By Miriam Raftery and Janis Russell
“It is the basic tenet of all Americans to speak truth to power without restriction or regulation.” – David Patterson, U.S. veteran and Ramona resident (photo, left, by Janis Russell)
View video of complete hearing (item 7): http://sdcounty.granicus.com/MediaPlayer.php?view_id=9&clip_id=1682
June 10, 2015 (San Diego)- San Diego’s Board of Supervisors yesterday postponed action until July 21st on a controversial proposal to restrict protesters in the Waterfront Park outside the County Administration Building. The County claims its goal is to protect free speech rights while also protecting rights of the growing number of others using the new waterfront park for activities such as weddings, picnics, concerts, yoga and children’s play.
Supervisors voted to delay action and ask staff to re-examine the proposal after the American Civil Liberties Union sent a letter calling the action “probably unconstitutional” as written, also noting that the City of San Diego has no permit requirements for free speech activities. Members of the public and Supervisor Dianne Jacob also voiced concerns about the proposed ordinance.
The ACLU learned of the county's plans through an inquiry from our media outlet, in which we asked about the legality of the proposed action.
The measure would restrict free speech activities to designated free speech zones (view map) and require permits for groups over 200 or those of any size that want to use amplified sound, chairs, tables or a stage. Those permits take 20 days to process. Exceptions would be made for “spontaneous” demonstrations that don’t use amplification, chairs, tables or staging.
The ACLU letter, written by ACLU legal director David Loy to the city’s Deputy County Counsel Justin Crumley, noted that the Waterfront Park is a traditional public form in which courts have held that government’s ability to regulate speech is sharply limited. The 9th Circuit Court of Appeals has held that in public forums, “the government must bear an extraordinary heavy burden to regulate speech n such locales, especially `core First Amendment speech.’”
Public parks provide a free forum for those who can’t afford TV infomercials, billboards or newspaper advertisements and restrictions in these places could mean a bias toward” the wealthy or chose who enjoy support of local authorities,” the ACLU letter noted. Government may not restrict content of speech, only reasonable regulations on time and place and must allow ample alternative communication channels. According to the ACLU, the statute proposed.
The proposal would restrict free speech activities to designated free speech zones for large groups over 200 and also for any groups regardless of size that interfere with other uses of the park such as weddings, picnics or kids playing on a playground. The ACLU found that language too vague, with no objective standard, noting “uncertain rules inevitable chill protected speech.” Moreover, since any speech that offends say, a picnicker, could be restricted that would violate the First Amendment ban on regulating content of speech. The 9th Circuit has also held that only major interference such as blocking traffic or barring citizens from reaching destinations can justify regulating free speech.
In addition, the ACLU objected to large portions of the park being off limits to protesters, as well as asking 20 days advance notice and the potential to demand indemnification and insurance from those seeking permits for larger events. “A requirement to obtain a permit before engaging in speech is a prior restraint,” the ACLU pointed out, which would be unconstitutional. Indemnification clauses have similarly been struck down by the courts..
At Tuesday’s hearing, David Hall, clerk of the board, read changes made by staff in direct response to the ACLU letter. Staff added the numbered sections (41.401) and made other changes including the definition of the regulated First Amendment activities. The new definition is: First amendment activities, regardless of the number of attendees that would physically interfere with the uses and functions of the park and/or the center, as described in 41.401 D1-4, if conducted outside free speech zones, without a permit, or exceed the noise standards in 41.401 D5. Another change was that the first amendment permitees agree to not transfer, assign, or sell rights associated with the permit without authorization from the County.
Sarah Aghassi, deputy chief administrative officer, read a presentation about the Waterfront Park. It had opened May 13, 2014, and it has since become a popular place for many recreational activities. The amendment includes free speech zones. “The ordinance bans strict commercial activities unless there’s a permit given by the County.” A person can’t enter a private event without permission and doing so results in a fine. The ordinance’s intent is to bring balance between the free speech activities and recreational usages.
The item was initially on the consent calendar, until a member of the public asked to have it pulled for discussion.
Two people spoke in opposition. There were no speakers in favor.
David Patterson, a Ramona resident and American veteran spoke against designating protest zones and creating a requirement for permits for people to protest. He recalled that while he was in Thailand during the Vietnam War, he heard about the big anti-war protests in America. “I distinctly remember being proud that I was protecting Americans’ rights to speak truth to power…despite the fact that at that time, I disagreed with their opinion.” He added, “It is the basic tenet of all Americans to speak truth to power without restriction or regulation. It’s important to tolerate dissenting opinions, even offensive ones, he stated. “Protests have never been a problem in San Diego and they never should be a problem in San Diego, “ Patterson concluded, then urged Supervisors to “drop this very bad idea.”
Kate Yavenditti from the National Lawyers Guild spoke next. The organization is a progressive bar association that serves as legal advisor to demonstrators on their rights and responsibilities nationwide, also serving as a legal observer and liaison to law enforcement including protests here in San Diego.
She voiced strong opposition on legal issues and agreed with the ACLU opinion that the ordinance is probably unconstitutional. “The city does not require permits for free speech activity, no matter what the size,” she said, adding that trying to limit larger gatherings is a “huge problem.” She urged Supervisors to “consider very seriously the quagmire you are stepping into in restricting free speech,” adding that Americans have “fought long and hard for our right to free speech.” She concluded, “I understand that there may be a necessity for control of people getting out of control, but a permit process is not constitutional, not acceptable, and you’ll be looking at a lot of litigation if you move forward with it.”
Justin Crumley, Senior Deputy County Council, addressed a few of the misconceptions he has heard. First, he explained that denial based on constitutionality is not in the ordinance. As far as needing a permit for free speech events, he explained that a permit was only required if there was amplified sound involved with tables/chairs etc. regardless of the number of people. It’s a chance for them to reserve an area too. There can also be spontaneous demonstrations without the use of amplified sound.
Supervisor Greg Cox said he thinks someone having a wedding should be able to do so “without having to deal with someone expressing their free speech rights” and noted that before the waterfront park was built, people were only coming to the site to express themselves or conduct county business. But he noted as others did that the city of San Diego does not require permits or zones for free speech at its civic center. “I don’t know that this is an urgency item. I want to make sure we’re on good footing.”
Supervisor Dianne Jacob asked for clarification of the permit requirement, adding, “I do think some issues need to be addressed.”
Crumley explained that a permit is required if the demonstration includes tables, chairs, and amplified sound that would interfere with government interests. (A fire alarm went off, disrupting the meeting briefly).
Upon return, Jacob continued pressing staff. ““While you say this is about a balance and enhancing free speech, you’re requiring a permit under certain circumstances for free speech activities. This doesn’t make sense to me. That sounds like a special event permit. I think it’s mischaracterized in the ordinance. And I am also concerned, I think that we should treat all of our parks the same.”
Crumley told her this free speech permit has to include some kind of free speech activity. When asked if this ordinance applies to all parks or the Waterfront Park, Crumley told her it would just apply to the Waterfront Park, noting that the Waterfront Park is different because significant governmental business is conducted here.
Brian Albright, director of Parks and Recreation, went on to explain that there are free speech zones in other county parks and those parks also require a permit for amplified sound without having to do with free speech. At Waterfront Park, there are multiple “floating” free speech zones, where those areas can be moved depending on the size of the group and the area to protest. These areas don’t have to be reserved.
Jacob asked if this free speech permit was discretionary or ministerial. Crumley told her it’s ministerial if all the requirements were met. A permit is not required as long as it doesn’t interfere with other government interests.
Thomas Montgomery, County Counsel explained that special event permits put more restrictions on groups but that when free speech is involved, the county can only regulate things that could interfere with the building use or activities . “We have to meet our obligations as free speech is concerned, by expanding areas that would be available for free speech.”
“So have we had a problem?” Jacob asked.
Aghassi said that people have come for a number of recreational activities at the park and it’s important to accommodate everyone.. If a free speech activity brought thousands of people, there could be a need for planning to accommodate multiple groups. An electronic music festival that drew 15,000 forced shutdown of a playground.
Jacob responded that she understood the intent was to enhance free speech, but she felt the ordinance didn’t communicate that in any way. “The ordinance needs more work.” She brought up again how it should be consistent with all parks.
Helen N. Robbins-Meyer, Chief Administrative Officer, said the intent of the ordinance is to “protect folks that come down to have free speech.” She brought up events where a large number of people attended, like the opening of Waterfront Park last year, where over 20,000 people came. At that event, people showed up who wanted to exercise their right to free speech. Since they’ve been working on the ordinance for six months now, she felt that they have satisfied the ACLU letter with the language clarification that was read earlier by Hall.
Supervisor/Vice Chair Dave Roberts thanked the speakers for sharing their views, and he also expressed gratitude to Patterson for his service in the military. “I think the CAO said it very well… We’re trying to protect free speech… There are a lot of competing priorities.” He shared how pleased he was that the concerns in the ACLU letter were addressed, according to staff. He expressed his concerns over how to prepare for free speech and other recreational activities, which should be considered. He also complimented staff for their thoughtful approach. “We’re heading in the right direction,” he added.
Supervisor Ron Roberts also praised staff for how they have brought order to the park, so there wouldn’t be any disruptions of weddings or other activities (though no such disruptions have been reported.)
“When we say privacy or free speech, emotions overrule thoughtful processes sometimes,” he stated. “We don’t live in a world where people are so civic in their behavior that we can assume any group will come in here and be respectful of others rights. Free speech sometimes iis used to cloak behaviors that are disrespectful of other peoples use.” Then he added, ignoring concerns raised by the National Lawyers Guild and without hearing from the ACLU whether its concerns were fully resolved, “I’m satisfied that staff has responded to the ACLU letter… I think it deserves a vote.”
He moved for approval of the ordinance, followed by a second from Chairman Bill Horn.
But Cox said he felt that the ordinance should be looked into again. He wanted it to be brought back at their first board meeting in July. He felt that they could take their time with this.
Ron Roberts then modified the motion to bring the ordinance back to the only meeting they have in July on the 21st. Jacob seconded the motion, reiterating her concern with the permit issue. The motion to table the issue until July 21 passed, with all supervisors voting in favor.