Apparently the instances reviewed by the Ninth Circuit where Gathright allegedly interfered with the speech rights of permittees who had obtained a permit for use of park space from the City of Portland all involved events that were free and open to the public. You can easily imagine Gathright or some other provocateur walking into one of these events, as anyone is permitted to do, and walking up to a Bush supporter at a Bush rally who is wearing a Bush button and saying "You ought to talk that pimp President into going quail hunting with "gunner" Dick Cheney every weekend, and have him take his Jezebel wife along too." You can then imagine that the Bush button wearer, an organizer of the event, orders the provocateur to leave the premises. The provocateur stands his ground, and a police officer is found to enforce the order and when the provocateur refuses to leave he is arrested and charged with a class C misdemeanor. Why? Because he "unreasonably interfered with the permittee's lawful use of the park space." Remember, he hasn't seized the microphone to give his own speech, he hasn't even made a speech without a microphone. All that he has done is have a conversation (well, ok, a one-sided conversation) with one person at the event. What he has said is no doubt offensive to the Bush button wearer, but it isn't obscene, it is not "fighting words" (I don't think it is really an invitation to a brawl). Actually, it is political speech of a sort, the kind of speech that is more highly valued than, for example, "indecent" speech.
Portland's ordinance "[i[t is unlawful for any person unreasonably to interfere with a permittee's use of a park" (PCC 20.08.060) is plainly overbroad and not narrowly tailored to restrict only that activity that would interfere with the speech rights of the permittees who have a permit to use the park space. Someone stepping inside the park space and saying "How about a light, Bub?" might be offensive to a permittee who would consider it an unreasonable interference with use of the park space, but it would hardly justify an arrest for a class C misdemeanor in the face of a First Amendment excercise of speech. Overinclusive or Overbroad legislation that sweeps in protected speech along with speech that may not be protected is a very different matter than Time, Place, and Manner restrictions. The former discriminates on the basis of content; the latter must be content neutral. Let's imagine a third situation.
The provocateur walks into the Bush event, walks up to the Bush button wearer and says "Bush is the best. Here is $100 for his re-election." Is the provocateur going to be asked to leave for his unreasonable behavior at the Bush event? Of course, not. The ordinance is not content-neutral regulation of Time, Place, and Manner. It is overbroad and facially invalid because of its ripe capacity for content discrimination. And, it is also overbroad and content discriminatory in its application.
Apparently Portland has now changed its ordinance and issues permits to fenced and gated events with permittees in charge of admission. The case has been remanded to the district court to consider the modified injunction entered by the district court judge in light of Portland's new ordinance. That case could be a better candidate for eventual Supreme Court review if new facts develop and the expectation of privacy in a fenced and gated and permitted public space (more like a private space, or even more like a private home) and the speech rights attendant to the use of that space are matched up against Gathright's right to harrangue them from the adjacent sidewalk, outside the fence.
Since I have managed to cite not a single U.S. Supreme Court case in support of my position, I assume that Jim Westwood, my brother blogger, will now correct me concerning my errant hypotheticals. There is an Oregon Supreme Court case that is somewhat similar to Gathright. It is State v. Ausmus.
That's a great blog entry. It gives me some ideas as to what can and should be done for my own aviation client. http://www.nikeheelsboots.net/
Posted by: Nike Heels | May 07, 2011 at 01:18 AM