In the grand scheme of things, a federal lawsuit over the right to write in chalk on a public sidewalk might seem like much ado over nothing. A federal court lawsuit filed on behalf of Occupy Defiance might be a small matter, but it’s not a trivial one.
Any time government uses the power of the state — whether the federal government enjoins a newspaper article in the name of national security or a local official uses a city ordinance to stop political dissidents from writing ephemeral messages on a sidewalk — citizens have to take it seriously.
Freedom of expression and the protections afforded by the First Amendment are the foundations of a free society. As such, they must be zealously guarded.
The American Civil Liberties Union of Ohio contends, rightly, that the City of Defiance violated the Constitution in suppressing messages written in chalk nearly a year ago. Members of the local Occupy group, in support of a national movement protesting corporate corruption, wrote temporary messages on public sidewalks in the city before a Halloween parade.
Police stopped protesters from expressing themselves. Defiance law director David Williams maintains a city ordinance prohibits such sidewalk writing.
The ordinance prohibits sidewalk defacement or disfigurement, but it should not apply to the use of chalk, which does not deface or disfigure. It can be washed away with a hose, or the next rainfall.
It’s clear, as the ACLU argues, that the ordinance was applied in a discriminatory manner. The city did not enforce the rules against children whose sidewalk chalk drawings were shown in a local newspaper photograph this year.
Mr. Williams offers other specious arguments, noting that police had “personal knowledge” of the Occupy group’s activity — as if officers would have taken the same action had they had “personal knowledge” of the children’s drawings.
Mr. Williams says that laws aren’t enforced against preschool children, which is also untrue. Young children who smashed windows at a public library would have, properly, been stopped by authorities from doing further damage, even though they probably would not have been legally sanctioned.
Nor is it pertinent that the messages of political dissidents are more likely to disturb and provoke others than a child’s drawing. Innocuous or pleasant expressions need no constitutional protections; expressions and messages that disturb, offend, and provoke do.
Mr. Williams’ remarks — even if true — that the ACLU, seeking publicity, notified media of the suit rather than the city are irrelevant to its legal merits. Such disputes ought to be publicized.
Government and public officials have an unfortunate tendency to grab whatever power they can to suppress messages and ideas they don’t like. They need to be continually reminded that they are bound by — and answerable to — the Constitution, no matter how small the matter might seem.