ORLANDO (CN) – A federal judge said police officers violated free-speech rights by arresting an Occupy Orlando participant for writing political messages on the sidewalk outside City Hall.
Occupiers can write on city sidewalk to express political messages because the messages are not advertisements or public notices, and they are not permanent, U.S. Magistrate Judge David Baker said.
Orlando arrested Timothy Osmar twice in December 2011 for writing with chalk on the sidewalk outside City Hall.
The first arrest, on Dec. 15, occurred after Osmar ignored officers’ orders to stop writing his messages. The second arrest occurred after Osmar returned to the plaza on Dec. 22 and wrote, “All I want for Christmas is a Revolution #Occupy.”
In a lawsuit against the city, Osmar claimed officers had applied the law against sidewalk defacement unconstitutionally to suppress his political speech activities. No other person has been arrested or charged under the law since it came into effect in 1985, Osmar claimed.
Baker ruled for Osmar earlier this month after holding a trial in March. The 10-page decision notes that Orlando let people write on the sidewalk at and near the City Hall plaza for a Rotary Club sidewalk art contest, and no one was arrested.
Also, the mayor’s office encouraged downtown businesses to decorate the sidewalks outside their main entrances in 2009 to showcase team spirit and pride for the Orlando Magic during the playoffs. No one was arrested then either.
Concluding that the sidewalk outside the City Hall plaza is a public forum, the court said it can be used for free speech with reasonable restrictions.
Section 43.71, the law applied against Osmar, does not ban all graffiti or all messages on sidewalks. Rather it is limited to “advertising matter,” targeting commercial speech and language.
Under the heading “Writing or Painting Advertising Matter on Streets and Sidewalks,” the law says that “it shall be unlawful for any person to write, print, mark, paint, stamp or paste any sign, notice or advertisement upon the surface of any sidewalk or paved street in the city.”
Baker found that the ordinance had been improperly and unconstitutionally used against Osmar.
The code does not apply to Osmar’s message, and the arrest violated his First Amendment right to free speech. The message was not a painting or sign, not was it permanent or long-lasting.
The city cannot selectively interpret or enforce its own desire to further the causes of particular favored speakers, according to the decision. It cannot selectively enforce a law based on an unpopular or minority viewpoint, while encouraging other groups to participate in the same conduct.
Victory was short-lived for the movement, however, since a different federal judge threw out a lawsuit by Occupy Jacksonville protesters just a few days later.
Occupy demonstrators had claimed that Jacksonville intends to confiscate signs and other displays they placed outside City Hall. But the city countered that the case was moot since the occupiers ended their protest.
U.S. District Judge Roy Dalton agreed and dismissed the complaint.
Occupy Jacksonville protestors said in a post on their website that they voluntarily ended the demonstration on March 3 because “an overwhelming majority of Occupy Jacksonville members felt that it was time for Occupy Jacksonville to evolve to a new stage in [the] struggle for political, social and economic justice.”
Protestors vacated the sidewalk in front of Jacksonville City Hall before their motion for an injunction could be heard, and the court said protesters have not submitted any proof of future protests there.
“Although Occupy asserts that they intend to continue protesting, the court does not know when they will protest, where they will protest, or how they will protest,” Dalton wrote, dismissing the case without prejudice.