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City of San Antonio to gag political speech in proposed change to ordinance

City’s hypocrisy seen in “Vagina Monologues” banner being hung, yet it denied toll road/recall banners for being too “controversial”

San Antonio, TX, January 29, 2009 – Today, the San Antonio City Council will consider a change (agenda item #21: http://epay.sanantonio.gov/agendabuilder/RFCAMemo.aspx?RId=4480 ) that would gag political speech in its street banner ordinance in response to TURF’s lawsuit over the City’s approval then abrupt denial of two street banners.

TURF filed suit against the City in United States District Court on December 2, 2008 for infringing upon its free speech for denying two street banners: one announcing a recall petition drive involving District 8 Councilwoman Diane Cibrian that directed citizens to a recall web site (www.RecallDiane.com) and another announcing a web site www.281OverpassesNow.com with non-toll solutions to fix Hwy 281 N.

This proposed change in ordinance is a direct response to the litigation still pending before the court. The City’s Development Services Department brief submitted to the Council for this agenda item by Director Rod Sanchez makes legal claims that remain an open question before the court. Whether or not the space above streets and between utility poles is a traditional public forum or not and whether or not the City can restrict free speech in this forum is not a settled matter. Judge Xavier Rodriguez’ ruling (http://www.texasturf.org/images/stories/pdf/legal/ORDER-denying-TRO.pdf) even states that the plaintiffs may prevail.

“To make changes to the ordinance prior to any final action by the court is beyond the pale. The Judge stated in his first ruling that ‘…There is a distinct possibility that the plaintiffs may ultimately prevail on the claim that the ordinance violates the First Amendment as applied to them…’ so for the City to act now is entirely premature and may invite further First Amendment challenges over the blatant restriction of free speech in this forum.

”Protecting political speech and the right to dissent in a public forum was the primary purpose of the First Amendment. This case has enormous implications for future First Amendment rights over public streets. We’re urging the City to pull this agenda item until the litigation is settled and we ask that Councilwoman Diane Cibrian recuse herself from any action on this agenda item since one of the banners involved a recall of the Councilwoman,” states a concerned Terri Hall, TURF Founder and Director.

Then, in a turn of events that can only be construed as a double standard, the City at this very moment has granted a permit for a banner emblazoned with “Vagina Monologues” (see photo here) that’s hanging above Alamo Street near Durango, yet the same entity denied TURF’s banner about toll roads and a recall campaign for being what it claimed was too “controversial.”

“Isn’t ‘Vagina Monologues’ controversial if not more so than toll roads? Some might call it outright offensive or even obscene speech. This unequal application of the ordinance bolsters our claim that the City is discriminating against TURF based on the content of its banner and suggests the City is blatantly suppressing TURF’s message while giving other controversial messages a free pass,” notes Hall.

For background on the case: http://texasturf.org/index.php?option=com_content&task=view&id=602&Itemid=26

See complete text of comments submitted to the City Council below:

To be read prior to any vote on Agenda Item #21 regarding changes to the City Code for Street Banners

Submitted by Terri Hall, Founder of Texans Uniting for Reform and Freedom (TURF), a non-profit, all-volunteer, grassroots group promoting non-toll transportation solutions

Public comment on First Amendment Street Banner concerns

This agenda item is a direct response to a lawsuit filed by TURF challenging the City Development Services Department’s denial of permits for (2) TURF street banners under the current ordinance which reads: temporary signs “…must advertise or promote a non-commercial, not for private profit event, a charitable community drive, or a community announcement.”

This case is still in litigation and it is beyond the pale to make changes to this ordinance until the case is settled. Whether or not the City can restrict free speech based on content in this forum is an open question before the court that ought to be fully considered prior to any changes in the City code.

United States Judge Xavier Rodriguez states in his initial ruling: “Given the lack of definitions or limiting terms in the Code and the placement of decision-making authority in the director of development services, the ordinance appears to allow virtually unfettered discretion in the director to determine what qualifies as a ‘community announcement.’ Standing alone, this evidence would suggest that the ordinance is constitutionally problematic because that amount of discretion seems unreasonable in light of the nature of the forum and could permit the director to make decisions based on viewpoint.

“…There is a distinct possibility that the plaintiffs may ultimately prevail on the claim that the ordinance violates the First Amendment as applied to them…”

Whether or not the space above streets and between utility poles is a traditional public forum or not is an open question before the court where the plaintiffs may prevail. In the brief by Mr. Sanchez, he tries to claim the City has consistently shut out political speech. Yet based on the blatantly contradictory testimony in the case, it is NOT clear as to whether or not a consistent application of the ordinance has been applied since the City approved the banners knowing the content only to later deny them after much deliberation and confusion ensued about whether or not the banners were permissible under the code.

When the City denied the banners it stated TURF didn’t meet “the category and definition” only to later claim in court documents that the message of the banners is “controversial,” and therefore the legal basis for its denial. However, the statute gives the City no such authority to deny permits based on content, which violates of the citizens’ First Amendment rights in the U.S. Constitution.

Then, in a turn of events that can only be construed as a double standard, the City at this very moment has granted a permit for a banner emblazoned with “Vagina Monologues” (see photo here) that’s hanging above Alamo Street near Durango, yet the same entity denied TURF’s banner about toll roads and a recall campaign, which the City approved and then later denied for being what it claimed was too controversial! Isn’t “Vagina Monologues” controversial if not more so than toll roads?! Some might call it outright offensive or even vulgar and obscene speech. This unequal application of the ordinance bolsters our claim that the City is discriminating against TURF based on the content of its banner and suggests the City is blatantly suppressing TURF’s message while giving other controversial messages a free pass.

The City of San Antonio seems to lack the proper respect for Free Speech and the fair treatment of ALL groups, regardless of their make-up or message. The City denied TURF’s banners simply because it disagrees with the message of toll opponents. We the people own the public right of way, and the First Amendment protects the citizens from government gag orders on speech, particularly political speech.

First, we ask that this agenda be pulled and that any changes to the ordinance occur after the lawsuit is settled and the public is allowed to fully weigh-in on this crucial Free Speech issue. Second, Councilwoman Diane Cibrian should recuse herself from any action relating to this item since one of the banners involves a recall campaign for the councilwoman.

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