FREE SPEECH DEBATE

Chalk talk on Defiance sidewalks under siege

9/27/2013

DEFIANCE — Even a message written in chalk on a public sidewalk is protected free speech, the American Civil Liberties Union of Ohio said Thursday as it warned the city of Defiance against cracking down on political sidewalk-talk this Halloween.

The threat of potentially “expensive and time-consuming litigation” stems from the city’s decision last year to enforce an ordinance about damaging or disfiguring public sidewalks against Occupy Defiance protesters.

“No matter which ordinance you may believe Occupy defied, prohibiting them from writing on the sidewalk with extremely temporary, water soluble chalk … violates the First Amendment,” James L. Hardman, ACLU Ohio’s legal director, wrote in a letter to the city. “Indeed, it is a content-based restriction of political speech for which the city lacks a compelling governmental interest.”

He wrote that content discrimination was evident in that the ordinances were not enforced later against children depicted in a newspaper photograph as they drew pictures in chalk on sidewalks.

City Law Director David H. Williams said he believes the entire situation has been overblown. He said it was based on a misunderstanding that ended up in a police report saying that the political content of the writings was the reason it was stopped.

But he said if anyone insists on using public pavement as his personal blackboard, he will be stopped and possibly cited.

Last year, on the night before the city’s annual Halloween parade, members of the Occupy Defiance movement wrote messages on city sidewalks. They had apparently received permission from the chief of police at a time when he was distracted with preparations for a visit by then presidential candidate Mitt Romney, Mr. Williams said.

But when a police officer saw the group gathered late at night, he investigated. After conferring with a supervisor, he stopped the activity without issuing any citations. The reference to political messages ended up in his report, but Mr. Williams said that the content of the message has nothing to do with the ordinance.

“Nobody here paid enough attention to those messages to document what they were,” he said. “We have ordinances that prohibit people from painting or defacing the streets and prohibit attaching handbills to telephone poles.

“You can say what you want in a public right-of-way, but you can’t appropriate the pavement as your blackboard,” he said. “The officer, once he realized they were just writing on the sidewalk in chalk and that they weren’t casing the adjacent jewelry store, didn’t know what to do.”

No one was ticketed, and the messages weren’t erased. But the laws stand, and people are on notice that they could be cited if they engage in sidewalk writing, Mr. Williams said.

“They can say whatever they want,” he said. “They can put it on a sign and carry the sign like any other picketer. If they want to post a sign, and the owner of the adjacent property doesn’t object, we don’t have anything to say about it. But they can’t appropriate a public asset to use for their own purposes.”

But Drew Dennis, ACLU of Ohio staff attorney, called it “blatantly unconstitutional.”

“It is absurd to argue that writing words on a sidewalk — using temporary chalk that washes away the first time it rains — is illegal vandalism, while drawing pictures on the same sidewalk with the same chalk is considered perfectly fine,” he said.

Mr. Williams, however, said there’s a difference between enforcing the law against adults for activity a police officer personally witnessed and enforcing it against “preschool children” whose picture showed up later in a newspaper.

Contact Jim Provance at: jprovance@theblade.com or 614-221-0496.