Wow! In San Diego, government tried to end free speech. At least one judge decided the Constitution exists, even in radical San Diego.
“Whether someone’s conduct is offensive and whether their speech is loud, vulgar, or indecent, “depends on the beholder, will change over time, and will vary across locations and age groups,” wrote U.S. District Judge Barry Ted Moskowitz, a Bill Clinton appointee, in his order denying the city of San Diego’s motion to dismiss the case and blocking the city from enforcing the law.
“Those terms are subjective and can only be defined by comparison to a norm of ‘acceptable’ or ‘normal’ conduct and speech,’” he added, but the city’s ordinance doesn’t say how far they can stray from those norms, or what those norms are. Deciding those parameters of normalcy depends almost entirely on whether or not a policeman is annoyed, Moskowitz wrote.
Therefore, Dorsett can continue with his lawsuit claiming the ordinance violates the First and Fourteenth Amendments.
“Now people will be able to engage in activities that they should have been able to do,” said Michele Akemi McKenzie, Dorsett’s attorney, in a phone interview. “People are entitled to their First Amendment rights and activities.”
Speech ahs all forms—even blowing bubbles.
San Diego can’t enforce offensive public speech law after judge finds it likely unconstitutional
A California judge said violations of a city ordinance from more than a century ago may be too likely to hinge on whether or not a police officer is annoyed to be constitutional.
Sam Ribakoff, Sergio Frez , Courthousenews, 9/23/24 https://www.courthousenews.com/san-diego-cant-enforce-offensive-public-speech-law-after-judge-finds-it-likely-unconstitutional/
SAN DIEGO (CN) — After criticizing a San Diego cop for ticketing another busker making bubbles for children without protective equipment in the city’s famous Balboa Park, local artist and busker William J. Dorsett was given a ticket for violating a local law prohibiting vulgar and offensive language in public spaces.
On Monday, a federal judge ruled that Dorsett will likely be able to prove that law is unconstitutionally vague and too broad and while his lawsuit makes its way through the court, the city has to stop enforcing it.
Whether someone’s conduct is offensive and whether their speech is loud, vulgar, or indecent, “depends on the beholder, will change over time, and will vary across locations and age groups,” wrote U.S. District Judge Barry Ted Moskowitz, a Bill Clinton appointee, in his order denying the city of San Diego’s motion to dismiss the case and blocking the city from enforcing the law.
“Those terms are subjective and can only be defined by comparison to a norm of ‘acceptable’ or ‘normal’ conduct and speech,’” he added, but the city’s ordinance doesn’t say how far they can stray from those norms, or what those norms are. Deciding those parameters of normalcy depends almost entirely on whether or not a policeman is annoyed, Moskowitz wrote.
Therefore, Dorsett can continue with his lawsuit claiming the ordinance violates the First and Fourteenth Amendments.
“Now people will be able to engage in activities that they should have been able to do,” said Michele Akemi McKenzie, Dorsett’s attorney, in a phone interview. “People are entitled to their First Amendment rights and activities.”
The law, when in effect, applies at all times in the city, at every park, and every street, and gives unilateral powers of enforcement to police officers, she added, which Moskowitz agreed was likely unconstitutional.
The judge also noted that Dorsett would be likely to succeed on the merit in showing that the law was vague and overbroad, writing that it “does not give fair notice of what speech is lawful or unlawful, and thus its overbreadth depends on how it is defined. Its vagueness essentially precludes a clear overbreadth analysis.”
The city’s ordinance, first passed in 1895, hasn’t been updated since 1903 “despite significant developments in First Amendment jurisprudence over the last 100 years,” Dorsett claims in his complaint.
As an artist, busker and self-described First Amendment rights activist, Dorsett said he was asked by other buskers to come to Balboa Park to witness park rangers overzealously enforcing local laws against buskers in June 2023.
At the park, Dorsett filmed a park ranger issuing a citation for an “environmental impact issue” to a man making bubbles out of dish soap for children.
In his complaint, Dorsett says the man, after receiving the citation, said it wouldn’t stop him from returning and continuing his busking. Dorsett then agreed with the man and told him not to let the ranger intimidate him because “they’re being bullies.”
After hearing the word “bullies,” the ranger turned to Dorsett and cited him under the city’s disorderly conduct ordinance, Dorsett says in his complaint.
Dorsett took the infraction to a bench trial, where — without an appointed counsel for Dorsett — a judge using Black’s Law Dictionary’s definition of “disturbance” found Dorsett guilty of violating the law.
Dorsett then appealed the ruling . The court reversed and dismissed his conviction.
He then filed suit challenging the constitutionality of the ordinance. He’s asking for a jury to stop the city from enforcing the law, declare it unconstitutional, and to be granted compensatory damages, including for emotional harm.
Dorsett is also involved in a suit challenging San Diego’s strict sidewalk vending law.
The San Diego City Attorney’s office did not immediately respond to a request for comment.
