A federal judge in San Diego has blocked the city from enforcing a 1895 law that bans offensive and disorderly conduct in public places, ruling that a First Amendment legal challenge is likely to succeed in showing that the law is “unconstitutionally vague and overbroad.”
The ruling by U.S. District Judge Barry “Ted” Moskowitz came in a lawsuit filed by San Diego street artist and busker William Dorsett, who was convicted of violating the ordinance — San Diego Municipal Code 56.27 — for filming and criticizing a Balboa Park ranger during the ranger’s interaction with another artist. The ranger alleged that Dorsett had interfered and obstructed him from performing his law enforcement duties.
Dorsett’s conviction, which resulted in a $150 fine, was later reversed by three judges from San Diego Superior Court’s appellate division, who concluded that “(Dorsett’s) conduct was protected by the First Amendment.” In a concurring opinion, one judge wrote that given the law’s similarities to a Texas ordinance the U.S. Supreme Court held was unconstitutional, “it appears that (the San Diego law) should be declared unconstitutional on its face as well.”
San Diego City Attorney Mara Elliott’s office did not oppose Dorsett’s appeal, instead agreeing that he was improperly convicted and that his conduct was First Amendment protected. A senior deputy city attorney wrote in January that Dorsett, like the plaintiff in the Texas case, “was merely exercising his right to verbally protest and challenge law enforcement’s decision to detain his friend.”
But in a twist, the City Attorney’s Office changed course when it came time to defend Dorsett’s federal challenge of the law’s constitutionality, arguing that “words can constitute interference with the duties of a law enforcement officer” and that the First Amendment doesn’t apply to Dorsett’s actions the day he was cited in Balboa Park.
“The City will show that Plaintiff does not have a First Amendment right to obstruct a Park Ranger from carrying out his official duties,” the city argued in a motion to dismiss the case.
Moskowitz on Monday denied that motion and instead granted Dorsett’s motion for a preliminary injunction, meaning the city can’t enforce the ordinance while the case moves forward. He wrote that the law in question “prohibits a substantial amount of constitutionally protected speech and amounts to little more than a prohibition on ‘annoying’ or ‘inappropriate’ speech and conduct. The First Amendment precludes such a prohibition.”
Dorsett said Friday that he was “extremely grateful” for the judge’s decision. “It was extremely important to get that tool taken away from law enforcement,” Dorsett said.
William Dorsett, a street artist, is suing the city of San Diego over a disorderly conduct law that he says is outdated and unconstitutional. (Courtesy of William Dorsett)
It’s unclear how often the city issues citations for violations of Municipal Code 56.27. But Michele McKenzie, one of Dorsett’s attorneys, said her firm was “aware of a number of other buskers and visitors to San Diego’s public spaces” who have been cited, or threatened with citation, for violating the …read more
Source:: The Mercury News – Entertainment
