dire practices that would be amenable to a free speech argument. You're simply going to have too many people who aren't able to accept the viewpoint of others. California passed Prop 8, that shows me that while in many ways they have move forward, there is still a lot of work to do.
Posted by: dogmeatib | December 1, 2008 7:06 PM
Demanding a jury is a free-roll. You can later change your mind from "jury" to "no jury," but you can't change your mind from "no jury" to "jury." So to preserve your option, you demand a jury.
Posted by: maurile | December 1, 2008 8:47 PM
Why the case is being taken to a jury:
If the jury finds for the city, then there is grounds for appeal to a higher level. The higher this goes, the more likely it is to reach a level that establishes precedent.
Posted by: g347 | December 3, 2008 11:35 PM