San Diegan ticketed for criticizing police prevails in free speech case

SAN DIEGO (CN) — The city of San Diego violated the free speech rights of a local busker when he was ticketed and prosecuted for violating a local law prohibiting vulgar and offensive language in public spaces, a federal judge ruled on Friday.

“The Constitution protects Dorsett’s right to criticize law officers, but Section 56.27 allowed officers to cite him if his conduct or speech was in their view ‘offensive’ or ‘vulgar or indecent.’ The ordinance thus chilled a substantial amount of free speech and was unconstitutionally overbroad,” wrote U.S. District Judge Barry Ted Moskowitz, a Bill Clinton appointee, in his order.

As an artist, busker and self-described First Amendment rights activist, William J. Dorsett said he was asked by other buskers to come to San Diego’s famous Balboa Park to witness park rangers overzealously enforcing local anti-busking laws in June 2023.

At the park, Dorsett filmed a park ranger issuing a citation for an “environmental impact issue” to a man making bubbles out of dish soap for children.

In his complaint, Dorsett says the man said the citation wouldn’t stop him from returning and continuing his busking. Dorsett agreed with the man and told him not to let the ranger intimidate him because “they’re being bullies.”

After hearing the word “bullies,” the ranger turned to Dorsett and cited him under the city’s disorderly conduct ordinance, Dorsett says in his complaint.

The city’s ordinance, first passed in 1895, hasn’t been updated since 1903 “despite significant developments in First Amendment jurisprudence over the last 100 years,” Dorsett claims in his complaint.

Dorsett took the infraction to a bench trial, where — without appointed counsel for Dorsett — a judge using Black’s Law Dictionary’s definition of “disturbance” found Dorsett guilty of violating the law.

Dorsett then appealed the ruling. The court reversed and dismissed his conviction.

He then filed suit challenging the constitutionality of the ordinance.

“First, it was unconstitutionally vague,” Moskowitz wrote about the ordinance. “An ordinary and reasonable person would not know what conduct and speech was prohibited by the ordinance, and the ordinance gave too much discretion to law officers to decide who was in violation and should be prosecuted.”

Because city employees enforced an unconstitutional policy that violated Dorsett’s First Amendment rights, Moskowitz granted Dorsett’s motion for summary judgment on his Monell claim, a claim named after a 1978 Supreme Court case that found local governments can be held liable for constitutional violations caused by their policy, custom or practice.

The city repealed the vulgar language law earlier this year.

Since Dorsett didn’t provide the court with any evidence that the city would try to reenact the law, his request for the court to enjoin its enforcement is moot, Moskowitz wrote.

“The court will not enjoin the enforcement of a repealed law. Dorsett’s lawsuit — the impetus for the repeal of Section 56.27 — shows that any citizen can change the law through litigation,” Moskowitz wrote.

Representatives of the San Diego city attorney’s office declined to comment.

“As his counsel, I’m very pleased with the court’s order,” wrote Michele Akemi McKenzie of McKenzie Scott PC, Dorsett’s attorney, in an email. “The now-repealed, 130-year-old ordinance was used repeatedly by law enforcement in San Diego to punish constitutionally protected speech. It happened to Mr. Dorsett. It happened to dozens of other individuals within the city of San Diego over the last several years who voiced opinions critical of law enforcement. The Constitution simply does not permit people to be punished for voicing their opinions even if and especially when those opinions are not popular with those who enforce the laws. Mr. Dorsett is very happy that the court has acknowledged these critical freedoms. The protection of free speech, especially if that speech is critical of those in power, is imperative. Perhaps now more than ever.”

Dorsett is also a co-plaintiff in a case challenging San Diego’s laws regulating sidewalk vending and busking.

“I am very happy for today’s win, I feel amazing to be validated on three separate occasions by various judges along the way in this case,” Dorsett wrote in an email. “This isn’t just a big win for me. It’s a big win for all San Diegans and free speech in San Diego. I really appreciate all the hard work and faith McKenzie Scott law has put into me and this case.”