Lewin v. City of Great Falls

I have previously posted here, and here, about the City's stifling of the free speech rights of a City Commission candidate. Since then, I have been able to obtain our City Attorney's July 29, 2005, letter to Mr. Lewin, as well as Mr. Lewin's July 29, 2005, letter (crossed in the mail?) complaining of what occurred.

I do not know Mr. Lewin personally. From what I can see, though, he leans about as far to the left as I do to the right. With all due respect to Mr. Lewin, I could never vote for him and, frankly, think that our current administration is probably preferable to what a Lewin-led commission would look like.

That being said, it is an understatement to say that the ability to express one's views, especially on political matters, is a foundation of our civil society. Our city parks and streets belong to us, not some city officials who think they control this property. As our U.S. Supreme Court has said, city streets have "immemorially been held in trust for the use of the public and...have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions." (Hague v. CIO) These are not insignificant matters; when we allow what seem to be trivial violations of rights, more significant violations inevitably follow.

Since Mr. Lewin's version of events differs somewhat from the City's, I will base this discussion on City Attorney Gliko's version. Therefore, it is not subject to attack from the standpoint that I am shading the facts to support my position. And my position is....the City violated Mr. Lewin's rights to free speech.

There are a number of issues here, but since this is not a legal brief I will not touch on all of them. First, a cursory review of the facts.

Last month, the City held Riverfest. As the event was being set up, Keri Langille, City Events Coordinator, noticed Mr. Lewin's "set-up of a sign and preparation to pass out flyers between two other registered participants at the south end of Sight and Sound Park." She "welcomed" him, but told him he would have to pay a $75.00 booth fee. He refused. Several minutes later, she noticed that Mr. Lewin's sign was still up and he was still there. According to Mr. Lewin, he asked Ms. Langille what law required him to bow to her wishes, but that she never responded.

She then sent over two police officers who approached Mr. Lewin and said he had to either pay $75.00, or take his sign down. When Mr. Lewin objected, apparently vehemently, he was told he "might be subject to a charge of disorderly conduct." The officers then told him he could take down his sign and move about the event and "talk to those whose attention might be caught by [his] campaign buttons." Mr. Lewin complied.

There are several problems with what occurred here. First, let's start with the (correct) premise that the City has the right to impose reasonable "time, place, and manner" restrictions on a person's ability to speak. The problem here, though, is that those restrictions must be made in advance, and not imposed arbitrarily by some official's discretion. (Heffron v. Krishna)

The City Attorney relies on Municipal Code Sec. 9.10.010 as authority for Ms. Langille's conduct. But this section merely states that "group functions are allowed upon written permission from the Park and Recreation Director." He seems to argue that, since the Director (Patty Gumenberg) has the authority to refuse permission for the Riverfest event, that vests her with unfettered discretion to do anything she wants with respect to the event. Not true. She is still governed by law.

A second problem with the City's position is that the regulation of speech must serve an important state interest. The City's stated position for requiring Mr. Lewin to pay $75.00 is to "ensure a well run and well managed event for the enjoyment and safety of the public." (Note to readers: When the government uses words like "welfare," "enjoyment," and "safety," it literally screams: PRETEXT!)

Nowhere, though, does our City Attorney explain how it is somehow safer for Mr. Lewin to pay $75.00 and stay in one spot than it is for him to stay in one spot for free. And how can one suggest that it is safer to move through the crowd for free than to stay in one spot? In fact, the main case relied on by the City, Heffron, supra, comes to the exact opposite conclusion. In Heffron the Krishnas wanted to move about the fair and the officials said they had to stay in place. In other words, the officials there reached the exact opposite conclusion as ours concerning "safety" and "welfare."

Finally, when a police officer or other city official tells you to do something, or tells you that you cannot do something, you are free to ask them what law empowers them to limit your freedom to do what you please. If they cannot answer you, they are probably out of line. Mr. Lewin was correct to do what the officers told him to do. But city staff was out of line. The City of Great Falls Events Coordinator, or Parks and Recreation Director, do not hold some special claim to our public property that allows them to act as tinhorn dictators.

According to Mr. Lewin, the events were much more abusive than described herein. If that is true, officials were even more out of line. A $25,000 a year job on city staff does not entitle one to bully others, or otherwise impose one's will on others 'just because.'

Hey guys: You work for us.