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Dallas Retracts Its Highway Protest Ban

DALLAS (CN) - Weighing safety concerns against free speech lawsuits, Dallas repealed its controversial ban on protesters distracting motorists near highways and overpasses.

The Dallas City Council retracted the ordinance as part of Wednesday's consent agenda, one week after being briefed on the issue in closed session.

The repeal was requested by City Attorney Warren Ernst and the Dallas Police Department.

Enacted in January, the ordinance banned distracting conduct by protesters at 16 designated highways and their service roads. Violators faced criminal charges and up to $500 in fines.

The ordinance was passed in response to a 2013 protest near the George W. Bush Presidential Library at Southern Methodist University.

The city was sued that year in county court and later Federal Court by protesters who held signs at the intersection of Mockingbird Lane and the elevated service road of North Central Expressway. Protesters said they were cited under a predecessor ordinance that was unconstitutionally vague.

"Plaintiffs were all criminally cited by defendant for allegedly violating Dallas City Ordinance 28-158.1," the federal complaint stated . "However, some of the plaintiffs were actually cited under other Dallas city ordinances for either solicitation (also known as panhandling) or advertisement. It is undisputed that none of the plaintiffs were either soliciting or panhandling."

Police officials agreed that a change was needed, and asked for a new ordinance with new standards because the 75-foot limit was too difficult to enforce.

The new ordinance failed to prevent free speech litigation. An anti-Obama group, Overpasses for America, sued the city in Federal Court in August.

The group claimed its signs at a March protest at the Dallas North Tollway complied with city ordinances and were not tied to an overpass. It said there were no incidents and that the protest was organized in cooperation with police and Department of Homeland Security officials.

"Plaintiffs were looking forward to holding the free speech assembly on March 15, 2014 and garnered a positive anticipation for their event," Overpasses' complaint stated. "Plaintiffs, however, were informed that they would not be allowed to hold their free speech assembly because the Dallas Police Department was now obligated to enforce the City of Dallas' free speech ban."

Overpasses claimed that when the ordinance was passed in January, several council pointed out that the city had been sued twice already for "unnecessary" ordinances that infringe on citizens' free speech rights.

"A council member for the city of Dallas commented that the amendment at issue was 'an ordinance we don't need,'" Overpasses' complaint stated. "A council member for the city of Dallas also stated, relying upon information from the Department of Transportation for the State of Texas, that there is no data that there has ever been any safety issue due to free speech assemblies occurring on the City of Dallas' overpasses, let alone even evidence of a single traffic accident due to a free speech assembly in the city of Dallas. Despite this information, the city of Dallas passed the amendment and enacted its free speech ban."

City officials could not be reached for comment Wednesday evening.

Jerad Najvar, an attorney for Overpasses in Houston, said he is glad the council majority that approved the ordinance "now realizes its error."

Dallas may now move to dismiss his the lawsuit, but "there is no way to repair the damage when a person's speech rights are delayed or denied," Najvar said.

"The problem is that these concerns were raised before the ordinance was passed, and my clients' rights have been violated," he added Thursday. "The same council that passed this ordinance, ignoring free speech objections, would not have repealed it but for our lawsuit."

Navjar said the city is "certainly" on the hook for his clients' attorneys fees.

"People in government have an obligation to consider whether laws are constitutional before they are enacted, because not everyone is able to find a constitutional attorney," he added.

Follow @davejourno
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