ACLU: Denver ordinance bans free speech (Overpass Signs)

[RamboLiberal]

http://www.insidedenver.com/drmn/local/article/0,1299,DRMN_15_5173513,00.html

The Denver City Council will decide tonight whether to prohibit people from displaying banners and signs to motorists from overpasses.

Under the ordinance, such written displays as rush-hour marriage proposals, anti-abortion slogans and signs of support for the troops in Iraq would become a thing of the past.

The city attorney’s office said Denver’s interests in the ordinance are in public safety and providing police clear guidelines, not "the content of the demonstrators’ speech."

But the American Civil Liberties Union of Colorado called it an "overbroad and unnecessary ordinance" that would ban free speech citywide.

<snip>

"On the dubious rationale that it’s a necessary safety measure, the proponents apparently believe that signs advertising toothpaste and soap are safe but signs expressing personal viewpoints on public issues will distract motorists and cause accidents," he said, referring to roadside billboards.

[Redstone]

1. Illegal signs are NOT "free speech." Never have been. Never will be.

Redstone

[dubykc]

3. They're not illegal until there is an ordinance saying they are.

The question is: Is the ordinance constitutional, not the signs.

[Redstone]

4. The ordnance is legal, and the signs are not. This goes back to Common Law, and

the precept of "trespass to chattels." Basically, it says that you can't use someone else's property without their permission.

That's pretty simple and easy to understand, isn't it?

Redstone

[dubykc]

6. Aren't the overpasses they use PUBLIC property?

[Redstone]

8. Yes, and public property cannot be used to promote political opinions.

Common law as well.

Redstone

[5X]

10. When we do our monthly protests, we always stand on public

property, the sidewalk. It is the only legal place for
us to stand and we are most definitely partisan.

[dubykc]

12. That isn't necessarily true I looked up several sign ordinances and...

almost all had this caveat listed in the ordinance.

"Any sign protected by the Free Speech provisions of the United States and California
Constitutions, not exceeding four (4) square feet of such signs per premises."

As well as this one:

"No person shall erect, construct, paint, or display any temporary or permanent sign on
public property in any manner which is unsafe or which could create a dangerous or
hazardous condition upon the property or to users of adjacent property.

So the issue is actually quite subjective, not a foregone conclusion merely because it happens to involve public property.

The real or perceived issue is "safety", not the fact that it happens to be public property.

[Commie Pinko Dirtbag]

14. Waaaaa?

Hello... um... have you ever heard of these bizarre objects called... STREETS?

And other, even more alien, called... SQUARES?

[Name removed]

18. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Name removed]

45. Deleted message

Message removed by moderator. Click here to review the message board rules.

[Redstone]

47. OK, let's try again. Thank you for calling me a fascist. It means a lot to me.

Does that work better? If not, how SHOULD I reply to being called a fascist?

Redstone

[Richard Steele]

20. If that were true, every mass protest in US history would have been illegal.

It's not true, BTW.

[colorado_ufo]

31. From a practical point of view,

if any of these signs falls and obstructs a motorist's view, it could cause a very serious accident. People who choose to hang these signs should consider that it does very little to help their cause.

[Canuckistanian]

5. And who gets to dictate what's "illegal"?

This is First Amendment stuff here, just the same as bumperstickers and signs on private property.

When the state gets to dictate what an illegal form of expression of free speech is, that's where you get into trouble.

[Redstone]

7. But they're NOT "signs on private property." They're on PUBLIC property.

Understand the difference?

Redstone

[Canuckistanian]

9. Yes, I do, now that you've said it.

Public property, as you say, should be free from partisan slogans. We wouldn't like it if the situation were reversed.

[Orsino]

48. I believe that you meant to qualify that somehow.

[Canuckistanian]

49. I just get annoyed when people yell "illegal"

When you're talking about freedom of expression issues.

Then, I realized that it's illegal for a good reason.

[dubykc]

11. Self delete

[DuaneBidoux]

29. This has nothing to do with free speech. It is a property rights issue.

Owners of property can make rules that they want no signs on their property. This property is public propery. Neither you nor I is "the public." Society as a whole is public. Elected representatives make decisions on behalf of the owners of the property (i.e., all owners: the public).

No one has the right to put a sign on your property if you don't wish them to. It has nothing to do with free speech and everything to do with your right to control your property. Are you telling me that graffiti across the side of a bridge should be allowed because it is free speech?

[MindPilot]

40. false anolgy...

Graffiti is considered vandalism because it causes permanent damage to the surface of the structure.

[Toots]

13. They are not illegal yet

That is what the story is about, making them illegal.... reading skills...:shrug:

[rhett o rick]

15. What's your point? The f*** war is illegal, the torture law is illegal, spying

w/o warrants is illegal, and you want to make a legal issue of protest signs? Guns up the ying/yang are legal but no protest signs. Help us!! There are very few modes of free expression left, now take that away.

[Greyhound]

19. If bribery of elected officials is legal (money=speech) then written opinion

most certainly is too.

[HiFructosePronSyrup]

46. What country do you live in?

Because here in America, signs are protected by the First Amendment, and the only thing illegal about this is the "law" outlawing the signs.

Basic, grade school level civics.

[eleny]

2. Motorists need to keep concentration crisp for ads on alcoholic beverages

[denverbill]

16. For once, I disagree with the ACLU.

These folks wave their banners during rush hour, which invariably causes traffic jams. The protestor's right to freedom of speech should not give them the right to cause 10's or 100's of thousands of people the extra time and expense of sitting in traffic an extra 5, 10, or 30 minutes.

Frankly, these protestors should have the brains to figure out that pissing people off is not the best way to win them over. Undecided voters are far more likely to be negatively influenced by someone who deliberately causes them to be inconvenienced.

[MindPilot]

17. Unless the sign is physically in the street, how can it cause a traffic jam?

The traffic jam is caused by the first asshole who slows down to look, not the sign.

We have a real problem in this country of blaming the thing instead of the person who committed the act.

[noamnety]

21. I'm not sure you fully get the concept of protests

[DuaneBidoux]

30. So you should be allowed to place that sign over the door of a public

courtroom? Then anyone else can do the same? Pretty soon the public courthouse looks like an admart? The public has a right to control its property. Neither you nor I are "the public."

[noamnety]

32. When citizens hang signs in public spaces ...

[Greyhound]

22. This issue is much larger than your personal inconvenience. Unless

they are actually blocking traffic there is no basis for this desperate "argument". Do you really think that a hand painted sign saying 'Impeach Bush' or 'abortion is murder' is more distracting than a 40 ft high picture of a models bare ass hocking jeans?

[Occulus]

23. There are a couple people on this thread who are

championing the cause of suppressing speech.

Interesting, isn't it? Why would they want to do this?

Things that make you go, "Hmmmm...."

[iverglas]

26. "Interesting, isn't it? Why would they want to do this?"

Yeah, I always wonder why anyone wants to portray someone who appears to have a reasoned argument that is consistent with shared fundamental values, but disagrees on a fine point in the implementation of those values, as a fascist.

And then I wonder about why people who seem to want to do that can never quite come right out and say what they mean.

You know, it really is entirely possible for people of good will, speaking in good faith, who share a commitment to fundamental values like freedom and democracy, to disagree about things.

Sometimes they do a lousy job of explaining why they disagree, and demonstrating how their position is consistent with those fundamental values. But they don't do half as lousy a job as someone who merely insinuates and maligns without demonstrating any basis for the insinuations and calling of names that they won't quite say out loud anyhow.

Limiting speech is quite simply not the same as "suppressing speech" -- it may be supressing some speech, but some speech is suppressed every minute of every day. Seen any ads for snake oil lately?

People of good will can certainly disagree when it comes to what limits on speech are justified. Discussion cannot take place when one of them substitutes name-calling for argument.

[Greyhound]

28. Did you reply in the right place?

I didn't read the word fascist, nor was it implied.

[iverglas]

42. I give up

Hmm, I wonder who would be "championing the cause of suppressing speech".

Democrats? Liberals? Anarchists?

I'll bet that if I say that someone is walking down the street, I'm not calling him/her a pedestrian.

[cannabis_flower]

35. Actually...

It is rush hour... there are traffic jams already. That is why they do it at rush hour, because everyone is already in a traffic jam and they are able to look at the signs. If it wasn't rush our people might zip by so fast that they wouldn't be able to read the signs.

Not only that, you wouldn't want to do it when it wasn't rush hour. Not as many people would see the signs and you don't really want people to slow down to see the signs, you want them to already be going slow so that they can see the signs.

[Quantess]

37. I think it's annoying.

Some people are going to slow down to read the signs, even if it is in the middle of a traffic jam. If it causes anyome to slow down, even just a little, it has no place on an overpass. Free speech has its place, but not if it impedes traffic.

Good thing my horn works.

[MindPilot]

39. Traffic flow is more important than anything!!

Again how is that the fault of the sign?
The sign is an inanimate object; it cannot impede traffic unless it is physically in the road.

Any driver who slows when no hazard is present should be beaten to death, or at least given a ticket.

[AngryAmish]

41. This is sophistry

I go to work. If I am delayed in going to my work bad things can happen to other people. Delaying people matter.

Yes, it is true a sign cannot impede traffic unless it falls on the lane. However several years ago a clothing store painted their warehouse with a big picture of Dennis Rodman. It screwed up traffic for a few weeks until they were forced to take down the sign -- because of the gaper's on the street.

Are you ignorant of the concept of a gaper's block? \

Anyway, don't hang a banner over my highway or I might get off at the next exit and come looking for you.

[iverglas]

24. how the hell does anyone "ban free speech"?

What a nonsense mishmash of words. What laws sometimes do is restrict, or even ban, speech. (They restrict it whether it is "free" or not ... if someone were being forced at gunpoint to hang a sign from an overpass, it wouldn't be "free speech", but it would still be a prohibited act.)

Speech is restricted in thousands of ways. There are laws against telling lies in court: that's speech. There are laws against advertising snake oil to cure cancer: that's speech. Speech is restricted when the public interest in restricting it justifies the restriction.

In Canada, provinces generally ban billboards, and any private messages on signs, within a considerable distance of highways, for instance. There are two considerations: one is the safety of the travelling public, which is jeopardized by visual messages that distract drivers, and one is the natural beauty of the countryside, which is blighted by advertising. The public has a legitimate interest both in protecting the travelling public from distracted drivers and in protecting the natural beauty of the countryside.

It can hardly be denied that messages hung from highway overpasses are distracting for drivers, given natural human curiosity.

Whether it should be illegal to post messages on public property depends on the circumstances. Here's what the Supreme Court of Canada has had to say, which I offer here on the off chance that someone might be interested in the issues and how they have been addressed in other free and democratic societies.

http://scc.lexum.umontreal.ca/en/1993/1993rcs2-1084/1993rcs2-1084.html

The accused advertised upcoming performances of his band on two occasions by affixing posters to hydro poles contrary to a city by‑law banning posters on public property. On both occasions, he was charged under the by‑law. The accused, while not denying the offences, took the position that the by‑law was unconstitutional because it was inconsistent with the guarantee of freedom of expression in s. 2(b) of the Canadian Charter of Rights and Freedoms.

... Postering conveys or attempts to convey a meaning, regardless of whether it constitutes advertising, political speech or art. The first part of the s. 2(b) test is satisfied.

Postering on public property, including utility poles, clearly fosters political and social decision‑making and thereby furthers at least one of the values underlying s. 2(b) <guarantee of freedom of expression>. No persuasive distinction existed between using public space for leaflet distribution and using public property for the display of posters. The question was not whether or how the speaker used the forum, but whether that use of the forum either furthered the values underlying the constitutional protection of freedom of expression or was compatible with the primary function of the property.

... The objective of the by‑law was pressing and substantial and the total ban was rationally connected to these objectives. By prohibiting posters entirely, litter, aesthetic blight and associated hazards were avoided. The complete ban on postering, however, did not restrict expression as little as is reasonably possible. The by‑law extended to trees, all types of poles, and all other public property. Worker safety was only affected when posters were attached to wooden utility poles and traffic safety was affected only where posters were displayed facing roadways. Many alternatives to a complete ban exist. Proportionality between the effects and the objective was not achieved because the benefits of the by‑law were limited while the abrogation of the freedom was total. While the legislative goals were important, they did not warrant the complete denial of access to a historically and politically significant form of expression.

[Hepburn]

25. Balancing Test determines whether the ordinance stands...

...or falls. Free Speech is NOT unlimited. It is the old adage about not being able to shout, "FIRE," in a crowded theater. If the "city fathers" can prove up that that signs are a safety hazard, then the signs and all of them will be out-lawed. If they cannot prove it up, the opposite result. Free speech is therefore balanced against public safety.

That is basically what I learned in Con Law class in law school about a zillion years ago!

In this particular case, it is going to take traffic studies from the particular areas which are being considered and stats from accident reports to see if the signs are of any significance in any reported accidents. It is NOT just that accidents happen ~~ they must be related to a sign or signs in some manner so as to satisfy actual and proximate causation.

[Greyhound]

34. Yelling "FIRE" in a theater is only against the law if there is no fire.

And this is political expression anyway which, I believe, is a special class.

[Hepburn]

43. You are absolutely right

I left that part out! LOL, ONLY applies when there is a fire! Thank you for correcting me ~~ I left out the word falsely and that in this situation is a very important word!

However, that is a safety issue ~~ and when safety issue impact on Civil Liberties, they have to be fully evidenced and ~~ as I said ~~ the court then has a balancing test which it goes through and weighs the specifics of each case and for the state to infringe ~~ there must be a compelling interest.

The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing a panic. <...> The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Schenck v. United States, 249 U.S. 47 (1919) which basically was directed toward safety issues as well as other issues. A rather broad stroke was painted here ~~ even tho the " falsely yelling fire in a crowded theater" lingo comes from this case.

However, that test was over-turned in Brandenburg v. Ohio, 395 U.S. 444 (1969) which states speech could only be banned when it was directed to and likely to incite imminent lawless action, such as a riot. However, Brandenburg is about "inflammatory" speech and not safety issues. So, while the "false fire in a crowded theater" goes to safety issues per Schenck, Brandenberg does not. The latter is about speech which is meant to inflame.

However as to safety issues:

Limits on the Exercise of Free Speech and Assembly Based Upon Forum Type

Public Forum: Expressive activity in an open public forum may not be suppressed, controlled or excluded unless it is necessary to achieve a compelling government interest, and is narrowly drawn to achieve that end. A compelling government interest means an interest of the greatest importance, such as protecting the health, safety and welfare of the community. However, reasonable time, place and manner restrictions may be used if applied neutrally to all similarly situated parties.

http://ogc.arizona.edu/white_paper_sja_first_amendment_free_speech_and_assembly.htm

So a "compelling government interest" must be found for restricting free speech viz public safety issues. In other words, the restrictions on banners, signs, etc., must not to based on something which speculative, but based on something which is both concrete and compelling. Thus, if for example, they just "think" the banners "might" cause accidents ~~ no restrictions.

Btw: There is a difference with "commercial" speech and it falls under different rules. I am not addressing that in this post.

JMHO

[Tempest]

27. This could end up biting Denver right on the ass

If overpass signs are banned for safety reasons (a bogus one), the argument could be made that billboards are also a safety hazard.

The city receives property taxes and user fees from the companies who own the billboards.

Denver could be pissing away funds just to make a political statement (which this is obviously about).

[Norquist Nemesis]

33. How have they harmed the public?

Seriously. Seems if it's an issue of public safety, then there would be something telling us how the public is in jeopardy. :shrug:

I guess what struck me is the 'Liberal Press' cites "such written displays as rush-hour marriage proposals, anti-abortion slogans and signs of support for the troops in Iraq" as their examples of the banners. Hmmmm...sounds like a call to arms.

[Freeusfromthechurch]

36. Signs..Signs everywhere signs.

[Quantess]

38. Is a honking horn considered "free speech"?

Anyone slowing down to look at a sign like that in rush hour traffic is going to be hearing my horn speak freely.

[Hepburn]

44. Honking your horn CAN be protected speech.

It is known as "symbolic speech." Just like when there were issues over clothing made of the US flag ~~ that is protected as symbolic speech. Burning the flag is probably the best known form of symbolic speech. You don't have to utter a word and certain actions can be protected because the USSC sees them as a form of expression which is protected under the 1st Amend.