Free Speech Now! (And Eat at McDonald’s)

MEDIA MAVEN / BY MARCY BURSTINER
NORTH COAST JOURNAL

Free Speech Now! (And Eat at McDonald’s)

(JUNE 7, 2012)  In the movie Norma Rae, Sally Field plays a textile worker who tries to organize a union at her mill. In the movie’s climax, thugs try to throw her out of the factory. She scribbles the word “union,” climbs up on a table and holds it up. For a moment everyone in the factory stares at her. Then, one by one, the workers shut off their machines. These days it seems that people who try to fight a good fight get that kind of support only in the movies.

On May 24, Fortuna resident Janelle Egger filed suit against the Humboldt County Board of Supervisors challenging the constitutionality of Urgency Ordinance 2477, which bans camping, animals and defecation outside the courthouse and also bans the hanging of signs. In my April 5 column, I questioned the constitutionality of a law in which the only new prohibition was the hanging of signs and the gathering for peaceful protest. Existing laws covered all other activities the ordinance specified.

Police arrested Egger April 7 in front of the courthouse as she participated in a candlelight vigil held to support free speech. This is a woman who sued the city of Fortuna in 2009 under the California Public Records Act because it had refused to turn over documents about a proposal for a new water tank. The courts agreed with her on that one and ordered the city to pay for her attorney fees.

This time, she filed her 24-page brief, with another 48 pages of exhibits, in U.S. District Court for the Northern District of California.  She doesn’t have a lawyer; she’s doing it herself.

This is one of two ongoing First Amendment suits involving local laws. This month, Superior Court Judge Dale Reinholtsen will rule on the constitutionality of an Arcata ordinance passed to curb aggressive panhandling. Attorney Peter Martin filed that suit on behalf of Arcata resident Richard Salzman.

The Arcata law has multiple parts. Part A specifically bans aggressive panhandling. But parts B through G ban all panhandling in specific areas, such as near ATM machines or supermarket entrances. If aggressive panhandling is the problem, why not stop with A? Why include the rest?

This is what I find most troubling: The ease with which local governments pass speech infringement laws, how little effort they spend trying to keep them as narrow as possible and how few people these laws seem to bother.

Perhaps more troubling is that certain types of speech seem to be more vulnerable to government infringement than others.

In this paper in March, Editor Carrie Peyton Dahlberg wrote about how difficult it is to ban ugly billboards that line our highway. In 2008, a federal appeals court upheld a ban on electronic billboards only if it were content-neutral — a community would have to ban all electronic billboards. In 1984, the U.S. Supreme Court approved an anti-sign law in Los Angeles, but that’s because it banned all signs on utility poles. Back in 1981, the Supreme Court rejected a San Diego law banning billboards that created exceptions for specific categories of speech, such as political campaign signs and religious signs. “With respect to noncommercial speech, the city may not choose the appropriate subjects for public discourse,” the court said in Metromedia, Inc. v. City of San Diego. Because the court has insisted on blanket bans, local governments think twice about passing these laws. Commercial signs produce money.

In 2010, in its infamous Citizens United decision, the U.S. Supreme Court ruled 5-4 that Congress can’t limit the money an organization or even a corporation spends on donations to committees not directly affiliated with a political candidate, because that would prevent these committees from buying television time or creating expensive brochures or commercials. That would abridge their freedom of speech.

Here is the pattern I see. L.A. could ban ALL signs on utility poles. But what corporations advertise on utility poles? Few communities act to ban all electronic signs or billboards, because they generate money. If you, or your kid, or a homeless guy on the street, holds up a cardboard sign, it generates no money.  The handwritten signs tacked onto the courthouse fence generate no permit fees. The Supreme Court ruled in Citizens United that the government can’t limit the money used to create documentaries or buy air time.

Twice this year I explained how paid speech has more power than “free” speech. Now I see that speech you buy is more protected than speech that is free. It is as if the First Amendment now says: Congress shall make no law abridging the payment for speech or press.

Thank goodness that in this community we have troublemakers like Eggers and Salzman who take it upon themselves to fight for the free speech rights we all share. We’ll see which way the courts swing on these issues.

But for their efforts, Egger and Salzman seem to get more grief than support in the communities where they live. Maybe we are all just too inundated with advertising these days. I find ads in paperback books I pick up at the book shop, on the back of my grocery store receipts, on the back of a T-shirt I must stare at when on line for some event. So we find offensive handwritten signs that don’t try to push products on us, that simply assert someone’s rights as a citizen or that ask for money because someone is hungry and doesn’t have a roof over his head.

Here is an idea. Homeless people should trade signs. Instead of standing on a corner and asking for money for themselves or their family, they can ask for money for a guy on the next corner. He in turn would advertise the plight of the next guy and so on. That way they aren’t panhandling. They are advertising. And that is something governments and the courts seem to protect.  And Janelle, get yourself a corporate sponsor. Maybe Pepsi Free?

Marcy Burstiner is a professor of journalism and mass communication at Humboldt State University.

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COMMENT / BY RICHARD SALZMAN /

Thank you, Marcy Burstiner, for covering my Free Speech lawsuit against the City of Arcata for its (ironically named) Aggressive Panhandling Ordinance. I don’t see how Arcata can suggest that the simple act of holding up a sign, which is the most passive form of panhandling, can qualify as aggressive; and I object to restrictions on speech based on content (as Ms. Burstiner pointed out, you can hold up a sign to advertise or sell something but not one asking for a handout).

I think it’s important for people to consider that if you believe in the protection of free speech and in defending our Bill of Rights, then you need to be willing to defend the rights of people you don’t agree with, or find annoying. Or, in the case of the ACLU defending the Nazis’ right to march in the predominantly Jewish town of Skokie, Illinois, even people you find repulsive.

As Voltaire stated, “I disapprove of what you say, but I will defend to the death your right to say it.”

Both my lawsuit and Janelle Egger’s lawsuit against Humboldt County for its ordinance restricting protests on Courthouse property are being supported in part by the Humboldt Civil Liberties Defense Fund, of which I am a member. We welcome your support and I encourage anyone wishing to contribute to help fund these cases, and our overall efforts to defend civil liberties in Humboldt County, to visit us online at HCLDF.org.

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Unusual Lawsuit: Can City Silence An Already Silent Request?

Unusual Lawsuit: Can City Silence An Already Silent Request?

Arcata, California--Is it illegal to merely hold up a sign asking for
money?

The City of Arcata thinks it is, but a citizen lawsuit contends the city
overstepped its bounds and its panhandling ordinance is unconstitutional.



Arcata taxpayer Richard Salzman, who filed a lawsuit in Humboldt County
Superior Court against the normally ultra-liberal city, said: “If
first they silence the poor and the homeless, and we say nothing, who
will speak up when they try to silence rest of us?”

He noted that the section of the ordinance against “aggressive
panhandling,” including blocking one’s path, any physical contact or even
yelling, would be left unchallenged by his legal action.

But to achieve the city’s goal of criminalizing the 'speech'--or even a
mute appeal--of a few beggars, Arcata has criminalized all charitable
solicitations for money.

Salzman said, "The ironical aspect is that Arcata so far has
spent around $10,000 of the taxpayers' money defending a law so one
would not have to to read a sign asking, 'Buddy, can you spare a
dime?' How insane is that?"

The judge overruled an objection by the city's attorney and allowed a
photo to be entered into evidence that illustrated the absurdity of the law during
the trial on May 23rd 2012.

The court has 90 days to rule on the case. The losing party will then
have the opportunity to appeal.

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NBC affiliate KIEM News Ch3 lead story

Arcata's Law Unconstitutional

Contending that Arcata’s panhandling ordinance is unconstitutional, resident Richard Salzman informed the City Council that he intends to file a lawsuit unless the ordinance is amended.

As written, the ordinance makes it a crime to merely hold up a sign asking for money. By denying citizens constitutional right of free speech, Salzman contends the City Council overstepped its authority.

“If first they silence the poor and the homeless, and I say nothing, who will speak up when they try to silence me?” Salzman asked.

He noted that the section of the ordinance against “aggressive panhandling,” including blocking one’s path, any physical contact or yelling, would be left unchallenged by this legal action.

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February 14, 2011

Susan Ornelas, Mayor
Michael Winkler, Vice-Mayor
Shane Brinton, Council Member
Alexandra Stillman, Council Member
Mark Wheetley, Council Member
Randy Mendosa, City Manager
Nancy Diamond, Esq., City Attorney

City of Arcata
736 F Street
Arcata, CA 95521

Re: Unconstitutional Panhandling Ordinance enacted April 16, 2010, as Arcata Municipal Code [AMC] Sections 4280-4282.

Dear City Council, City Manager and City Attorney:

Please take notice that Mr. Richard Salzman, a resident of, and taxpayer within, the City of Arcata, has retained the undersigned to bring an action against the City of Arcata to declare its panhandling ordinance unconstitutional and to enjoin the City from any further enforcement of said ordinance. The purpose of this letter is to invite the City to amend its panhandling ordinance as set forth herein, and thereby avoid the expense, uncertainty and unpleasantness of contested litigation.

Specifically, Mr. Salzman contends that AMC Sections 4282B, 4282C, 4282D, 4282E, 4282F and 4282G are unconstitutional. The overall impact of these sections is to criminalize begging in most of the City where it would be fruitful to beg. Begging is a charitable solicitation. The First Amendment clearly protects charitable solicitations. No distinction of constitutional dimension exists between soliciting funds for oneself and for charity. The fact that a beggar keeps the money she receives does not strip the speech of First Amendment protection. A speaker’s rights are not lost merely because compensation is received; a speaker is no less a speaker because she is paid to speak.

To be lawful, the ordinance must serve a compelling interest that is narrowly drawn to achieve its end. The City’s compelling interest, if one exists, is well-served by the ordinance’s ban on aggressive panhandling, to which Mr. Salzman does not take exception. Mr. Salzman objects to the near-total ban on begging in public fora, the justification for which can be little more than avoiding “annoyance” to the public, hardly a compelling interest in First Amendment jurisprudence. Moreover, the ordinance’s ban on begging is not “narrowly tailored;” indeed, it is embarrassingly broad. To achieve the City’s goal of criminalizing the speech of a few beggars, the City has criminalized all solicitations for money. A girl scout cannot sell cookies on the City’s streets. Nor may any charity solicit money in most of the City. A beggar cannot even hold a sign up to ask for money; a more clearly content-based restriction on speech is difficult to imagine.

The City’s attempt to justify these draconian restrictions on speech under the so-called “captive audience rule” is unavailing. The City’s expansion of that concept to include almost all public space within the City perverts the intent of the rule and strikes at the very heart of discourse in a democratic society- the right to communicate with one’s fellow citizens on the public commons.

Other constitutional concerns are implicated in the City’s ordinance. The criminalization of solicitation implicates equal protection concerns, to wit, the ordinance targets the First Amendment rights of the City’s poorest and most downtrodden residents, while it remains legal to accost members of the public to ask the time of day, or to sign a petition. The complexity of the ordinance, with its crazy patch-work of places where it is illegal to beg, implicates notice and due process concerns. A reasonable citizen of the City lacks adequate notice as to where she may beg and where she may not beg. Likewise, the ordinance’s definition of “panhandling” leaves questions unanswered: Is a check or credit card transaction on the City’s streets illegal, or just a cash transaction? This renders the ordinance subject to challenge for vagueness.

Mr. Salzman would prefer to resolve this matter without litigation, and to that end, invites the City and its attorneys to meet with the undersigned to work toward resolution of the issues raised herein.

Respectfully,

Peter E. Martin

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Read article in Arcata Eye
and post on Humboldt Herald.
Link to JPR radio show on subject (starts at 30:min mark):
http://podcastdownload.npr.org/anon.npr-podcasts/podcast/172/510073/134265248/JPR_134265248.mp3?_kip_ipx=898705313-1299267811