Don’t Chalk it Up to Free Speech
Timothy Osmar, an Occupy Orlando demonstrator, was arrested on December 15 for writing, “The revolution will not be televised,” in chalk on the sidewalk outside of City Hall in Orlando. The Orlando police claim they asked Mr. Osmar to stop “defacing” the sidewalk and even checked with the department’s legal advisor before arresting him for violating a city ordinance.
After posting bail, Mr. Osmar, undeterred, returned to the scene of the “crime” on December 22, chalking, “All I want for Christmas is a revolution.” Mr. Osmar was arrested again (video); this time the judge was annoyed with the unrepentant scribbler and refused to set a bail amount. Mr. Osmar sat in jail for 18 days before retaining attorney Dick Wilson, a former chairman of the First Amendment Lawyers Association, to represent him.
Whether or not as a result of Mr. Osmar’s new representation, I can’t say, but the Orlando prosecutors then decided not to pursue the case, dismissing both charges and stating that the time Mr. Osmar had already served in jail was an “appropriate punishment.” (Indeed, some might say 18 days was a disproportionate punishment.)
In any case, the prosecutors probably felt confident that they wouldn’t be seeing Mr. Omar’s thoughts on the sidewalks of Orlando again. They were wrong.
Mere hours after his release, Mr. Osmar wrote chalk messages on the sidewalks outside the courthouse, and then more outside City Hall. “I am ready and willing, after a bit of a breather, to do it all again,” Mr. Osmar said. “I would really look forward to challenging this in court, to striking the ordinance so people can express themselves with chalk on the sidewalk.”
Mr. Wilson, advocating for his determined client, told the Orlando Sentinel that Mr. Osmar’s arrests were a clear violation of his First Amendment rights, and the newspaper left it at that. LASIS investigated.
The City Code of the City of Orlando §43.71 makes it unlawful for “any person to write, print, mark, paint, stamp or paste any sign, notice or advertisement upon the surface of any sidewalk or paved street in the City.” It is a misdemeanor crime, punishable with up to 60 days in jail and a $500 fine.
Although the Orlando Mayor’s office claims that this ordinance “clearly outlaws” writing in chalk on the sidewalk, the City Code only outlaws the writing of “sign, notice or advertisement” on the sidewalk. Can protest messages written in chalk be considered a “sign, notice or advertisement?” If not, Mr. Osmar and other prospective “chalk-upiers” cannot be lawfully arrested under the City Code.
Although not defined in this particular section, elsewhere in the Code, the term “sign,” is defined to include, “any…reading matter…placed…to convey information visually…for the attraction of the public to any…subject.” And although it is not defined in the Code at all, Merriam-Webster defines “advertising” as “the action of calling something to the attention of the public.” With these definitions, it seems that the Orlando ordinance likely criminalizes writing any sort of message on public sidewalks and streets without prior approval of city.
Of course, this sounds absurd. As Orlando Sentinel columnist Scott Maxwell points out, interpreted this way, every little Joey and Janie who draw on the sidewalks outside their house with chalk would be a criminal. In legal speak, this problem is called overbreadth. Any law that regulates a substantial amount of protected speech – even if it also regulates some unprotected speech – is unconstitutionally overbroad.
But while there is no doubt that all chalk messages constitute expressive conduct which implicate the First Amendment, the right to write in chalk is not absolute – sorry Joey; sorry Janie.
The Supreme Court has explained that the government may regulate the “time, place and manner” in which people express themselves. When a law restricts speech based on the time, place or manner of expression, rather than the content of the message, the government need only have a “significant interest” in limiting speech and leave open “alternative channels of communication.”
Arguably, the city has been selectively enforcing the ordinance based on the content of the chalk message, a no-no, constitutionally speaking. After all, Mr. Osmar’s arrests for his political dissent in chalk were the only times to date that the City Code has been employed to criminalize chalking. In fact, in 2009, the Orlando Chamber of Commerce encouraged businesses to violate the ordinance by “chalking up” their sidewalks and entryways in support of Orlando’s NBA team. But winning this argument will prove difficult.
In 2009, a federal court in Washington D.C., concluded that pro-choice protesters could be prohibited from chalking the plaza in front of the White House, even though chalk messages had been permitted elsewhere in the capital. Without evidence that other messages had been permitted to be chalked in front of the White House, it could not be established that the government was selectively enforcing its rules in favor of certain messages. Similarly, a court would not conclude that Orlando selectively enforced its ordinance without evidence that other chalk writings – whether they be in support of the city’s NBA team or just a child’s hopscotch game – were expressly permitted outside of City Hall. This evidence likely does not exist.
That leaves challengers of the constitutionality of the Orlando ordinance with just two potential arguments: either there is no “significant interest” in enforcing the ordinance or it fails to leave open “alternative ways to communicate.”
Cities have significant interests in maintaining the esthetic value of its public spaces. In 1984, the Supreme Court held in City Counsel v. Taxpayer for Vincent that the City of Los Angeles had a significant interest in maintaining the esthetic appearance of its public spaces by prohibiting the posting of signs on public property. Federal courts in Washington D.C. and New York have specifically held that cities have a significant interest in preventing chalked messages from harming the esthetic value of public spaces. A court evaluating the constitutionality of the Orlando ordinance would most likely conclude that the city had a significant interest in preventing the area around City Hall from being overrun with chalk messages.
Lastly, it is clear that occupiers, like Mr. Osmar, have ample alternative channels of communication for their message. In 1984, the Supreme Court held in Clark v. Community for Creative Nonviolence that a regulation prohibiting sleeping overnight in the National Mall was a reasonable time, place and manner restriction on free speech. The Court explained that although the protesters were unable to convey their message in the precise way they intended – camping overnight to demonstrate the homelessness epidemic – the ordinance left open ample ways to convey the same message to the public. Similarly, an Occupy Orlando protester may hold signs, organize marches or communicate their message in any of the other creative ways the Occupy movement has used.
So Mr. Osmar is out of luck on the chalk front. But nobody’s stopping him from protesting. Indeed, as Orlando City Attorney Mayanne Down has suggested, “there are better ways to protest. Why not hold a sign?”