A&M Law Professor: Dallas' New Protest Ordinance Is Unconstitutional

MargaretPenrose.jpg
Meg Penrose
The lawsuit filed last year by Bush Library protesters alleging that Dallas' ordinance banning hand-held signs from within 75 feet of highways violated the First Amendment has been in a holding pattern for several months while the city worked to revise its rule.

That process wrapped up last week when the Dallas City Council passed a new measure aimed at keeping demonstrators away from highways. Any hope this would make the litigation go away -- if any such hope ever existed -- should be put to bed now.

See also: Dallas City Council Is Fine with Free Speech, as Long as It's Not Close to a Freeway

The new rule is still aimed at silencing free speech, and it's still unconstitutional, says Meg Penrose, the attorney representing the Bush Library protesters.

Clearly, Penrose isn't a disinterested third party. She's also not one of the money-grubbing trial lawyers Councilwoman Vonciel Hill called to mind when she dismissed concerns about the new measure's constitutionality by arguing, essentially, that Dallas is going to be sued no matter what. Penrose is a constitutional law professor at Texas A&M Law School in Fort Worth, motivated to sue the city out of principle rather than in quest of an uncertain paycheck.

The problems with the law are myriad, Penrose says. The language - it bars anything "intended to distract the attention of motorists" from any place visible from highways -- is overly broad and overly vague. Take the part prohibiting "costumes." Does that mean trick-or-treaters would be barred from walking across a highway overpass on Halloween?

The deeper problem, though, is that it flies in the face of what the nation's highest courts have said about the First Amendment. To place a restriction on constitutionally protected speech, the government has to prove that it's necessary to protect public safety.

DPD Chief David Brown, along with a majority of City Council members, argued that people protesting near highways distract drivers, thus leading to accidents. But the city has no data to back up this claim, not a single instance it can cite in which some costumed, sign-holding demonstrator has caused a vehicle to crash. Police officials have admitted as much during proceedings in the criminal case against the Bush Library protesters.

"Under the Constitution, you cannot shut down political speech just by hiding behind a big sign called 'safety,'" Penrose said.

See also: As City Hall Battles Activists' Lawsuit, Dallas Moves to Ease Rules on Street-corner Protests

Furthermore, if protesters do pose such a threat to drivers, why is the law limited to highways? Why not Greenville Avenue? And why are billboards, "for lease" signs and other commercial speech, which is also intended to distract drivers, OK?

The law arbitrarily picks certain locations, and it arbitrarily singles out political speech.

There's more at stake here than the time and money the city is spending to defend the law, Penrose argues. Take the case of the Bush Library protesters. Their criminal citations were ultimately dismissed on free-speech grounds, but only after months of legal wrangling and a big assist from a law professor.

Criminal charges, or the threat of them, are probably going to have a chilling effect on free speech, which is exactly the thing the First Amendment was designed to protect against.

Send your story tips to the author, Eric Nicholson.

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38 comments
rusknative
rusknative

AGGIE LAWYER?  sure...heavy weight constitutionalist and 4H Future Farmer rolled into one.

dfw_maverick
dfw_maverick

Why didn't the city council consult with a competent lawyer before writing the law?

bvckvs
bvckvs topcommenter

Hiding behind "safety" was definitely a stupid move.  There's no safety issue involved with protesting outside the Bush museum.

(btw - it's wrong to call it a library).

DonkeyHotay
DonkeyHotay topcommenter

When Free Speech is Outlawed, only Outlaws will Speak Freely!



smichaelclark591
smichaelclark591

Dallas city council is costing the city millions in law suites.  Between them and the Police Department the city is going to go broke paying out all these law suites.  The council knows the city will be sued when they make certain decisions but they go ahead and do it anyway.  They don't care about the tax payers dollar.

DonkeyHotay
DonkeyHotay topcommenter

Human-Held Signs of a Political Nature ARE Protected Speech 

johnnyconcierge
johnnyconcierge

Better get rid of billboards then. Also those distracting lights on the Omni will have to go. Corrupt ass government.

holmantx
holmantx topcommenter

Anybody object to a bloody Jesus mounted on a cross with his gang from the last supper demonstrating on the Mockingbird overpass?  And knowing those guys, they'd be out there for months.

Hows about those rabid TEA Partiers?  Want them out there?

Mormons?

Strippers?

I like strippers.

ok. strippers exercising their rights.

holmantx
holmantx topcommenter

The case, Barber v. Texas Department of Transportation, revolved around a sign that Pat Barber had posted on his property. Mr. Barber decided to put up the sign because of his concern about illegal vehicle searches, which were occurring with some frequency along Highway I-10, near Colorado City in West Texas, which his property bordered. The billboard read “Just Say NO To Searches,” and provided a phone number that connected the caller to a recorded message containing information about the constitutional right to refuse unreasonable searches.

The Department of Transportation demanded that Mr. Barber take down the sign, claiming that it did not comply with the Texas Highway Beautification Act.

The Texas Supreme Court held that Mr. Barber’s First Amendment right to freedom of speech was not violated. The Court ruled in favor of the Highway Beautification Act.

The federal government can and does withhold federal funds from state highway departments that ignore the federal Highway beautification act, of which this city is acutely aware.  

dingo
dingo

-Why is the law limited to highways? Why not Greenville Avenue? 

Because speed limits on Greenville are not as conducive as freeway speed limits are to serious chain reaction accidents?

-And why are billboards, "for lease" signs and other commercial speech, which is also intended to distract drivers, OK?

Because of the brain's evolutionary conditioning to attend toward the irregular (demonstration) rather than the common (billboard)?


-----


There is probably well settled case law on this issue. There's probably no substantial safety threat from an 'Impeach Whatshisname' or 'OU Sucks' banner hanging from a bridge.


I would ask the good lady Aggie if she deems it plausible that someone could somehow craft a constitutionally viable regulation prohibiting PETA love-ins next to entrance ramps.

holmantx
holmantx topcommenter

Several people were loitering on the bridge over I-30 as I passed under it. 

A chunk of concrete hit my windshield on the drivers side. My speed was 60 mph. 

The safety glass caught the object at just under half way through, blasting my face with shattered glass.

Had the specific gravity of that concrete been just a few ounces more, or if my rate of travel had been a few miles per hour faster, it would have decapitated me.

Coulda been TEA Partiers.

Now I change lanes when there are humans on the overpass.

Sharon_Moreanus
Sharon_Moreanus topcommenter

Not that there is anything more important to deal with.

schermbeck
schermbeck

As far as I can tell, the law is only limited to two sections of Dallas highway that make up a small fraction of total highway frontage, giving a complete lie to the "public safety" fig leaf that was used to justify this laughable attempt to keep protesters away from the precious Bush Library. Passed days after the city's MLK day parade, nothing makes it more clear which side of history the City is still on, 50 years down the road......

holmantx
holmantx topcommenter

The reason why Dallas has a restricted sign ordinance along highways is because of the federal Highway Beautification Act.  TxDoT can withhold federal dollars (and fine the City) if the City jeopardizes  compliance with the The Act.

Think of it like HUD and subsidized housing.

darren.dupre
darren.dupre

So would this reasoning also apply to the guy in Frisco who was arrested and charged with violating their human sign ordinance when he was warning other drivers of a speed trap?

ruddski
ruddski

There's a definite safety issue - almost all these professional Bush haters are mentally unbalanced, and very few are employed except of possibly fast-food jobs, perfect candidates for slip 'n fall injury scams.

ruddski
ruddski

Not if you're holding them in the wrong place, like traffic, or on Dave Letterman's front lawn.

cynthiapea
cynthiapea

@johnnyconcierge their excuse is "safety" thus I want them to defend how the Omni is not distracting to drivers at all.... while they are at it, I want to see how they defend digital billboards that change advertising every 10 seconds.....

Sharon_Moreanus
Sharon_Moreanus topcommenter

Strippers exercise on poles not overpasses.

P1Gunter
P1Gunter

@holmantx That was how the feds finally got Louisiana to finally change their drinking age to 21 too. Just withhold federal funds until you get what you want for "public safety."

DonkeyHotay
DonkeyHotay topcommenter

@holmantx  "The Texas Supreme Court held ..."


Well, there's your problem.



RTGolden1
RTGolden1 topcommenter

@holmantxColorado City isn't anywhere near I-10.  It's I-20.

DonkeyHotay
DonkeyHotay topcommenter

@ruddski ... you can hold them in public on public sidewalks, parks, or anyplace a pedestrian can legally be, etc, and you can hold them on private property with permission of the property owner.



holmantx
holmantx topcommenter

@cynthiapea 

Good point.  Get rid of anyone who can drop a rock on the freeway.

except hurtling strippers.

DonkeyHotay
DonkeyHotay topcommenter

@ruddski  ... your quibble was no point at all.


The nearly universal rule is that you can hold them in public on public sidewalks, parks, or anyplace a pedestrian can legally be, etc, and you can hold them on private property with permission of the property owner.





ruddski
ruddski

How utterly true, Donkey, there are many places one can stand with or without signage. However, my point stands.

DonkeyHotay
DonkeyHotay topcommenter

@P1Gunter @DonkeyHotay @ruddski 


The tiny limits -- a few feet -- on election day campaigning at polling places are nearly ubiquitous, and limited to not only that particular day, but limited to a few hours when the polls are active.


Not only are signs prohibited on medians, but so are people, which is why human carried signs on medians aren't allowed.


The general rule is that a human carried / worn political speech sign is allowed anywhere said humans are allowed to legally be, per the first amendment.




P1Gunter
P1Gunter

@DonkeyHotay@ruddski Not exactly, that is waaaaay oversimplifying the laws and generalizing them. For instance, political speech -  in Texas -  is legally forbidden within a certain range of any polling station. It's not far, but it is on the books and it's you see all political signs and campaign folks a certain distance away from them, despite the polling stations being public property.


Many cities (see the Frisco article from earlier this month) prohibit signs from the medians, which are technically public property including ones carried by people.


Private property is one thing, but when it comes to cops and public property it gets really shady.

holmantx
holmantx topcommenter

@schermbeck @holmantx 

Barber asserted it was a violation of his free speech rights.  It doesn't matter what kind of sign.  It constituted a "nuisance" and was rejected.

I think the feds control ANY signage within 600 feet of a federal highway.

It is also a matter of Public Safety (distracted drivers).  GW Bush waving a sign on the Mockingbird overpass may cause wrecks.

And pre-existing billboards are grandfathered.

schermbeck
schermbeck

@holmantx@schermbeckIt's a billboard case. Not relevant. And if this excuse was valid, why wouldn't it cover ALL freeways in Dallas, instead of just two? And why wouldn't other cities have similar restrictions? This is a spiteful Dallas move to protect the Bush Library, nothing more.

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