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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2nd Congressional District Humboldt County Field Organizers

2nd California Congressional District Humboldt County Field Organizers outside of the Humboldt County Democratic Central Committee annual Chicken By the Sea dinner on June 3rd 2012

Left to right,
Shane Brinton
for Norm Solomon
Conrad Gregory
for Jared Huffman
Sofia Pereira
for Stacy Lawson
Richard Salzman
for Susan Adams


Election results