Judge Fred Biery’s June 30 order dismissing the First Amendment lawsuit against the City’s Parade Ordinance is a marvel of economy. In two-and-a-half double-spaced pages he sweeps aside reams of evidence suggesting that the City discourages free speech and assembly with arbitrary expenses, favoritism, and laughable march “alternatives” for groups that can’t afford thousands of dollars in barricades and police officers. The plaintiffs didn’t present “disputed facts” that could affect the suit’s outcome, said Biery, before deferring, without elaboration, to the City’s “arguments and authorities.”
Biery’s ruling capped round one in San Antonio Free Speech Coalition et al. v. City of San Antonio, but the fight’s far from over. By July 29, the plaintiffs will file an appeal at the Fifth Circuit, where they will again present evidence showing that the police officers responsible for approving and pricing parade permits have a history of overcharging some applicants for traffic control and giving prohibitively high estimates to controversial groups. Just two examples: $25,000 apiece for a 2002 anti-war march and a 2004 procession calling attention to Kelly’s Toxic Triangle, both deterred by the potential expense.
The City’s current ordinance — passed in ’07 and amended in ’08 — fails to guarantee this suppression of First Amendment activity won’t continue, say the plaintiffs, and although the Judge noted that they can file suit again if the City improperly applies the new rules, lead attorney Amy Kastely was dismayed by Biery’s failure to explain why he thinks the law is constitutional.
“I was extremely disappointed that the judge chose to dismiss our challenge to the policies without any explanation or discussion of any of the constitutional issues,” said Kastely, still audibly stunned the day after the ruling. “We don’t have a system of raw power where someone can make decisions that affect people’s fundamental rights without the obligation to explain.”
And the issue takes some explaining. Since the City’s police force first proposed new rules for public demonstrations — inspired by the large 2006 immigration-rights protests `see “I love a charade,” January 16, 2008` — Free Speech Coalition members have spent countless foot hours knocking on doors and handing out bumper stickers and yard signs that read: Our streets will not be silenced! / ¡Las Calles no se callan! The real battleground as the plaintiffs see it is public space and the government’s increasing claims to it.
Perhaps the most significant change in the new ordinance was the decision to officially charge what the City had previously called “political” events for costs associated with security, in particular on-duty police officers. A federal judge agreed with the plaintiffs last year that the first draft allowed the police too much discretion in assessing those fees and the Council subsequently struck the “security” language. But Kastely says the revamped ordinance and the SAPD procedures designed to implement it are still dangerously vague.
The plaintiffs aren’t just challenging the method for assessing costs, but the costs themselves, starting with the on-duty police officers.
“Police services are part of the normal services available to citizens, and among the various services police provide are traffic-control services,” says Kastely. “There’s no reason to charge that particular activity for an on-duty officer when no other activity is charged.
“The irony is that the only citizens charged extra are citizens who are exercising their First Amendment rights.”
The City doesn’t appear to be relying on the fees to recoup costs. Although former District 5 Councilwoman Patti Radle told the Current in 2008 that $70,000 in unexpected expenses from a large immigration rally was an impetus for the new ordinance, when the Request for Council Action came before City Hall in 2007, the official estimated financial impact on the city was nil.
Although the City picks up the first $3,000 in expenses for First Amendment gatherings under the new ordinance, official parades are still an unaffordable luxury for most grassroots organizations. The International Women’s Day March Planning Committee, a lead plaintiff in the suit, has been given march estimates ranging from $5,000-$7,000, which would leave the grassroots group with an insurmountable $2,000-$4,000 tab, even with the City’s “donation.”
The ordinance also provides that the City subsidizes all or most of the march expenses for the MLK Day, Veterans Day, and Diez y Seis parades, which Kastely says in effect means the government is favoring one message over another. The City is claiming its right to government speech, says Kastely, but that argument ignores a recent Supreme Court ruling that distinguishes between “fixed speech,” such as a statue on public property, which is theoretically OK because the viewer can parse that it’s a government-supported message, and “transitory speech,” like a march, which an observer might not realize is government-sponsored.
The plaintiffs also question whether the City should be determining which marches are protected by the First Amendment. Since the new ordinance was enacted, the City Attorney’s office has been asked to determine whether at least two applicants fall into the First Amendment category. “Our position is that all processions, parades, and marches are First Amendment processions,” Kastely told the Current in January. “What is especially problematic is for City officials to be empowered by the ordinance to tell someone their procession is or is not protected by the First Amendment.”
Mayor Julián Castro was between council seats when the new ordinance was passed and amended (the former District 7 councilman was defeated in the 2005 mayoral race by his predecessor, Phil Hardberger), and he admits that he’s new to the details of the suit. But he says he will keep a campaign promise to sit down with constituents and the City Attorney’s office to revisit the ordinance.
“My goal is to make it affordable for citizens to exercise their First Amendment rights,” Castro said. He’s not willing to concede that the City should never charge for on-duty officers, for instance, but he added, “I think we should work toward a system where the amount is predictable and it’s not expensive.”
Nor is Castro a fan of the provision that gives some parades a free ride, while other marchers must pay. “I don’t think that we should single out some marches as more valuable than others,” said the Mayor.
While the current Parade Ordinance is more costly and restrictive than the City’s prior attempts at controlling who uses the streets and how, during pre-trial discovery the plaintiffs uncovered a pattern of City officials and officers handing out favors to friends and influential groups for years — sometimes not even asking for a permit, as required by law — and assessing charges based on what is charitably described as arbitrary reasoning. In an affidavit that is part of the court record, Gloria Ramirez recounted numerous instances of similarly sized events that were charged significantly different amounts. In October 2006, testified Ramirez, two almost identical marches were estimated at $9,100 and $3,300. The difference? The second application had a note: “Per Chief McManus conversation with Captain Palonis on 10/12/2006 assist this event with resources.”
The new ordinance neither mentions nor specifically addresses this pattern, say the plaintiffs, which means there’s no reason to believe that things have changed.
“Essentially all you have is the City saying it’s going to be a new day,” Kastely says. She argues that the testimony of officers responsible for processing permits indicate that the officers don’t recognize a substantial change in operating procedure.
If San Antonio’s everyday residents are oppressed by the price of free speech in the Cradle of Liberty, woe to our less-monied citizens. The City’s official solution for so-called “indigent” marchers who can’t afford a couple grand in fees: Use the sidewalks — a recommendation that runs afoul of existing state law prohibiting blocking of sidewalks and with the hard facts on the ground.
“If you’re a person with a disability, that’s pretty much saying you can’t march many places,” says Jim Lawson, a wheelchair-bound retired mine engineer with MS who moved to San Antonio a couple of years ago to be near family. Thanks to Lawson’s activism, the Federal Highway Administration poked its nose into our asphalt, and announced this June that the City is not in compliance with the Americans with Disabilities Act. Many sidewalks lack curb cuts, ramps, and accessible crosswalk buttons, said the FHWA, but most critically, COSA must develop a transtion plan that details how it will meet the ADA’s guidelines.
Lawson allows that San Antonio’s accessibility is no worse than other cities he’s lived in, but his assessment of our streets is still damning. “I have found the sidewalks just totally unacceptable,” Lawson says, before launching into a litany of obstacles: utility poles and guy-wires placed in pathways, cracked and uneven cement, driveways without sidewalk curb cuts.
Lawson’s experience echoes the City’s own findings in its 2008 Citywide Pedestrian Infrastructure Health report, included in the court filings, which catalogued 400 miles of sidewalk gaps citywide, and more than 1,000 “tripping hazards” downtown alone.
“I see the ADA as a civil-rights law that allows people to continue their lives,” says Lawson. He could organize a march to protest the city’s history of ADA non-compliance, but he’ll have to sign on for any parade expenses above $3,000.
Castro concedes that accessibility is another fair criticism of the current Parade Ordinance. “The City has been spending resources” to address the issue, he says, “but we’re nowhere near where we need to be.”
Castro says he’ll meet with the plaintiffs and City staff sometime in late July or early August, but in the meantime, he expects the lawsuit to proceed. “I don’t want to interfere with the legal process,” Castro said. “I also don’t want to give them the sense that there’s some deal, and they miss their `filing` deadline.”
A call to Assistant City Attorney Debi Klein regarding Biery’s ruling was not returned.