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Parading in the Big Easy

Last month, the San Antonio Free Speech Coalition learned oral arguments in their case against the city and its revised parade ordinance would be heard by the U.S. Fifth Circuit Court of Appeals, located in New Orleans. I squeezed into the group's serious meeting on April Fool's Day to see how the exhaustively active group would handle the April 27 one-hour-plus hearing. It couldn't have been a better meeting for a neophyte like me to get briefed (albeit one-sidedly) on the history of the contentious parade ordinance and its implications for free speech.

The Esperanza Peace and Justice Center, the primary soldiers in this particular battle, hosted the event and provided the bulk of the 30 or so attendees. Others included the proud octogenarian member of the Communist Party to my left and his friend, Susan Ives, the leader of the local Peace Center to my right. Amy Kastely, the lead attorney for the Free Speech Coalition, launched into her clients' grievances with a Star Wars-like beginning: "The long saga of this challenge that we're bringing begins many years ago ... "

The updated, quick-and-dirty version is as follows: The City of San Antonio has long charged fees for parades and assemblies held on its streets and requiring some sort of traffic blockage, police presence and clean-up. Kastely and the Free Speech Coalition claimed that after massive immigration rights marches in 2006, a new parade ordinance quickly appeared applying a different fee schedule for First Amendment and non-First Amendment events. And who decides what event constitutes "First Amendment" and thus lowered fees? Why, the San Antonio Police Department, of course. Law enforcement has an awesome record with those sorts of determinations. Moreover, some proven, popular events like the Diez y Seis Parade and the Martin Luther King Day March would be exempted. Giving the police the broad power to decide who marches, revels or protests and how much they should pay seemed a tad unconstitutional to U.S. District Judge Xavier Rodriguez, who issued an injunction halting enforcement of the ordinance on February 21, 2008.

Judge Rodriguez insisted the City meet several requirements limiting the chief of police's discretion, distinguishing between traffic-control costs and the more nebulous security costs, and no longer exempting funeral processions and government agencies from paying for their pain-in-the-ass, traffic-stopping details. The City Attorney's Office even seemed pleased with the outcome, saying they could institute some "pretty easy fixes," as Michael Bernard put it in a February 22, 2008, phone conversation with the Current.

And they did, to a degree. The chief of police still determines what is a "First Amendment" event and what isn't. However, the new ordinance requires the chief to consider several specifics in determining the amount of traffic control needed, making fees more transparent. They also don't exempt funeral processions or VIP motorcades. Is that enough to pass Constitutional muster?

Judge Fred Biery, who took over the case after Judge Rodriguez recused himself, thinks so. He both lifted the injunction and granted the City summary judgment, advising, in his folksy way, that the plaintiffs "apply for permits early to avoid last-minute egg beater pleadings," in his motion granting the summary judgment.

But Kastely and the Free Speech Coalition aren't satisfied. To the group, the cost of a parade permit is still unreasonably high, especially the $2 million insurance policy the City strongly suggests, and its alternative for cash-strapped marches, a non-obstructing march on San Antonio's cracked, curbed and narrow sidewalks, is laughable. They appealed the summary judgment motion, and the case was recently chosen as one on which the Fifth Circuit Court of Appeals hears an oral argument. Decisions at this level can set binding precedents. Even though the court is, according to Kastely, very right wing and very Republican presently, "so much of the Civil Rights movement happened there. They are bound by some decisions made during that period," and some of those relate directly to public protests.

Assistant City Attorney Debi Klein says parade ordinances vary nationwide, with some cities enforcing much more stringent permit requirements than San Antonio.

“We've given every opportunity to allow people to have those `First Amendment` events at no cost,” Klein said, pointing out that the City picks up the first $3,000, and will make arrangements for expenses above that amount in some cases. She also notes that applicants can indicate whether they believe their event qualifies for First Amendment status when they apply for a permit, and the police department consults with the City Attorney's office. “We err on the side of caution and presume it's a First Amendment event.”

Klein said she expects the loser at the Fifth to appeal to the United States Supreme Court.

Many of the Esperanza Center's buena gente are excited to go to New Orleans in support of the case. For one, the city is a subject of Naomi Klein's The Shock Doctrine, which could be the book of the month at the Esperanza Center, given how many times it's been mentioned there lately. The book details the movement to privatize New Orleans' public schools and housing, which I suppose factors into the Free Speech Coalition's fear that steep permit fees for public demonstrations will only be feasible if financed privately. The coalition also wants to use the opportunity to join up with local groups like New Orleans' renowned Second Line brass band, who have lately faced major permit increases for performing at street funeral processions and public events. Though they've not yet finalized when they'll go or how they'll get there, the Free Speech Coalition is confident they will have more than adequate representation.

"When we've gone to court here in town, we've packed the place," said Graciela Sanchez of the Esperanza Center. She hopes they'll do the same at the Fifth Circuit Court of Appeals, even if it's just for an hour. We'll be there, if only to hear what the court has to say about that whole egg beater thing.

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