Some city ordinances are like rotting wood. They sit there for years, never used until one day you need to deal with a situation like those pesky KKK members who want to distribute pamphlets to persons driving vehicles or someone else who wants to display a sign on an overpass telling drivers as they approach the merger I-44 and I-55 that 911 was an insider’s job.
If the ordinance is not properly constructed – like rotting wood – it crumbles and you watch your case disintegrate while police officers and city councilmembers wonder – sometimes out loud – what is wrong with the city attorney? To top it off, the ACLU joins the fray and the next thing you know a simple little municipal court violation becomes a federal case and you are trying to defend in federal court the impossible.
It is hard to fault city officials. After all, common sense, as well as automobile accident statistics tell us that the number four cause of accidents is roadside diversions even for a split second. In addition, it is easy to trip over the right of free speech if the ordinance touches in any way on the Free Speech Clauses of the federal or state constitutions. Lawyers freely admit that one of the most difficult lawyering tasks is drafting laws that deal with free speech.
Several recent Missouri cases illustrate how easy it is to fall into the free speech death trap. In the Desloge case the city ordinance prohibited any solicitation activities in or upon any public highway, thoroughfare, or street within the City including sidewalks. The KKK planned to distribute handbills in the City and wanted to approach individuals within stopped vehicles and distribute leaflets to them. The City advised the KKK that they could not stand within the intersection and approach drivers and/or pedestrians in other public, private, or semiprivate areas, including public parking lots near the intersection. As a result the KKK canceled their plans to distribute literature. The City – on advice from its attorney – reaffirmed its position. Consequently the KKK canceled their plans to distribute literature and filed a lawsuit in U. S. Federal District Court alleging that the ordinance and its proposed application to the KKK violated their constitutional rights.
The City defended its prohibition of the use of the streets by referencing the three busiest intersections, arguing that the time it would take the driver in a stopped vehicle to take or refuse a handbill would disrupt traffic. Relying on longstanding precedent that the distribution of leaflets and handbills is a protected activity, the court determined that the Ordinance covered a substantial amount of protected free speech activity and was invalid. The Ordinance was not tailored to particular times, problematic locations, or circumstances under which the City might have legitimate concerns about traffic safety and congestion. The Ordinance was a complete ban on the use of streets, including sidewalks, and was much broader than similar bans that the court had previously held invalid. Therefore, the district court granted the KKK a preliminary injunction based on the likelihood that the City would lose the case.
In another case, involving the City of St. Louis, the police were called to investigate whether or not a banner on an overpass near the merger of I-55 and I-44 violated a city ordinance that prohibited: “… the sale of any goods or merchandise, display any sign or pictures, participate in or conduct an exhibition or demonstration, talk, sing or play music on any street or abutting premises, or alley in consequences of which there is such a gathering of persons or stopping of vehicles as to impede either pedestrians or vehicular traffic.” The officers observed a group of citizens and told them to leave because they were impeding traffic. When they refused, they were arrested and charged with violating the ordinance. The charges were later dropped. When the case was appealed, the 8th Circuit Court of Appeals held that the ordinance was unconstitutional on its face.
The difficulty is that these lawsuits costs the taxpayers money and are a total waste of time and money since the prevailing party is entitled to their attorney fees and costs plus the city may have to pay damages. While it might be hard in the first instance to write an ordinance that passes constitutional muster, it is pretty simple to find cases where the ordinance has been upheld. These laws are very plain: don’t stand in a roadway so as to obstruct the free and uninterrupted passage of vehicles, traffic, or pedestrians of some other similar version of this language. In addition, don’t write your personalized ordinance. Instead just copy and paste from a case in your jurisdiction that has been found to be constitutional.
The time to get rid of the dead wood in the city code is before the “9/11 Questions Group” or the KKK arrive in your community asking about your ordinances with respect to the distribution of information. A good time to make these changes is when you are doing a general revision of the city code.
When these groups show up the chances are they already know that your ordinance is invalid. If you are faced with a situation where they are knocking on the door asking about your ordinances with respect to distribution of information and you determine the ordinance is unconstitutional, repeal it immediately and replace it with an ordinance that is constitutional. Consider taking action by being proactive like the City of Rochester did before faced with the problem.