Actually, Chalk it Up to Free Speech
In January, LASIS reporter Russell Smith wrote that Occupy activist Timothy Osmar would not prevail on a first amendment claim that he had a right to scrawl chalk messages outside of a City Hall in Orlando, Florida. While Mr. Osmar’s 18-days behind bars was absurd, Mr. Smith wrote, the City had acted in accordance with the law.
Well, Mr. Osmar sued the City anyway, alleging that his arrest was unlawful and in violation of his freedom of speech. And guess what — he won.
On Friday, U.S. Magistrate Judge David A. Baker ruled that Mr. Osmar’s actions were clearly protected by the first amendment. The decision means that the City will be required to compensate Mr. Osmar for both his wrongful imprisonment and attorneys’ fees.
Mr. Smith’s article expressed doubt that Mr. Osmar would be able to prove that the City selectively enforced the ordinance prohibiting “writing advertising matter of sidewalks” based on political nature of his message. To do so, we explained, Mr. Osmar would need evidence that the City had not come down when chalking other, non political, messages on the plaza outside City Hall. Fat chance of that evidence existing, we thought.
But as it turned out, such evidence exists, and it shows that for several years the City had blessed a Rotary Club’s chalk-art festival on the same plaza outside City Hall. Judge Baker seized on this point in his decision, concluding that “the city may not selectively interpret and enforce the ordinance based on its own desire to further the causes of particular favored speakers.”
At the start of the case, the City hired the Orlando law firm Akerman Senterfitt & Eidson – at least in part because of the firm’s appellate expertise and this case’s likelihood for appeals. But since the firm charges upwards of $625 an hour for its services, perhaps the City would be wise to read the writing on the –er – sidewalk, and just let things be.
In any case, this is the first time LASIS made an incorrect prediction. And we like Judge Baker’s ruling. We hope the decision stands.