ACLU letter re Proposed Ordinance 8/9/2012

Honorable Councilmember Jay Schenirer
915 I Street
Historic City Hall, 1st Floor
Sacramento, California 95814 jschenirer@cityofsacramento.org

Honorable Councilmember Sandy Sheedy,
915 I Street
Historic City Hall, 1st Floor
Sacramento, California 95814 ssheedy@cityofsacramento.org

Honorable Councilmember Steve Cohn
915 I Street
Historic City Hall, 1st Floor
Sacramento, California 95814 scohn@cityofsacramento.org

Honorable Councilmember Darrell Fong,
915 I Street
Historic City Hall, 1st Floor
Sacramento, California 95814 dfong@cityofsacramento.org

Re: Proposed Ordinance to Add Chapter 12.74 to the Sacramento City Code: Use of the City Hall Facility
Hearing date August 9, 2012

Dear Honorable Members of the Law and Legislation Committee,

The American Civil Liberties Union of Northern California writes in regard to the proposed ordinance regarding the use of the City Hall Facility. As the staff report notes, City Hall is the seat of government and for that reason the overall facility and especially Sa'Cumn'e Plaza serve as an essential forum for concerned members of the public to gather, express their views, and petition government. The prior version of the ordinance would have imposed an unconstitutional prior restraint on political speech through its onerous permitting requirement. The current version of the ordinance no longer contains that particular defect, but still imposes unnecessary and unconstitutional burdens on speech. We therefore urge you to oppose it.

We recognize the City's interest in ensuring the Plaza is available for multiple uses. But the state Penal Code and local ordinance already accomplish that goal through restrictions on conduct. The proposed ordinance goes further than to regulate conduct and unnecessarily burdens speech and expressive activity. Several examples of the proposal 's unconstitutionality are discussed below.

The proposed ordinance makes it a crime to "interfere[]" "in any manner" "with the progress or orderly conduct of the Plaza Event." See Proposed Ordinance at 12.74.040.C.l & 12.74.040.D. This provision raises vagueness and overbreadth concerns, and also impermissibly targets speech based on content and viewpoint. The outer limits of "interference" are entirely unclear. But what is clear is that the proposed ordinance would prohibit counter-protests. In other words, speech that is sympathetic to a permitted event would be allowed, while speech that articulates an opposite viewpoint would not. San Francisco has a similar ordinance restricting interference with permitted events in public parks. See San Francisco Park Code §7.08(d). That ordinance has been challenged in federal court by individuals who were seeking to protest the treatment of elephants and tigers when a circus held a permitted event in a city park, and who were cited under the ordinance. See Cuviello v. City and County of San Francisco, N.D. Cal. Case No.4:12-cv-12-03034. After the plaintiffs in the lawsuit filed a motion for a preliminary injunction against further enforcement of the ordinance, a supervisor proposed and the Board of Supervisors is now considering legislation that would repeal the ordinance. See Heather Knight, "1981 SF parks law on protests may be axed," San Francisco
Chronicle, July 30, 2012.1 San Francisco is going in the right

Also problematic is the proposed ordinance's blanket prohibition of any unpermitted "sign, display, or structure, temporary or otherwise, including tables and chairs" in the Plaza. See Proposed ordinance at 12.74.030.A.3. This prohibition interferes with speakers' ability to disseminate their message. Tables on which speakers can place their literature are necessary to "facilitate the dissemination of First Amendment speech" and, like newsracks, are therefore
"protected by the First Amendment." ACLU of Nevada v. City of Las Vegas, 466 F.3d 784, 799 (91 Cir. 2006). The Ninth Circuit has therefore held that prohibitions against the use of tables in public cannot constitutionally be applied when the tables are used to facilitate expressive activity. See id. at 799.

The proposed ordinance would also prohibit unpermitted solicitation of contributions of money or property. See Proposed ordinance at 12.74.030.A.6. It is well-established that charitable solicitation is constitutionally protected speech; as a result, the Supreme Court has repeatedly struck down efforts to regulate solicitation. See, e.g., Riley v. Nat ' l Fed. of the Blind of North Carolina, 487 U.S. 781, 789 (1988) ("the solicitation of charitable contributions is protected speech"; statute requiring disclosure of professional fundraiser fees unconstitutional); Secretmy of State of Mmyland v. Joseph H Munson Co., 467 U.S. 947 (1984) (statute regulating contracts between professional fundraisers and charities unconstitutional); Schaumburg v. Citizens for a Better Environment, 440 U.S. 620 (1980) (ordinance requiring 75% of funds solicited to be sued for charitable purposes and not administrative expenses was not narrowly tailored). The City's proposal would go far beyond regulations on solicitation found unconstitutional by the Supreme Court. Because it prohibits "even the peaceful, unobstructive distribution of handbills requesting future suppmi of a charitable organization," the prohibition is unconstitutional. See ACLU of Nevada, 466 F.3d at 797; see also Berger v. City of Seattle, 569 F.3d 1029, 1052 n.23 (91 Cir. 2009).

Neither of these prohibitions is rendered constitutional by the possibility of obtaining a permit. Permit requirements are prior restraints on speech and therefore carry a heavy burden of unconstitutionality. Permitting requirements impose real and "significant burden[s] ... on free speech" because they "eliminate[e] the possibility of anonymous" and "spontaneous speech." Berger, 569 F.3d at 1037, 1038. "Under our Constitution, anonymous pamphleteering is not a pernicious, fraudulent practice, but an honorable tradition of advocacy and of dissent." Mcintyre v. Ohio Elections Comm., 514 U.S. 334, 357 (1995). As a result, the Ninth Circuit has
repeatedly held that while permitting requirements for expressive activity may constitutionally be applied to large groups - which raise legitimate concerns about pedestrian and vehicular traffic flow and competing uses of a particular location- they cannot constitutionally be applied to individuals or small groups who do not raise such concerns. See Berger, 569 F.3d at 1041 ; Santa Monica Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1039, 1040-43 (9111 Cir. 2006). The proposed ordinance does not, however, exempt tabling or solicitation by individuals or small groups of speakers from the permit requirement, and is therefore unconstitutional under well-established Ninth Circuit caselaw.

In short, the proposed ordinance contains numerous unconstitutional burdens on speech and we urge you to oppose it.

Sincerely,

Linda Lye
Staff Attorney

1 Available at http://www.sfgate.com/bayarea/article/ 1981-SF-parks-law-on-protests-may-be-axed-3748080. php.