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Local ACLU Considers Challenge to Median Ordinance
Standing Up for the Right to Stand Up
At the most recent meeting of the Santa Cruz County Chapter of the American Civil Liberties Union held on July 22nd, the group discussed a proposal to challenge a newly adopted city ordinance prohibiting virtually all activities on median strips within the city limits. Designated as Section 10.36.040, the ordinance makes it unlawful to "remain on public medians ... for purposes other than assisting pedestrians to safely cross the street ...". This ordinance expressly prohibits "unlawful activity" including the "solicitation of money" but is entirely silent as to activities that may involve freedom of speech and freedom of expression. Putting aside for moment that solicitation of money, otherwise known as "panhandling;" has been held to be a constitutionally protected activity, the overbroad, ambiguous and vague nature of this ordinance make it ripe for constitutional challenge on civil liberties grounds.
Based upon a stated public policy that the prohibited activities pose a danger to "the safety of the community", this poorly crafted ordinance fails to specifically address the "lawful" and constitutionally protected activities that have historically been a part of our city's rich tradition of free speech. At a previous meeting of the ACLU, one of the public attendees informed the Board that the City Attorney had informed him that holding a sign expressing a point of view while standing on a median strip would be a violation of this ordinance. From both common sense and civil liberties perspectives, this is wholly unacceptable.
If taken up, a legal challenge to this ordinance would be made on the grounds that (1) the law as written is so ambiguous as to have no certainty of uniform enforcement: (2) is vague as to its material terms: (3) is overbroad as written and (4) is, therefore, unconstitutional on its face and as applied. An ACLU Santa Cruz Board member has offered to be a named litigant in the proposed court challenge and would be defended by a local ACLU member attorney.
Many local activists remember the constitutional claims that were brought on behalf of Occupy Santa Cruz by both Ed Frey and Steve Pleich. Those claims were removed to United States District Court based partly on the belief that constitutional claims, such as the ones raised by the new city ordinance, are more appropriately heard by a federal court rather than a our Superior Court. Any decision as to venue would be a determination made by ACLU Santa Cruz in consultation with the ACLU of Northern California. ACLU NorCal has been contacted concerning the civil liberties implications of similar ordinances in other cities and counties and would certainly contribute to the challenge.
As our community moves into the future, we must not leave our most cherished values behind. It was Benjamin Franklin who famously observed, “They who can give up essential liberty for safety deserve neither liberty nor safety”. ACLU Santa Cruz believes that our community deserves the civil liberties guaranteed by the Constitution of the United States and these rights cannot, will not, be sacrificed on the alter of public safety.