The American Civil Liberties Union of Ohio filed a federal lawsuit Tuesday over the right to write — in chalk.
The suit was filed in U.S. District Court, Toledo, on behalf of Occupy Defiance and three of the group’s members against the city of Defiance. It contends the city’s opposition to sidewalk messages written in chalk is unconstitutional.
The legal action stems from an incident nearly a year ago in which members of the local Occupy group, related to a national movement protesting corporate corruption, wrote temporary chalk messages on public sidewalks before a Halloween parade. Police stopped members from continuing. No citations were given, but city Law Director David Williams has maintained such sidewalk writing is not permitted under city ordinance.
The ACLU of Ohio contends that barring sidewalk messages written in “temporary, water-soluble chalk” violates the right to free speech.
The suit asks for 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 Thursday.
“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.”
Drew Dennis, the organization's staff attorney, could not be reached for comment.
Mr. 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 Mr. 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.
Mr. 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,” Mr. 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 Mr. Williams, Mayor Robert Armstrong, and city Administrator Jeff Leonard as defendants in their capacities as city officials.
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