On Tuesday, the American Civil Liberties Union of Ohio filed a federal lawsuit against the city of Defiance, alleging that the city’s enforcement of a policy banning temporary chalk messages on public sidewalks violates the First Amendment.
In September, the ACLU sent a letter to city leaders, warning them that their policy was unconstitutional. The group said a reply from Defiance Law Director David Williams made it clear that the city had no intention of reconsidering the policy, making litigation necessary.
(NOTE: To read the lawsuit, scroll down to the end of this story and click on the PDF link.)
“To put it simply, city officials are using ordinances and permit schemes to control who is allowed to chalk on public sidewalks—and who is not—based on their own whims,” said ACLU of Ohio Staff Attorney Drew Dennis. “This contradicts the core principles of the First Amendment.”
The city first made news during the 2012 Halloween season when police ordered local members of the Occupy movement to stop writing on public sidewalks with temporary chalk because their speech was political in nature and the group did not have a permit.
Faced with evidence that others had been allowed to chalk the sidewalks without incident, the city crafted a new legal opinion stating that chalk ‘drawings’ are legal because they use pictures, while chalk ‘writings’ that use words are against the law unless the city has granted a permit.
The ACLU lawsuit points out that there is no constitutional justification for singling out chalk words for extra scrutiny. The suit also claims that the city’s permit process gives the local government “unbridled authority” to approve or deny permits based on how they feel about the applicants message.
“It is clear what is happening here. The city has combined a series of convoluted legal arguments with a permit scheme to make it illegal for people to express their message in chalk unless the government approves of that message,” said Dennis. “The city has been given multiple opportunities to acknowledge and correct this problem. Unfortunately, they have chosen costly and time-consuming litigation instead.”
The federal lawsuit seeks a judgment declaring the right to engage in such activities “without being subjected to arbitrary arrests and prosecutions,” preliminary and permanent injunctions ordering the city to stop using and enforcing pertinent city ordinances, as well as unspecified monetary damages plus attorney fees and costs.
The group wants to hold another “chalk walk” event today.
“The problem here really is that city officials are using the ordinances to control who is allowed to chalk on public sidewalks and most importantly who is not,” said ACLU of Ohio spokesman Nick Worner. “The First Amendment applies to everyone.”
Williams said late Tuesday that he received a copy of the suit from a media outlet, and hadn’t finished reading it yet.
“They served the press rather than us,” he said. “It pretty much tells me that this whole thing is aimed at publicity.”
Last month, the ACLU of Ohio sent Williams a letter expressing its concern with the city’s sidewalk chalk stance.
Mr. Williams replied in a letter that Occupy Defiance may assemble on public property and express itself in writing using signs made from their own materials.
The group “may not appropriate the pavement as its blackboard,” he wrote.
The plaintiffs argue a city ordinance prohibiting sidewalk defacement or disfigurement “by painting on the sidewalk names, words, or advertisements” doesn’t apply to the use of chalk, which is temporary.
“Further, the defendant’s decision to prevent the chalking of words only is a form of content-based discrimination in violation of the First Amendment,” the suit states.
The suit alleges the ordinance has been applied in a discriminatory manner because the rules were not enforced against children whose sidewalk chalk drawings were shown in a local newspaper photograph earlier this year.
Williams said there are “several differences” between the two examples of sidewalk chalking, including that “you don’t enforce the law against preschool children” and that police had “personal knowledge” of the Occupy group’s activity.
“We said over and over and over again — they can bring as many signs as they want to this parade, but we don’t want anybody to put temporary signs up in the right of way. If somebody wants to say that’s not content-neutral, they can, but I guess that’s what they built the courthouse for,” Williams said.
Individual members of Occupy Defiance named as plaintiffs in the suit are Jacob Gallmann of Defiance and Mara Watson and Joshua Lesniak, both of Napoleon.
In addition to the city, the lawsuit also names Williams, Mayor Robert Armstrong, and city Administrator Jeff Leonard as defendants in their capacities as city officials.
EDITOR'S NOTE: Vanessa McCray of The Blade, Toledo, Ohio (MCT) contributed to this story.