These pivotal discussions, acted out live in a 40 minute oral argument in front of a three judge panel, sought to determine whether to remand back to district court the lawsuit alleging the City violated San Antonians' First and 14th amendment rights by charging would-be parade holders for the use of public streets. To the plaintiffs, the argument is a Dickensian classic about the rich and powerful maneuvering the levers of government at the expense of the poor and weak. To the defendants, it's an unsubstantiated yarn meant to further the unrealistic goal of allowing unfettered parading and demonstrating on the City's strained tab. Either way, don't be surprised if there's a few more pages left before the conclusion.
The International Women's Day and Coalition supporters arrived in New Orleans the Sunday prior to oral arguments via a cushy charter bus, ostensibly to drum up community support for their plight. That wasn't too difficult since among the wounds plaguing post-Katrina New Orleans was a surprising leap in "escort fees" charged by New Orleans Police Department to that city's beloved Second Line processions. Between 2005 and 2006, the police presence fees assessed to these public parades shot up from $1,200 to $3,790, claimed the ultimately successful ACLU lawsuit brought against the City of New Orleans in late 2006. Three years ago, almost to the day of this oral argument, a federal judge found in favor of the ACLU, and reduced the fee to just above its 2005 level. "That's a parallel," said Wendy O'Neill, a New Orleans resident and social justice activist with the Safe Streets, Strong Communities. O'Neill's organization and several others joined with the International Women's Day March for a community talk and press conference.
With that morale boost, attorney Amy Kastely, a St. Mary's University Law professor recruited by the plaintiffs, made her first presentation before the Fifth Circuit Court of Appeals. Devoted court watchers noted that the plaintiffs scored a coup with Clinton-appointee Judge Fortunato Benavides leading the panel, who has previously opined in favor of the little guy in well-known cases Texas Democratic Party v. Benkiser and Burdine v. Johnson. Indeed, the Hidalgo County native further excited the plaintiffs, represented not only by Kastely but also at least 25 well-wishers from San Antonio and New Orleans in the audience, by honing in on one of their least favorite characters, Judge Fred Biery. As close readers will remember, San Antonio district judge Biery dissolved the preliminary injunction halting the City's ordinance and new fees, originally put in place by Judge Xavier Rodriguez, who later recused himself. Biery also granted the City's motion for summary judgment, effectively throwing out the International Women's Day March's lawsuit. On March 31, 2009, Biery wrote of the preliminary injunction, "the Court has thoroughly reviewed the record before it and finds the constitutional defects that lead to the issuance of the preliminary injunction in this case no longer exist," on the basis that the City had amended its original parade ordinance to attempt to check the discretion given to the San Antonio Police Department regarding how much to charge parade and demonstration organizers for traffic control and clean-up costs. On June 30, 2009, in a scant three pages, Biery dismissed the lawsuit entirely, with a jaunty "plaintiffs are advised to apply for permits early in order to avoid last minute egg beater pleadings." In both, he referred extensively to Rodriguez's initial grant of the injunction and the City's remedial efforts, but stopped short of addressing the original complaint.
Were Biery's orders conclusive enough to drop the Free Speech issues at hand? That's what Benavides wondered: "We don't have an opinion from the district judge," said Benavides, baffled. "We have kind of an interesting order where `Biery` grants the summary judgment based on the arguments that were presented before him. Does that mean that he's found all the arguments that the city made persuasive?" A summary judgment can only be issued if the judge determines there is no "genuine issue of material fact," according to the federal rules of civil procedure. Benavides and his fellow panel judges, Leslie Southwick, appointed by George W. Bush, and Carl Stewart, another of the three Clinton appointees to that court, seemed skeptical Biery's motion satisfied that requirement. "It might have been burdensome for both sides to defend or attack a judgment that I'm not too sure why it occurred," said Benavides before also pondering how one can use an order granting a preliminary injunction to justify a motion dissolving the injunction.
Should the case get remanded based on this procedural gripe alone, the City may find itself defending the government speech argument that has been its primary reasoning behind why waiving fees for popular events the Martin Luther King Day March, Dies y Seiz parade and Veteran's Day parade, but implementing them for most other "first amendment events," is not content-based discrimination. The City's argument, consistently and succinctly put forth by City attorney Deborah Klein, claims that a government entity can "engage in and support speech of its own without triggering a requirement to fund other speech." However, all three of the panel judges questioned the appropriateness of applying that reasoning to events which are only supported by the City insofar as it waives parade fees. "Those three events have cultural and historical significance to us, that is clearly governmet speech," said Klein. "It's a government-approved parade, but how is that actual speech?" asked Benavides, noting that generally government speech cases involve a measure of government control. "You may support the idea, but you're not controlling that message. You have a whole bunch of voices in that. You don't control the signs they can wave, there's not a common slogan that the City tells them how to do," Benavides said, with Southwick and Stewart echoing his line of questions.
That doesn't mean the writing is on the wall for the parade ordinance, however. When Benavides abruptly asked Klein, "Let's assume this court has a dim view of the government speech argument, how do you defend this case notwithstanding that?" Klein delivered her zinger: "there's no evidence of an event being barred." It's true, there's not a case of a group applying for a parade permit and being rejected, partially because the injunction motion to hold up the ordinance was filed just a day after the ordinance was crafted. Klein also maintains that the changes the injunction order originally recommended helped the City to develop a standard operating procedure encouraging the police department to work with event holders in getting their fees down to a manageable sum and refraining from invoicing an organizing group until after their event is held. After the oral arguments, responding to a question from a La Voz de Esperanza reporter, Klein even seemed to suggest there would be no punitive action if a parade ordinance fee was never paid. "A speech event can occur and not a dime be paid," Klein told the panel judges. Marisa Gonzalez, a longtime participant in the International Women's Day March, remained skeptical. First, she says, their marching route is chosen based on what they believe will be the most visible to pedestrians, so alternative, cheaper routes may not achieve that goal, as she claimed the alternatives presented to 2010's International Women's Day planning committee did not (they wanted to march the wrong way down a one-way street, requiring more police traffic control). Secondly, if it's not totally necessary to pay for a parade ordinance, why charge at all? "Putting a price on something, that essentially tells me that it is not free," she said.
At this point, QueQue can see both sides of the argument and expect to hear more of them, if not at district court, then through a Supreme Court appeal. Naturally, we dislike chilling effects, but what the First Amendment guarantees is speech that's free as in freedom, not free as in no-cost. Just think what would happen with the Second Amendment if the no-cost logic was applied.