ACLU Urges Miami Officials to Revise Unconstitutional Ordinance Aimed at Limiting Protest During Free Trade Meetings

FOR IMMEDIATE RELEASE

MIAMI – Saying a proposed City of Miami protest ordinance that “”criminalizes objects instead of actions”” is an unconstitutional restraint on speech, the American Civil Liberties Union of Florida today sent a letter urging city officials to redraft the ordinance to comply with constitutional free speech protections.

The ACLU sent the letter to members of the Miami City Commission today in response to a proposed ordinance on “”Parade and Assembly Prohibitions”” that essentially criminalizes objects instead of actions by banning materials that are widely used to make props for protests. The ordinance was passed in anticipation of protests during the Free Trade Area of the Americas meetings to be held here next month.

“”Holding a sign that says ‘McDonald’s exploits workers for profits’ hardly conveys the message as well as a 12-foot-tall Ronald McDonald holding large bags of money,”” the ACLU said in its memo to commissioners. “”Materials criminalized by these provisions make it impossible to make such props.””

The proposed ordinance also criminalizes the wearing of “”any gas mask or similar device designed to filter all air breathed.”” The ACLU said that ban would include surgical masks and bandanas, among other things.

“”Many individuals who engage in protest against free trade do so because of their belief that free trade has a detrimental effect upon the environment,”” the ACLU memo said. “”It is one thing to hold a placard that says ‘FTAA harmful to the environment’ and quite another to see 50 protesters marching in unison, all wearing gas masks to protest harm to the environment. The masks themselves express more than mere words and the wearing of such masks if fully protected by the First Amendment.””

The full text of the letter and memo follows.

September 24, 2003

Via Facsimile

Members, City of Miami City Commission
Mayor, City of Miami
City Manager, City of Miami
Police Chief, City of Miami Police Department
City Attorney, City of Miami

3500 Pan American Drive
Miami, FL 33133

Gentlemen:

We are writing to express our concerns regarding City of Miami Ordinance 54-6.1, which will go before the City of Miami City Commission for second reading on Thursday, September 25, 2003 (the “proposed ordinance”). The proposed ordinance is an unconstitutional restraint on speech and, if applied to every protest, demonstration and assembly it would bring the civic life of this City to a screeching halt and would effectively obliterate the First Amendment in this Community. Sadly, we are certain that you gentlemen know this. That is why the Commission unanimously approved an amendment which would sunset the proposed ordinance on November 27, 2003. That is also why the Commission stated that it was its intent to use this ordinance to target those who wish to protest the FTAA.

In addition to being unconstitutional, the proposed ordinance is bad public policy. Whether intentionally or not, if it passes this proposed ordinance, the Commission will needlessly puts at risk the lives and safety of our City of Miami police officers who will be on the ground policing the FTAA protests. This unfair, unconstitutional ordinance which specifically targets FTAA protesters, rather than assisting the policing function, does nothing more than inflame the passions of protesters who will surely hold those on the ground, the men and women in a police uniform, responsible for the actions of the City of Miami Commission. Members of the Commission will not be on the ground; will not be risking their lives; and will not be asked to keep the peace when thousands of protesters begin walking our streets. However, we know that they are mindful of those who will risk their lives.

Let us be clear here. The ACLU does not endorse or condone violence because the First Amendment does not protect those who engage in violence. Law enforcement therefore has both the right and the obligation to arrest all persons who engage in violence or who attempt to engage in violence. Law enforcement does not need this proposed ordinance to arrest those who engage in violence or who attempt to engage in violence.

In the interest of protecting the First Amendment rights of all of those involved, we are attaching our memorandum which sets forth in detail the problems with the proposed ordinance.

Thank you for your attention to this matter.

Very truly yours,

Lida Rodriguez-Taseff
President, ACLU, Greater Miami Chapter

Randall C. Marshall
Legal Director, ACLU of Florida

cc: Jorge Arrizurieta, Exec. Dir./COO/ Florida FTAA, Inc.
Ambassador Luis Lauredo, Exec. Dir./Miami 2003 FTAA, Inc.

Memorandum

TO:
Members, City of Miami City Commission
Mayor, City of Miami
City Manager, City of Miami
Police Chief, City of Miami Police Department
City Attorney, City of Miami

FROM:
Lida Rodriguez-Taseff, President – Greater Miami Chapter of the ACLU of Florida
Randall C. Marshall, Legal Director, ACLU of Florida

RE: Proposed Ordinance amending Chapter 54 – Streets and Sidewalks

DATE: September 24, 2003

___________________________________

There are legitimate security concerns raised by the anticipated protests during the Free Trade Area of the Americas (“”FTAA””) meetings in Miami in November and no one suggests that criminally violent acts are constitutionally protected. However the approach of the ordinance – criminalizing objects instead of actions – is fundamentally flawed and there are numerous legal problems raised by the proposed amendments. We bring but a few of these items to your attention in an effort to avoid litigation over the constitutionality of the amendments as passed upon first reading. Rather than focus on specific anticipated protests, the City would be well served to send the ordinance back to the drawing board with directions to the Law Department to address legitimate concerns in a manner that will comport with the First Amendment.

I. The proposed amendments are content based and thus in violation of the First Amendment.

Although originally proposed as time, place, and manner restrictions that would apply equally to all covered events within the City of Miami, by limiting the duration of the amendments to specifically target the anticipated FTAA protests in November, the City Commission is singling out one event. In effect, the amendments create one set of rules for the FTAA protests and another set of rules for other protests. In doing so, the City will run afoul of the First Amendment by enacting regulations based upon the content of the speech engaged in by the protesters. This is particularly aggravated by the fact that the City of Miami Police Department is on record as saying that fully 98% of the protesters are expected to be law abiding, non-violent protesters. In order to address anticipated criminal actions by a few, the City will be limiting the First Amendment rights of the vast majority of peaceful participants.

II. The proposed amendments are poorly drafted.

In a rush to get something enacted, the Law Department has done the Commission a grave disservice. The most glaring example of poor draftsmanship starts with the very beginning of the proposed amendments.

The title of new section 54-6.1 is “”Parade and Assembly Prohibitions.”” The definitional section then goes on to define “”parade”” and “”assembly,”” both of which include a “”demonstration.”” However, part (b) then applies the ordinances prohibitions only to “”parades and demonstrations.”” Because criminal statutes are to be strictly construed, the prohibitions may not apply to any assembly other than a demonstration. Thus, for example, many events during the FTAA may be classified as meetings, picket lines, rallies, or gatherings which are not covered by the prohibitions and leave the City exposed to litigation if the ordinance is wrongly applied.

III. The prohibitions are overbroad in their scope and ban legitimate, expressive activities protected by the First Amendment.

Because the ordinance sweeps too far in its scope to include protected speech, it is overbroad and in violation of the First Amendment. Instead of making actions unlawful, the ordinance criminalizes the possession or carrying of many legitimate, expressive objects, with no regard for the First Amendment. There are numerous examples throughout the prohibitions.

(b)(3) and (b)(4) criminalizes the use of many materials that are widely used to make props for use in protests. For example, protests often contain large, elaborate objects that serve as a visual representation of the message. Holding a sign that says “”McDonalds exploits workers for profits”” hardly conveys the message as well as a 12 foot tall Ronald McDonald holding large bags of money. Materials criminalized by these provisions make it impossible to make such props.

(b)(11) criminalizes the carrying, possession or wearing of “”any gas mask or similar device designed to filter all air breathed.”” That would include surgical masks and bandanas, among other things. Many individuals who engage in protest against free trade do so because of their belief that free trade has a detrimental effect upon the environment. It is one thing to hold a placard that says “”FTAA harmful to the environment”” and quite another to see 50 protesters marching in unison, all wearing gas masks to protest harm to the environment. The masks themselves express more than mere words and the wearing of such masks is fully protected by the First Amendment.

(b)(12) similarly criminalizes the carrying, possession or wearing of “”a bulletproof vest.”” Because of police actions and reactions around the world to protests, many protesters engage in protest at these events to bring to light what they perceive as police misconduct. Again, it is one thing to hold a sign that says “”police use excessive force against protesters”” but quite another to see 50 protesters marching in unison with bulletproof vests prominently displayed. The Commission should take a page from the state statute mentioned. See Fla. Stat. 775.046: “”A person is guilty of the unlawful wearing of a bulletproof vest when, acting alone or with one or more other persons and while possessing a firearm, he or she commits or attempts to commit any murder, sexual battery, robbery, burglary, arson, aggravated assault, aggravated battery, kidnapping, escape, breaking and entering with intent to commit a felony, or aircraft piracy and, in the course of and in furtherance of any such crime, he or she wears a bulletproof vest.”” In other words, it is the wearing of a vest for the purpose of engaging in otherwise criminal activities for the very purpose of aiding the commission of the crime, not simply the wearing of a protective device.

Either intentionally, or as a result of careless drafting, section (b)(2) criminalizes the use of any “”sign, poster, plaque or notice”” that is made out of plastic – a material utilized frequently for those purposes.

The list could go on and on but it is clear that legitimate, lawful activities which are protected by the First Amendment are made criminal under the ordinance.

IV. Some sections are vague and vest police officers with unfettered discretion.

Criminal statutes must be clear enough to give fair warning to the public as to what is prohibited. Parts of the ordinance fail to do so. For example, while (b)(1) provides a specific list of prohibited objects, it also provides a catch-all provision that permits an officer to designate virtually any object as unlawful. Similarly (b)(7) and (b)(8) grants total discretion to officers to decide what materials or devices that can be thrown or utilized as a projectile. Indeed, one “”weapon”” utilized at the Los Van Van concert in Miami was a full Coke can, an object perhaps capable of being declared unlawful by a police officer under this ordinance but arguably specifically permitted under (b)(10)(“”liquids designed and intended for human consumption””). This again points out a fundamental flaw in the ordinance’s approach: rather than criminalize acts, it criminalizes objects.

V. The provisions will not be uniformly applied as they are directed to one series of protests.

Although these amendments are aimed at the anticipated FTAA protests, their enforcement (if done evenhandedly) would ban many other forms of protected expression. For example, if the Florida Marlins win the pennant and there is a parade within the City of Miami, it would be a criminal offense for any team member to carry or possess a baseball or bat while in the parade. See (b)(1) and (b)(7). It is clear that the police would not enforce the ordinance against that type of activity. But the fact that they would not underscores the constitutional problems created by the ordinance. In addition, selective enforcement of the laws breeds contempt against the City of Miami Police Department.

V. Conclusion.

The ordinance as drafted and as passed upon first reading has serious constitutional flaws and approaches security concerns raised by parades and assemblies in a flawed manner. We urge the Commission to send the ordinance back to the drawing board with directions to the Law Department to address the constitutional concerns raised by the proposed ordinance.