8/17/2005

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.

4 comments:

Anonymous said...

Mr. Lewin can be rather tiresome at times, but he does have a right to speak. At last nights' Work Session and later at the Commission meeting, he was treated rudely by Mayor Gray on several ocassions.
You are right, geeguy, when you categorize him as pretty left leaning. What worries me is that he seems to be a one issue candidate and has ridden that particular horse to death.
He is running a strong campaign, though, and may very well be elected on name recognition alone.
Heaven help us!

The Raving Norseman said...

I'm torn. Certainly you know the legal underpinnings better than I do, and I share many of your misgivings toward the little Napoleons of the bureaucratic world. But other than the fact that the matter appears to have gotten out of hand, I'm not sure I have as much of an overall problem as you do with regulating impromptu participation in an organized event.

Let me hasten to add that while I would likely also not vote for Mr. Lewin if he were the last candidate on Earth, my political position is not what brings me to this conclusion. I would be equally irritated if I went to an organized event like Riverfest for an enjoyable time with my family and the nice anti-abortion folks with their pretty pictures showed up to educate my four-year-old. I probably share a lot more of their outlook on the world than I do with Mr. Lewin, but I'd prefer to know in advance whether they were going to be there, too. That means registration. I'd be all the more irritated if I were a participant, like say the Children's Museum, who had jumped through the hoops and paid the fees that help pay for marketing, only to see Mr. Lewin or the hypothetical abortion protesters get to participate for free.

GeeGuy said...

The Raving Norseman makes a legitimate point. What's the answer?

Clearly, the policy needs to adopt an ordinance on these matters rather than leaving them to the discretion of "little Napoleons of the bureaucratic world!"

Treasure State Jew said...

GeeGuy;

That is my problem with this entirely. Something like free speech (or for that matter, the right to bear arms, the right to be secure in your persons papers and effects, the right against self incrimination, etc.) is too important to be left to the whims of some low ranking city functionary. If the city was going to make rules about this, it should have been done in advance.

Shame on the city for their action here.