County Board of Supervisors vs. the Constitution

The San Diego County Board of Supervisors will today – Tuesday, June 9th – consider a proposal to limit freedom of expression in and around the new Waterfront Park just outside the County’s headquarters, the Admin Center.

The Board meets at 9 a.m. but the item No. 7 is down the agenda. San Diegans upset with this proposed ordinance to limit political activities are planning to attend the meeting.  If the proposal is passed, the County will consider it again for a final go-around on June 23rd.

Under the proposal, large groups of people involved in political acts at the Park could be required to move into or be inside so-called “free speech zones”.

The problem is … that these zones of “free expression” have been declared unconstitutional by federal courts.

Let’s review for a moment, what exactly the First Amendment says:

 Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

Nevertheless, county staff reported that ever since the Waterfront Park opened in 2014, it’s become a popular spot – not just for tourists and kids and parents, but for people demonstrating of exercising their First Amendment rights to free speech and free assembly, such as as public speaking, artistic performances, musical performances, and the handing out of pamphlets.. Staff said some of these people gather in the more congested areas of the Park, the walks and recreational areas.

To remedy this, the proposal would require that gatherings of 200 or over in terms of numbers of people doing their free speech thing get a permit, a so-called “First Amendment Activity Permit” AND exercise their activities in one of the several areas of the park that would be designated as zones of free expression and in doing so not interfere with the operations of the County government.

If organizers of large groups do not obtain a permit first, they will be required to move into one of the “free speech zones” – or if there aren’t any, they will be forced to just leave.

Gatherings under 200 will not be required to get a permit – unless they bring bullhorns, booths, chairs, tables, stages.

There are amendments to the proposal that would have it used in all county parks.

Before we get to the some of the staff’s introduction of the ordinance, we need to understand that a Federal appeals court ruled in 2004 in Kuba v. 1-A Agricultural Association that restrictions on protesters at the state-run Cow Palace in San Francisco violated their constitutional free-speech rights.

The Cow Palace had installed small “free-expression zones” set hundreds of feet from the entrance in order to cordon protesters off to assure the flow and safety of vehicle and foot traffic.  The case was raised by an animal-rights activist named Alfredo Kuba, who had been prevented from demonstrating in the arena’s entrance walkway and had been arrested there three times. Kuba said the “free-expression zones” illegally prohibited him and others from protesting circuses and rodeos.

The court agreed in the 3-judge unanimous decision, where Judge Marsha S. Berzon wrote:

“Cordoning protesters off in a free expression zone the size of a parking space, located over 200 feet from the entrance, far from encouraging interaction with them, is more likely to give the impression to passers-by that these are people to be avoided.”

It was a similar situation in another case, the court reasoned, when it 1985, it set aside restrictions on Krishna members who were soliciting donations outside Anaheim Stadium. The 9th Circuit panel determined that “mere annoyance” of the Krishnas’ presence did not create the need to block them from soliciting.

Here is text right off the County Board’s agenda for today:

OVERVIEW:

In May of 2014, the Waterfront Park opened for public use. Since its opening, the Waterfront Park has quickly become a major tourist and popular recreational attraction. The park has also become a desired location for individuals or groups to express their rights to free speech under the First Amendment of the U.S. Constitution. Persons interested in First Amendment expression are attracted to the most heavily used portions of the park, which includes the walkways and recreation areas. These areas are also used by the public and County of San Diego employees to gain access to the County Administration Center to conduct civil and governmental services and by the public for recreational purposes. To ensure the continued safe and compatible use of the park and County Administration Center by all users, it is important to achieve a balance of the recreation/civic use of the Waterfront Park and the ongoing business use of the County Administration Center and free speech activities.

Today’s item proposes amendments that will establish a process for free speech activities throughout the Waterfront Park, establish Free Speech Zones for First Amendment free speech activities that do not infringe on the County’s significant government interests outlined in the ordinance, and provide for the issuance of advance permits to conduct First Amendment free speech activities in reserved
areas outside Free Speech Zones.

The proposed amendments will make it unlawful to enter a private event at the Waterfront Park without permission, and will establish a fine for the infraction. This action will also amend the County’s
ordinance that generally governs commercial and free speech activities in all other County parks and will address other issues such as commercial photography, noise levels, and the prohibition on posting or affixing materials on park property.

Today’s request requires two steps. The first step will introduce the additions to County Code Sections 41.401 through 41.412 and amendment to Section 41.136 on June 9, 2015. If the Board takes action as requested, the second reading will occur on June 23, 2015.

It appears that county staff support the proposal and have recommended its passage.

We hope cooler heads prevail at today’s meeting and instead of inviting legal suits and the unconstitutional banning of free expression except in these so-called zones of free expression, the County Board rejects the proposal. If they set up “zones of free expression”, then there must also be some places called “zones of unfree expression” – or “zones of free un-expression” where people are free to not express anything.

We urge the Republican-dominated and Democrat-weakened Board to stand up for their libertarian principles of limited government. Don’t you also believe in a strict interpretation of the Constitution? Well then, the US Constitution prohibits the making of any law abridging the freedom of speech, interfering with the right to peaceably assemble or prohibiting the petitioning for a governmental redress of grievances.

When you confine those who wish to exercise their rights, even without a permit, into “zones” – that is totally abridging the freedom of speech and totally interfering with the right to peacefully assemble – a direct violation of the Constitution in plain English.

Talk about government-over-reach! This is it.

 Sources: KPBS and First Amendment Center