There are those in San Antonio who still revere the youthful Emma Tenayuca, the firebrand champion of Mexican-American laborers who helped ignite the infamous 1938 strike against Southern Pecan Shelling Company.
And there are those who would just as quickly see any repeat of her laborer-loving antics dealt with through the stealth and finality of a Predator drone attack.
Fortunately, our early Federalists (in a successful attempt to woo state governments beneath a central authority) offered up a slew of Constitutional addenda, the most popular of which supposes to protect our right to say what we want and even say it with street-clogging feet. Still, Freedom of Assembly never achieved the same glamour as some of the First Amendment’s other guarantees. Last year, the First Amendment Center asked a thousand Americans about this most famous portion of the Bill of Rights. While 56 percent of those surveyed knew “freedom of speech,” a lowly 14 percent named “freedom of assembly” as a First Amendment protection.
So, it’s almost understandable that San Antonio’s leaders forgot about it, too, when they rewrote their questionable parade ordinance in 2007.
Local attorney Amy Kastely, who’s suing the City in federal court on behalf of a range of local non-profit organizations including the International Women’s Day March, said that when the City adopted its new Parade Ordinance in late 2007, a San Antonio Police Department representative told the Council: “Frankly, issues about the First Amendment weren’t on our radar.”
U.S. District Judge Xavier Rodriguez found several aspects of the City’s policy unconstitutional and granted the plaintiff’s original motion for a preliminary injunction.
It’s certainly not a problem that San Antonio alone wrestles with, but a good rule of thumb is to craft so-called parade ordinances so they treat all groups equally, said David L. Hudson Jr., First Amendment scholar with the First Amendment Center.
“From a Constitutional perspective, it’s better to apply rules across the board rather than to sort of selectively apply them and charge unpopular groups more than other groups,” Hudson said. “That’s where you get in trouble, because it raises the specter of viewpoint discrimination, and that’s sort of the most fundamental of all First Amendment principles — that the government won’t discriminate based on viewpoint.”
Still, it is common for cities to sponsor some events — like a Fourth of July celebration, for instance — while charging others fees to gather.
In San Antonio, the Free Speech Coalition and Women’s Day marchers complained that the SAPD had been given too much leeway to determine how much to charge for marches and demonstrations. Their complaint alleged that by requiring organizers to assume the cost of police protection and traffic controls, the city was pricing many citizens out of the freedom of assembly. The “indigent” option: March on our famously cracked and fissured sidewalks.
Judge Rodriquez cited the police’s overly broad discretion when he sent the City back to the drawing board. Then he excused himself from the case citing a conflict of interest (a family friend was serving on the City’s defense). Now, all eyes are watching to see if U.S. District Judge Fred Biery — who lifted the injunction on the revamped ordinance earlier this year — will grant the City’s pending motion for dismissal or take the case to trial.*
Plaintiffs argue that the ordinance, even as amended, still grants the Police Department too much latitude and charges marchers too much money. Kastely cites cities such as New York (where there’s no charge to march, but a $45 bullhorn permit) and Houston (where the first 15 blocks are on the house), as examples of large metropoli that hew more closely to the Constitution’s intent.
“The leading Supreme Court cases are very eloquent about the fact that parks and the streets … `are` first in priority. It’s really the place people gather and engage in democracy,” Kastely said.
People tend to downplay the importance of First Amendment rights until they need them, she added.
“As long as things are going OK for us, we don’t miss it. But more and more, whether you’re a union member or concerned community member or a parent around schools, as people find the need to gather and join with other people, they recognize there really aren’t spaces available for that. Not many of us can have 50 people in our homes.”
For that reason, until Biery makes his move, expect Kastely and the Free Speech Coalition to keep asking a question they already know the answer to — “Whose streets?”