Free Speech in the Park - Gathright v. City of Portland

A unanimous Ninth Circuit Panel (Fisher, Gould, Bea) has affirmed an injunction issued by District Judge Ancer Haggerty, barring the City of Portland from enforcing an ordinance that permits ejection of disagreeable hecklers from events held in public areas under City-issued permits in public places.

The plaintiff, Edward Gathright, attended events in Pioneer Courthouse Square and Tom McCall Waterfront Park that were sponsored by abortion rights and gay rights advocacy groups.  The groups had obtained permits from the City to stage the events.   A Portland city ordinance (City Code 20.08.060) makes it "unlawful for any person unreasonably to interfere with a permittee's use of a Park," and Gathright was ejected from the permittees' events for disrupting them by variously calling abortion rights supporters "whores," "sluts," and "prostitutes," or wearing a t-shirt at a gay rights rally reading, "Got AIDS Yet?"

Gathright challenged his evictions on First Amendment grounds. The City defended its ordinance as a legitimate "time, place, or manner" regulation of protected speech.  The Ninth Circuit's opinion Here rejects the City's argument and invalidates the ordinance on its face, distinguishing the Supreme Court's seminal case for such regulation in city parks (Ward v. Rock Against Racism, 491 US 781) and the Supreme Court case most closely on point (Hurley v. Irish-American GLB Group of Boston, 515 US 557), and then concluding without much more discussion that the City's ordinance is not "narrowly tailored" enough to protect the permittees' interest in exercising their right to gather peaceably in city parks.

COMMENT:  It seems the Ninth Circuit panel could have given a more thorough analysis of the time, place, or manner regulation of the protected speech in this case.  The Supreme Court has held that time, place, or manner regulation is not a prior restraint (Frisby v. Schultz, 487 US 474, 481), meaning that the First Amendment is simply not implicated where the standard is met.  A more detailed inquiry into the City's reasons for enactment of its ordinance (did violent confrontations, intimidation of peaceful citizens, or damage to City property, prompt action by the City Council?) would have lent more weight to the Ninth Circuit's result.  Or it might have led to a different result.

The chance for greater publicity in a federal forum may explain Mr. Gathright's resort to the First Amendment, but one wonders why he didn't challenge the ordinance under the more speech-friendly Oregon Constitution, Article I section 8.  It's apparent from the recent City of Nyssa v. Dufloth, 339 Or 330, 338-339 that "time, place, or manner" regulation of speech is as unconstitutional in Oregon as naked (sorry) prohibition of the speech itself.

If the City of Portland decides to take this case up on certiorari, it should be interesting to watch the Supreme Court's response.  Would anyone like to handicap the chances of a grant of cert?  Of still another reversal of a "liberal" Ninth Circuit decision?

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