Dallas Bans Free Speech, Overpasses For America Sues

Breitbart – by Merrill Hope

DALLAS, Texas — It is one of those sci-fi collides with real life moments like in “The Giver,” Lois Lowry’s dystopian novel where freedoms are traded in for the public safety, only here it’s the Dallas City Council and it’s a “free speech ban” in the City of Dallas that’s allegedly for the public’s own good. Overpasses For America (OFA), a non-partisan grassroots group, is challenging the constitutionality of that ban in federal court.

On August 13th, Sr. Trial Counsel Erin Mersino from the Ann Arbor-based Thomas More Law Center (TMLC) and Texas co-counsel, Jerad Najvar, filed the OFA civil rights action in the U.S. District Court for the Northern District of Texas, Dallas Division.  

This is the result of a 2014 “free speech ban” that precluded OFA’s right to assemble peacefully on overpasses within the Dallas city limits as of March 15th. OFA had held a small gathering on the Northaven overpass at the Dallas North Tollway on March 1st. Thelawsuit stated that “the free speech assembly was a success and posted no public or traffic safety concerns.” It also pointed out that the event was organized “in cooperation with law enforcement from the Dallas Police Department with a Director of Homeland Security in Dallas.”

Since it was successful, OFA Texas state leader Valerie Villarreal, named in the lawsuit, was planning the next one for March 15th; however, “Plaintiffs were informed that they would not be allowed to hold their free speech assembly because the Dallas Police Department was now obligated to enforce the City of Dallas free speech ban,” according to the lawsuit.

Breitbart Texas reported on OFA peaceful public rallies including one held in downtown Dallas outside of the Dallas Commissioners Court to protest Judge Clay Jenkins and thenow defunct plan to shelter migrant minors in Dallas County.

This is not the first time the Dallas City Council has attempted to dismantle constitutionally protected free speech. A similar lawsuit was filed in the same U.S. District Court on April 17, 2013 by six individuals who wanted to protest peacefully during the opening and dedication of the George W. Bush Presidential Center. The 2013 lawsuit was another version of this same ordinance and it ended in an injunction, ending the ordinance even though the City of Dallas defended it as a “reasonable content-neutral restriction on the time, place, and manner of speech permitted along the side of highways in the city limits,”according to the Dallas Morning News.

The argument against that ordinance was that it was “overbroad, vague, and an unconstitutional restriction on their First Amendment right to protest on the sidewalk abutting the highways specified in the Ordinance.”

However, on January 22, 2014, the Dallas City Council suddenly made it an “offense to engage in any conduct, including holding a sign, intended to distract a motorist, or wearing any clothing intended to attract the attention of the public,” according to a TMLC news release.

The OFA lawsuit states “Defendant City of Dallas enacted an Amended Ordinance 28-158.1; 29244 … which eviscerates Plaintiffs’ fundamental rights of free speech and peaceable assembly, making it unlawful and subjecting to fines speech and assembly which takes place on any overpass in the City of Dallas, Texas (hereinafter “free speech ban”), a forum which shares the same protections as a public sidewalk and constitutes a traditional public forum.

The ordinance (#29244) was signed by Assistant City Attorney Chris Bowers on January 22 and went into effect on January 27.

Breitbart Texas spoke to Mersino. She pointed out that the City will argue for an appropriate time, place and manner restriction on free speech but public areas like sidewalks, including sidewalks on overpasses are paid for by tax dollars and are consider common areas for such peaceable assembly.

Lana Shadwick, Breitbart Texas contributing writer and legal analyst, explained that “Content-neutral speech is tested by the time, place, and manner of the speech but not the content of the speech. It can incidentally restrict speech but the intention is to regulate conduct that is unrelated to speech.”

Question is, can they? Najvar told Breitbart Texas, “Places like overpasses, where thousands of cars pass each day, have replaced the town square. Overpasses are a valuable public forum for speech, and the government can never place limits or restrictions on speech without explaining why it is necessary and constitutional. Dallas is not banning billboards as distractions to motorists, and it can’t ban signs with political messages, which are no different.”

Although the Dallas Morning News chalked up the whole case to an “anti-Obama group,” it never crossed their storyline that the same ordinance that seeks to stop the First Amendment rights of a patriotic group can also stifle their free speech.

However, this case is not about President Obama. This is about a perpetually resurrected, morphing ordinance that the City of Dallas continuously tweaks to further tighten the noose around constitutional freedoms and liberties granted under the First and Fourteenth Amendments.

Shadwick elaborated on those amendments, reminding us of their constitutionality: “Among other protections, the First Amendment of the United States Constitution provides that ‘Congress shall make no law… abridging the freedom of speech, or of the press; or the right of the people peaceably to assembly…'”

She continued, “The Fourteenth Amendment of the United States Constitution provides that ‘[n]o state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law.'”

Shadwick fleshed out the scope of these amendments in daily life. She said, “The Supreme Court has ruled that First Amendment protections apply to the states under the Fourteenth Amendment and this includes governmental entities in the state like City Councils.”

She also provided a broader context to these events for Breitbart Texas noting, “The Dallas City Council, like the police officers in Ferguson, Missouri, have violated the First Amendment rights of Americans. Officers in Ferguson arrested and tear-gassed journalists who were recording news history. Similarly, the Dallas City Council has sought to chill the exercise of free speech by imposing criminal records and fines upon those who would be critical of the President of the United States, and they have done so under the guise of protecting the public.”

“The City of Dallas’ free speech ban threatens Plaintiffs with criminal sanctions and fines up to $500.00 for exercising their right to free speech and free assembly,” the lawsuit also stated.

However, the Dallas City Council may well know where is that line of constitutionality. Councilman Philip Kingston pleaded with his fellow council members in January to dump the ordinance, referencing the 2013 lawsuit in saying ” the issue here is we’re going to get sued again.”

“We don’t have a single data point indicating a protester ever caused a problem on one of our roadways,” Kingston said in the Dallas City Council meeting.

“Yet, we’ve got this whole enforcement structure and apparently a pile of money to pay everybody’s attorney’s fees when we violate their First Amendment rights in preventing them from protesting peaceably and reasonably,” he continued.

The ordinance itself originated in 1989 when the Dallas City Council adopted Ordinance #20169 that was which became Section 28.158.1 of the Dallas City Code. It prohibited the carrying or display of a sign on, over, or within 75 feet of a roadway of designated streets or highways in the City if the signs displayed were in a “manner to intended to attract the attention of vehicle occupants on those streets or highways,” also according to the 2013 lawsuit.

Mersino said their next step will be “to seek relief from the court” so that in the next couple of weeks (the City of Dallas) stops enforcing the ordinance that “we believe is unconstitutional.” TMLC will pursue the case if the ordinance continues to be enforced.

She added, “The ordinance is so dangerous because it silences all dialogue in the public square. Today it’s OFA’s message, tomorrow it could be yours.”

Follow Merrill Hope on Twitter @OutOfTheBoxMom.



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