Ninth Circuit Invalidates Redondo Beach Anti-Solicitation Ordinance

The Ordinance States:

(a) It shall be unlawful for any person to stand on a street or highway and solicit, or attempt to solicit, employment, business, or contributions from an occupant of any motor vehicle. For purposes of this section, "street or highway" shall mean all of that area dedicated to public use for public street purposes and shall include, but not be limited to, roadways, parkways, medians, alleys, sidewalks, curbs, and public ways.


(b) It shall be unlawful for any person to stop, park or stand a motor vehicle on a street or highway from which any occupant attempts to hire or hires for employment another person or persons.

The Ninth Circuit held that the ordinance, which was enacted to regulate the solicitation activities of "day laborers," was not narrowly tailored to the City's interests in traffic safety and flow.  In explaining the measure's breadth, the court observed:


The case is Comite de Jornaleros de Redondo Beach v. City of Redondo Beach (9th Cir., Sept. 16, 2011).

The Ordinance technically appl[ies] to children selling lemonade on the sidewalk in front of their home, as well as to Girl Scouts selling cookies on the sidewalk outside of their school and would prohibit signbearers on sidewalks seeking patronage or offering handbills even though their conduct does not pose a traffic hazard, as well as prohibit sidewalk food vendors from advertising their wares to passing motorists. The Ordinance applies to a motorist who stops, on a residential street, to inquire whether a neighbor's teen-age daughter or son would be interested in performing yard work or babysitting. (citations and quotations omitted)

Phoenix Panhandling Law Invalidated

The Arizona Court of Appeals has invalidated a Phoenix ordinance that banned panhandling at night.  The court, applying intermediate scrutiny, held that the ordinance was not narrowly tailored owing to the fact that it banned peaceful, non-threatening forms of solicitation.  It rejected Phoenix's argument that the government could protect people on the public sidelwaks and streets from unwanted and uncomfortable encounters. 

“Our constitution does not permit government to restrict speech in a public forum merely because the speech may make listeners uncomfortable,” the appeals court wrote. “The First Amendment does not allow the City to restrict speech in a public forum merely because listeners might prefer not to hear a message that may annoy them or make them uneasy.”

 

The Network and Public Protest

In public protests around the world, governments have taken steps to deny or interefe with protesters' access to the Internet and to cellular service.  Such access has been critical in terms of facilitating the organization of public protests against repressive regimes.  Cut off the network, and you may prevent or at least weaken the protest.  Interference with network access also limits the ability of protesters to transmit information about what is happening on the ground.    

I wouldn't call San Francisco's BART, a public transportation agency, a repressive regime.  However, the agency recently cut off cell service in the subway system in advance of a planned protest.  Protesters had indicated that they would use social networking services to coordinate their protest and to report on the number and location of police.

I tend to agree with Eugene Volokh's conclusion that BART's temporary restriction is constitutional under current First Amendment doctrine.  In so-called nonpublic forums, government can restrict speech based on its content so long as the restriction is both viewpoint neutral and reasonable.  The restriction here is clearly viewpoint-neutral.  But is it reasonable?  Arguably so, since a significant protest might have interfered with BART service and disrupted travel in the system.  Under current public forum doctrine, that's probably sufficient to uphold the restriction.

But where does that logic lead?  Might it result in similar restrictions being upheld in public areas that are designated for speech activity?  Is the service interruption really so different from barricades, fences, and other physical restrictions that limit or in some cases prevent effective communication?  All of these things interfere with, but do not entirely prevent, public speech.  A service interruption makes it more difficult to organize a protest.  But so do police surveillance, protest zones, permit applications, etc.  Perhaps, as Volokh suggests, the distinction lies in the content-based nature of the service interruption.  That was clear in the BART case; but it might not be conceded in others.  Or is a service interruption a presumptively unconstitutional prior restraint on speech?  Courts may ultimately have to address this issue, as authorities seek new means of regulating protests in networked public places.

Oakland's "Bubble Ordinance" Invalidated As Applied to Sidewalk Counselor

In Hoye II v. City of Oakland (9th Cir. 2011), the court invalidated Oakland's "bubble" ordinance, as applied to an abortion clinic sidewalk counselor.  I especially liked this opening passage:

Throughout our nation's history, Americans have counted on the First Amendment to protect their right to ask their fellow citizens to change their mind. Abolitionists, suffragists, socialists, pacifists, union members, war protestors, religious believers, civil rights campaigners, anti-tax activists, and countless others have appealed to the principle, enshrined within the First Amendment, that in a democracy such as ours, public debate must be robust and free and that, for it to be so, the Constitution's protection of the freedom of speech must extend to the sidewalk encounter of the proselytizer and his prospective convert. These instances of public persuasion constitute the lifeblood of a self-governing people's liberty, and so even when the beliefs propagated seem to some the “rankest error” that “naturally would offend” any listener, our founding charter deems such encounters “in the long view, essential to enlightened opinion and right conduct on the part of the citizens of a democracy.” Cantwell v. Connecticut, 310 U.S. 296, 309–310 (1940). This case calls on us to apply that principle.

As the court indicated, the  main problem with the enforcement of this ordinance, which restricts counseling and other forms of speech within the personal space of abortion clinic patients, was that authorities did not apply it even-handedly to counselors who encouraged women to utilize the facilities.  The record indicated that only  sidewalk counselors who sought to convince women not to obtain an abortion were arrested and prosecuted under the ordinance.  I suspect this is typically the case -- i.e., a bubble ordinance is couched in neutral terms, but applied only to those who are near the abortion clinic to protest its activities and to discourage women from obtaining and abortion.   

Eugene Volokh has more on the decision here.

Dearborn Leafletting Ruling

A federal appeals court has ruled (2-1) that a decision by Dearborn, MI officials to limit evangelists to a booth rather than surrounding sidewalks during the city's annual Arab-American festival violated the First Amendment speech rights of the leafletters.

Snyder v. Phelps

There have obviously been a lot of public protest activities of note recently (Egypt and other global hot spots, the protests in Madison, Wisconsin).  Today the Supreme Court handed down its decision in Snyder v. Phelps, the case involving the funeral protests by the Westboro Baptist Church.  The case garnered lots of media attention, in part owing to the sympethetic plaintiffs and the incendiary speech of the Phelps family, who comprise the Westboro Baptist Church.  The Court held, 8-1, that the civil verdict against the WBC for intentional infliction of emotional distress and "intrustion upon seclusion" could not stand.  The majority concluded that the WBC's speech was on "a matter of public concern" and thus entitled to full First Amendment protection.  It was also significant that WBC's members were speaking on a public sidewalk, or "public forum," where they had a right to be.  Justice Alito argued in dissent that since Mr. Phelps, the father of the fallen Marine, was a private figure, full protection ought not to apply to the WBC's speech.  He likened their expression to a verbal assault that inflicted psychological injury, and disagreed with the majority that civil liability could not attach to such expression.

The decision is a strong re-affirmation of some very basic First Amendment principles.  Public speech in a public forum on matters of public concern is granted special protection under the First Amendment.  Moreover, the hatefulness or offensiveness of spech is not a proper ground for regulating or suppressing it.  Under the intentional infliction theory pursued in the case, "outrageousness" is the core standard for determining whether a statement is tortious.  The Court rightly rejected that as a standard for jury application, on the ground that it invites subjective judgments regarding the content of expression.  In traditional public forums, as well as newer cyber-forums, speech is often heated, hateful, and offensive.  (The Court dodged regulation of "outrageous" speech on the Internet by concluding that a Web posting by WBC was not properly made part of the plaintiff's case on appeal.)  Indeed, that is often the point.  So, too, do speakers frequently use public places to amplify or publicize their messages -- as the WBC has done with what can only be characterized as substantial success.  The Court granted protection to this contestation of place (within the limits of reasonable, content-neutral, time, place and manner regulations).  In sum, although many will no doubt share Justice Alito's aversion to the speech in question and WBC's tactics, Snyder v. Phelps is a very significant victory for public speech and contention.    

Arizona Funeral Protest Law

The Arizona legislature has quickly enacted limits on protests near funerals.  The law was passed in anticipation of protests at the funerals of some of the victims in the recent Tucson shooting.   It is apparently modeled on an Ohio measure that was upheld by the Sixth Circuit.