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Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Santa Cruz Superior Court Judge Michael Barton ruled today (March 19) that a Santa Cruz City law that prohibits political tabling for more than an hour is unconstitutional.

Activist Steve Argue was arrested twice under the law in June and July 2003. He was arrested staffing a joint political table of the Peace and Freedom Party and Homeless United for Friendship and Freedom.

A number of police began to time and monitor Steve Argues political activities as soon as he erected the literature table on the sidewalk of Pacific Avenue. When an hour was up the police demanded Argue take down his table or face arrest. Argue refused the police orders saying that City law was in violation of the First Amendment to the Constitution. Twice, on June 23 and July 6th, he was handcuffed and taken to jail with literature and signs taken in as evidence.

Today Judge Barton agreed with the argument put forward by Steve Argues attorney, Tony Bole, that the law is unconstitutional on the grounds that it discriminates against non-commercial displays in favor of commercial displays. Those setting up commercial displays can attain a license and sell their products all day while there is no such avenue for non-commercial displays such as free literature.

First Amendment Center
Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

March 19, 2004
For immediate release:

Santa Cruz Superior Court Judge Michael Barton ruled today that a Santa Cruz City law that prohibits political tabling for more than an hour is unconstitutional.

Activist Steve Argue was arrested twice under the law in June and July 2003. He was arrested staffing a joint political table of the Peace and Freedom Party and Homeless United for Friendship and Freedom.

A number of police began to time and monitor Steve Argues political activities as soon as he erected the literature table on the sidewalk of Pacific Avenue. When an hour was up the police demanded Argue take down his table or face arrest. Argue refused the police orders saying that City law was in violation of the First Amendment to the Constitution. Twice, on June 23 and July 6th, he was handcuffed and taken to jail with literature and signs taken in as evidence.

Today Judge Barton agreed with the argument put forward by Steve Argues attorney, Tony Bole, that the law is unconstitutional on the grounds that it discriminates against non-commercial displays in favor of commercial displays. Those setting up commercial displays can attain a license and sell their products all day while there is no such avenue for non-commercial displays such as free literature.

Steve Argue stated, This is a victory in defense of free speech rights. Limiting political tabling to one hour is an overbroad restriction on free speech that brings police scrutiny, intimidation, and enforcement in against a constitutionally protected activity. While the legal arguments used to overturn this law are not quite the same as why I deeply oppose it, those arguments had the desired outcome of overturning the law. Any further attempts by the City Council to pass new laws against free speech will be met with the same kind of opposition and civil disobedience.

This was not Steve Argues first legal victory against the Santa Cruz City government on constitutional grounds. In 1998 Argue was brutalized, arrested, and held in jail for four days for selling an alternative newspaper. In 2002 Federal Judge Ware ruled that this was not only a violation of constitutional rights, but that the way the City government was trying to defend itself shows that it is City policy to violate constitutional rights.

Steve Argue points out, The pattern here is clear. In this most recent case the Santa Cruz City government has paid the bill for prosecuting the case because the DAs office didnt want it. But above and beyond the cost to tax payers, democracy is undermined when the government sends out the police in attempts to silence critics. This is a victory for the free exchange of ideas in Santa Cruz, an essential element in the struggle against creeping tyranny.


******
Unconstitutional Law:

5.43.020 (Non-Commercial Use of City Streets and Sidewalks for Sales and Solicitation)

(2) No person shall allow a display device to remain in the same location on the sidewalk for a period of time exceeding one hour. After one hour the person who placed the display device on the sidewalk shall not place a display device on the sidewalk within 100 feet of the original display device location. After one hour the person who placed the display device shall not place a display device in the original display device location, or within 100 feet of the original display device location, for twenty-four hours. (3) No person shall be cited under this section unless he or she has first been notified by a public officer or Downtown Host that he or she is in violation of the prohibition in this section, and thereafter continues the violation.
 
 


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Comments

Mixed Victory in Barton's Court

Congratulations to Steve and his attorney Tony Bole for the prospective victory overturning the "Move Along" sections of the non-commercial display ordinance. (A final ruling is due to be issued in early April; it's still not clear what rights people have in the interim and whether police will respect them)

The ruling--a pre-trial ruling--eliminated the need for a trial for Steve, since the charge is now defective based on a law that is expected to be declared unconstitutional.

Unfortunately in the same hearing, Barton found Mu the Flute Player guilty of playing in a "forbidden zone" with an open flute case to hold donations. Ths decision strangely ignored the same unconstitutional distinction between commercial and non-commercial speech which Barton found so compelling.

But the argument is actually the same. Just as you can't constitutionally allow commercial displays to have permits and be there all day, while denying that right to non-commercial displays (for which there is no permit process). Likewise, you can't allow commercial displays to set up within 10' of a building, as they always do during permitted fairs (and sometimes without permits) unless you also have a process that opens up those areas to non-commercial displays.

The 10' forbidden zones laws are actually the first section of MC 5.43.020--the second section is the one Steve cites above.

These two laws combined destroyed the Voluntary Street Performers Guidelines, which street performers are struggling to have reinstated.

Now, thanks to Steve and Tony Bole, the second part of the law has apparently been knocked out--at least until City Council meets to patch up their blank check to the police with some kind of "permit" for non-commercial displays.

I encourage anyone who's told to either "Move Along" or not have a display device within 10' of a building to point out to the complaining officer that the current law is unconstitutional and continue to use the public space.

It is true, however, that police may ignore this decision until it becomes final, and will probably ignore its implications on the "forbidden zones" provision. I also fear that City Council may do another one of Rotkin's
"emergency ordinance" corrections, by rushing in a quick "fix-up" job during an afternoon session.

Still, this is an unexpected and encouraging decision by Barton--who I have indeed termed "Barricuda" Barton for his smooth sleek friendly patter that is followed by a verdict in favor of police.

Before I change his moniker to something more positive, I want to understand why he ruled against Mu, the flautist.

Mu was harassed by Officer Bachtel repeatedly for playing close to a closed building (once to get out of the rain, and another time to get out of the wind, by his account).

It seems strange, since he held up Mu's decision to issue it a week later in the same court session where he indicated he'd be dismissing Argue's charges.

Perhaps it was because Mu didn't have a lawyer and didn't explicitly argue that the law was unconstitutional specifically on the commercial/non-commercial grounds.

I find it disappointing that Barton didn't follow through and apply the same arguments in the case of Mu that he found so persuasive in the Argue case.

I've suggested to Mu that he try to get Tony Bole to put forward those arguments in some sort of appeal. It's a sad sign of our petrified and privileged times that you have to get an attorney in court to get a judge to listen.

Still, a final salute to Bole for his hard work on the case and Argue for not only taking two busts, but coming back to court again and again.

Now it's up to us in the community to see the police and the hosts obey the Constitution.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Robert this is not a “prospective victory� or “mixed victory�, it is a full victory that overturned the law in question as unconstitutional. In addition it was a final ruling, the April 2nd court date is only for Judge Barton to present his ruling that he made today orally in writing. Likewise Robert is wrong when he states that the law is, “Expected to be declared unconstitutional.� No, it already has been declared unconstitutional.

Robert, you seem to recognize this later in your writing when you state, “Still, this is an unexpected and encouraging decision by Barton.�

Next question

Robert you also state, �Unfortunately in the same hearing, Barton found Mu the Flute Player guilty.� I am insulted by this untrue statement. It makes it look like I ignored a co-defendants plight. Mu’s case, and hearing, was entirely separate from mine. I did not see its outcome because my hearing was finished and I had to rush to school before the court got to his.

I fully support Mu’s case, but your attempt to lump the two together to paint a defeat out of a victory, along side your refusal to recognize that a positive ruling has been made for free speech, I find this behavior strange.

I will talk to Mu about Tony Bole and give Mu his contact information if he is interested.

Robert, it is as if you expected complete and total justice from now until eternity, or at least for the rest of the morning, in Judge Barton’s court for this ruling to have any meaning. Likewise you expect the worst from the City Council “patching up� the law with no optimism about what kinds of other pressures the City government will be under from the public, and the courts, to prevent them from carrying out more violations of free speech rights.

Whatever arguments were used in court, the fact that much of the public supports free speech was a fundamental factor in this outcome. Likewise this will be important in deciding what the City Council does.

Your attempts to paint a defeat in the face of a victory are an unfortunate error. Again I thank you for your support.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Congrats to Steve Argue and his attorney, Tony Bole for a successful challenging of the "move-along" law passed a year ago by the Santa Cruz City Council on the impetus of Councilmembers Cynthia Matthews and Ed Porter.

HUFF and others felt this law was unconstitutional on its face. The government has no authority to limit or forbid freedom of speech, freedom of assembly, freedom to redress government grievances and freedom of the press absent a compelling health or safety issue.

A political table that is not blocking a sidewalk or otherwise causing harm for one hour does not suddenly become a hazard after 61 minutes. But the Santa Cruz City Council has proven it is eager to bend to the whims of downtown merchants who want only to commercialize Pacific Ave. and to limit or curtail completely non-commercial activities near their stores.

Thanks also to Matthew Hartough, who also was physically arrested on July 6th in solidarity with Steve Argue and to oppose this blatantly unconstitutional law. Matthew's arrest was the last arrest the SCPD attempted, so despite no change in the law until now, citizen opposition has had a positive deterrent effect.

Thanks also to Robert Norse for his diligence in bringing forth these issues and for his reporting as honestly and thoroughly on this issue and on many others that affect free speech issues.

I hope Mu appeals the decision Barton gave him.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Steve, congrats on the big win.

"History will have to record that the greatest tragedy of this period of social transition was not the strident clamor of the bad people, but the appalling silence of the good people."
-- Martin Luther King, Jr.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Congratulations Steve.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Congratulations, Steve. You have won a victory for all of us even if the reasons for the ruling were not ideal.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Congratulations, steve. You have one very good
attorney. Watch for the City Council to require a
permit for non-commercial tabling, much the same as a permit is required for a march or protest.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Thanks Maureen,

Now that the March 2nd election is over, and we both sit on the Peace and Freedom Party Central Committee, perhaps we can begin to move forward together in building our common party.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

It is important to remember who on the City Council passed this law:

For: Emily Reilly, Ed Porter, Mark Primack, Tim Fitzemaurice, and Scott Kennedy

Against: Keith Sugar, and Christopher Krohn

At the time the law was being passed I told the City Council that the law was an unconstitutional violation of free speech and that I would defy it and overturn it.
 

Council Unanimously Passed Move-Along Law

Steve is thinking of the vote on the 14' forbidden zones, the new crime of "unattended property", and criminalizing hackeysacking, bubbleblowing, and ballplaying--all of which happened in the summer of 2002. It was at that time that Reilly and Porter rushed thru merchant-pleasing expansions of the Downtown Ordinances, though the main public complaint at their public hearings was "police harassment", which was unaddressed. The Council subsequently took care of that by eliminating the weak but struggling Citizens Police Review Board.

The Move Along law (and the finalized 10' forbidden zones for display devices) was passed in January 2003 unanimously by City Council. That Council included Kennedy, Rotkin, Mathews, Fitzmaurice, Primack, Reilly, and Porter. (The same bunch that sits there now.)

7 guilty as charged.
 

Re: Santa Cruz Law Limiting Free Speech Ruled Unconstitutional

Thanks Robert, you're right, I got the two votes on the very similar laws mixed up.
 

Life Unbounded: The Heart of Santa Cruz

Freedom of speech and creativity on Pacific Avenue is the very heart of Santa Cruz. It is one of the things that makes this town so special, even famous! It used to be SO fun to go downtown and experience the amazing color, music, and full expression that was everywhere.

If the resistance had a puple heart award, Steve would get one for his actions here.

Truly it has been very saddening to see the Palo-Alteration of our beatiful town over the last several years. It may be a sign of the incroaching right wing fear vibe that this administration has tried to pour over this country.
Though Santa Cruz has never been one to fall into line with "conservative" trends, sometimes it very much looks that way. If you could see a film clip of what downtown Santa Cruz looked like year by year over the last 15 years, it would be quite interesting. At the rate we are going it WOULD look like downtown Palo Alto in a short 2-3 years from now!!!
Enter Steve Argue, Robert Norse, Becky Johnson, and the many many others who are NOT willing to succomb to the numbing of America.

Steve, this is a MAJOR full on victory, and as a scorpio I can't help relishing in the "sweet revenge" feeling that those council members and mayors who voted for such unprecidented, reactionary legislation, even while posing as being "anti war" or whatever, get their proper exposure.

The question is: how can we take this momentum and move it forward to PUSH BACK on the forces of repression, and FULLY REOCCUPY the Pacific Garden Mall???

Possible angle: It will be GREAT for the economy, because people LOVE to see a thriving healthy, creative, alternative community, as long as it's safe, respectful, and positive.

Where is the next battle?

ps. Special thanks to the musicians, political and environmental activists, tarot readers, jugglers, bubble blowers, hackey sack players, artists, poets, lovers, kids, and all who share their life, love and creativity downtown. Come out come out wherever you are! As quickly as life downtown has dissapeared, it can reappear!! All it takes is everyone showing up!!! :)

Keep the Vibe Alive
 

Story for April Street Spirit newspaper

"What if." Councilmember Cynthia Mathews mused, "a musician decided to play the same
song again and again outside of someone's store?" Her offhand comment occurred during
discussion in December of 2002 of a vast new array of downtown ordinances all
addressing "behaviors" and, of course, not status of those on Pacific Ave. But somehow
it's always the poor and homeless whose behavior earns a citation. No one had testified
that the repetitive singing song syndrome had ever happened.

Even the voluminous chronology of Pacific Trading Company complaints compiled by
merchant Anandi Heinrich by arrangement with Redevelopment Agency analyst Julie
Hendee made no mention of someone playing the same song over and over. But in January
of 2003, the council passed the "Move-along" law, championed by Councilmembers
Porter, Mathews, and Rotkin [See Street Spirit 3-03 Santa Cruz Liberals Back Police
Against the Homeless"].

Under the new law, MC 5.43.020(2) a musician with an open guitar case (with or without
a sign "donations wanted"), a homeless person with a handkerchief on the sidewalk
seeking spare change, or an activist at a table registering voters--all could stay in any one
location no more than one hour. After an hour, they must move at least 100' and not
return for 24 hours with the same "display device". Other provisions of the Downtown
Ordinances (directed against the homeless, but sweeping up street performers and political
tablers in their need to be "content-neutral") made 80% of even the broadest sidewalks on
Pacific Avenue illegal for traditional street performers, needy panhandlers, or political
tablers.

Loitering laws have largely been struck down, as the courts have ruled, you can't be
arrested for doing nothing. What loitering laws still exist, have to be coupled with a real
crime such as casing a bank prior to a robbery or Berkeley's 1994 "loitering with intent to
sell drugs" ordinance. Still, cities can't help but think, plot , plan, and hope for new
ordinances that can remove the people they want to remove and yet feel free and user
friendly for the right kind of people.

In late June, Santa Cruz police officers attempted to cite Steve Argue when he refused to
move his "display device" a literature table after only one hour's time from in front of
Heinrich's business. He was arrested briefly as a result. Later on July 6th, he again set up
his display table in front of Heinrich's business, and while distributing literature urging
passersby to boycott Heinrich's business, he was again arrested for refusing to move his
"table" along after one hour's time by the SCPD. Since his card table had been confiscated
by the police, his display device was an ironing board with a huge "Repeal the Downtown
Ordinances" sign on it. Heinrich was one of the most vocal supporters of the ordinances.

As the police were driving Argue away for the second time, HUFF worker Matthew
Hartogh, set up a tiny wooden table with a few flyers on it. An hour later, he too was
taken off to jail in handcuffs. But Hartogh went limp and this time it took four cops to
drag him to the back of a waiting police car only 12 feet away.

JUDGE BARTON DECLARES THE MOVE-ALONG LAW UNCONSTITUTIONAL

In court, Hartough's four charges of failing to move-along after one hour, resisting arrest,
giving a false name (Hartough gave no name at all), and lying down on the sidewalk (yes,
that's illegal too!) were never filed and the charges disappeared.

Argue's charges, should have resulted in a misdemeanor prosecution, since the two
infraction charges occurred within 6 months of each other. The City attorney used a new
provision of the Municipal Code to lower the charges to infractions, without Argue's
permission as required by the state penal code. This denied Argue the option of a trial by
jury and the right to a public defender. If charged as a misdemeanor, convictions can
result in being jailed for up to 6 months and ordered to pay a fine of up to $1000. DA Bob
Lee, opted to not prosecute. Hence, the prosecution fell back on Deputy City Attorney
Wendy Morgan.

Pro bono attorney, Tony Bole, represented Steve Argue, and in a pre-trial motion, moved
to have the charges struck by arguing the law is unconstitutional because it discriminates
against non-commercial speech. Apparently Bole found that merchants can easily acquire
permits to place commercial display devices in front of their stores all day long, but a
non-commercial display device, like Argue's political table, could not. Superior Court
Judge Michael Barton ruled in court on March 19th, that the law is unconstitutional as a
result. He indicated he would put his ruling in writing at an April 2nd hearing at the
Morgan's request.

Speaking shortly after the hearing, Argue stated, "This is a victory in defense of free
speech rights. Limiting political tabling to one hour is an overbroad restriction on free
speech that brings police scrutiny, intimidation, and enforcement against a constitutionally
protected activity. While the legal arguments used to overturn this law are not quite the
same as why I deeply oppose it, those arguments had the desired outcome of overturning
the law. Any further attempts by the City Council to pass new laws against free speech
will be met with the same kind of opposition and civil disobedience.

CITY OF SANTA CRUZ CONTINUES ITS WAR ON THE POOR

Earlier this year, Mike True, a street musician was awarded a settlement of $15,000 for his
arrest for having his guitar case open on the sidewalk with copies of his own music on
CD's in the case within view. True said that "To rule otherwise would mean we don't have
the right to show our artwork to the light of day unless we get a permit. That means we
have no free speech rights at all." Since True opted to settle, the law he was arrested
under is still on the books and could conceivably be used against a less informed musician.

But the City of Santa Cruz, despite its desperate cries of shrinking revenues and a recent
rise in the sales tax to meet those costs, has continued with dozens of arrests and
prosecutions for behaviors that strain the imagination to be considered criminal acts.

For example, street flutist, Mu, was cited twice, for playing within ten feet of a building
with an open flute case [open to solicit donations]. Jason Paschal was cited for tarot card
reading without a permit, and the author of this article was cited twice and arrested once
for using sidewalk chalk on a public sidewalk.

HUFF activist and Street Spirit writer Robert Norse has been convicted twice of
"jaywalking." He goes to trial in early April for playing a video documenting police
harassment on the public sidewalk without a $33 amplified sound permit. He faces a fine
of over $300 if convicted.

What will they arrest people for next month? Well, last year they outlawed
bubble-blowing, frisbee toss, hacky-sacking, bouncing any kind of ball, and even outlawed
tossing your car keys to your wife. The City is shameless in what they will charge people
with and serious about prosecuting them. After all, it's all done with our money. But while
the City and its Redevelopment Agency continue to work overtime to find new ways to
harass and drive out the poor and homeless away from downtown stores, street musicians
and activists formed a new organization--SAFE
[Society for Arts and Free Expression].

For the past eight Wednesday nights from 6 to 9 PM, the street musicians have been
meeting-- at the corner of Lincoln and Pacific Ave. playing music, with a political table,
and free food to anyone who wants it. Though spending more than one hour at any one
spot has been clearly illegal under the Move-Along law, police have studiously avoided
them. Said Joe Williams, one the SAFE organizers, "Sometimes you just have to take back
the sidewalks by going ahead and using them."
 

Street Spirit Story Addendum

The story on Steve Argue and the Move-Along law, written for the April edition of Street Spirit (available from Becky Johnson at 429-8529) was actually written by her, not by me. I made a few additions.

A reminder: Argue goes to court for what will probably be a final ruling Friday April 2nd at 8:30 AM in Dept. 2. The more there the merrier.
 

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