Aug
5 - ACLU of Florida Warns St. Pete Mayor That Privatizing Public
Sidewalk Cannot Stop Free Speech and Assembly - Press Conference Aug.
6, 7:45am.
http://www.aclufl.org/news_events/?action=viewRelease&emailAlertID=3767
St. Petersburg, FL - There is a press conference
scheduled for Thursday, August 6 at 7:45am (prior to the City Council
meeting) in front of St. Petersburg City Hall, 175 Fifth Street, N to
discuss the memorandum sent to the City by the ACLU of Florida (see
below).
The Uhuru Movement
has called for a protest in front of City Hall beginning at 8:00am (175
Fifth Street N - map). City council meeting begins at 8:30am. Come and express your views on the sidewalk issue.
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FOR IMMEDIATE RELEASE:
August 5, 2009
CONTACT:
Brandon Hensler, Director of Communications, (786) 363-2737 or media@aclufl.org
ST. PETERSBURG, Fla. – Today, the ACLU of Florida sent
a letter to Mayor Rick Baker and City Council Chair Jeff Danner in St.
Petersburg, Florida, urging them to oppose the City’s proposed donation
of a public sidewalk to the private owners of the BayWalk complex. Part
of the proposed City of St. Petersburg’s BayWalk Revitalization Plan,
which will be discussed at the City Council Meeting on Thursday, August
6th at 8 a.m., the donation is intended to allow the owners of the
complex to exclude people from engaging in First Amendment activities
such as assembly and free speech..
Today’s letter from the ACLU details the reasons why the proposed
transfer of the sidewalk abutting BayWalk to the owners of the complex
would not only be fiscally irresponsible of the cash-strapped City, but
would be against the best interests of its citizens. Furthermore, it
would not accomplish the stated goal of excluding people who use the
sidewalk for expressive purposes.
“There are numerous federal and state rulings holding that local
government efforts to privatize public sidewalks do not change their
character from traditional public forums,” said Glenn Katon, senior
attorney with the ACLU of Florida. “As the largest civil liberties
organization in the state, we oppose the proposed plan for both
practical and legal reasons, and there are several organizations
interested in challenging the City’s proposed plan if it is passed.”
FOR IMMEDIATE RELEASE:
August 5, 2009
CONTACT:
Brandon Hensler, Director of Communications, (786) 363-2737 or media@aclufl.org
The full text of the letter is below, or can be downloaded in PDF here.
August 5, 2009
Mayor Rick Baker
City Council Chair Jeff Danner
St. Petersburg City Hall
175 5th St. N.
St Petersburg, Florida 33701
Re: BayWalk Revitalization Plan
Dear Mayor Baker and City Council Chair Danner:
We write concerning a portion of the City of St. Petersburg’s BayWalk
Revitalization Plan that is being considered as a way to reinvigorate
the struggling BayWalk complex. We are specifically concerned about the
plan to donate a public sidewalk to the private owners of the complex.
One of the reasons the City has given for the plan is it would allow
the owners of the complex to exclude people from engaging in First
Amendment activities such as assembly and speech. As the largest civil
liberties organization in the State of Florida, we oppose the proposed
plan for both practical and legal reasons.
The most obvious criticism of the proposal is that a cash-strapped city
should not be giving away valuable real estate to a private business.
In addition, trying to squelch constitutionally protected forms of
political expression runs contrary to the values of a democratic
society. Although we are not aware of any violent or threatening
behavior by political protestors at BayWalk, there are a variety of
laws in place to address such conduct if it were to occur. Moreover,
allowing a private business to exclude passers-by at its discretion
belies the City’s oft-stated goal of making downtown pedestrian
friendly.
Perhaps most importantly, donating the sidewalk to the owner of BayWalk
would not enable it to stop people from engaging in constitutionally
protected expression there. Numerous federal and state cases hold that
local government efforts to privatize public sidewalks do not change
their character from traditional public forums to private property
whose owners can exclude people engaging in First Amendment activity.
Below is a sample of those legal authorities.
In United Church Of Christ v. Gateway Economic Development Corp., 383
F.3d 449 (6th Cir. 2004), the court held that the private owner of the
sidewalk surrounding a sports arena could not stop protesters from
using the sidewalk to demonstrate, notwithstanding that it was
privately owned. Similarly, in Venetian Casino Resort, L.L.C. v. Local
Joint Executive Board, 257 F.3d 937 (9th Cir. 2001), the court deemed
the newly constructed and privately owned sidewalk surrounding the
Venetian casino in Las Vegas a public forum that union members could
use to protest against the management of the casino. Yet another United
States Court of Appeals reached the same conclusion in
First Unitarian Church of Salt Lake City v. Salt Lake City Corp., 308
F.3d 1114 (10th Cir. 2002), in which the city sold a part of a downtown
street to a church, which in turn sought to restrict First Amendment
activities on what had become a privately owned sidewalk. The court
struck those restrictions.
Finally, a Florida case that went up on appeal in a different posture
is worth noting. In Wood v. State, 2003 WL 1955433 (Fla. Cir. Ct.
2003), an individual collecting signatures to get his name on the
ballot without paying a qualifying fee refused to leave a privately
owned, enclosed mall. He was arrested for trespass and convicted in
County Court. The Circuit Court, sitting in its appellate capacity,
held that Article I, Section 5 of the Florida Constitution, which
protects the “right to petition as a form of democratic expression at
its purest,” prohibits a private owner of a quasi-public place from
using state trespass laws to exclude peaceful political activity. Id.
at *2. The First District Court of Appeals affirmed the Circuit Court’s
decision.
For all of the above reasons, we believe the City’s proposed transfer
of the sidewalk abutting BayWalk to the owners of that complex would be
against the interests of the citizens of the City of St. Petersburg
and, in any event, would not accomplish the stated goal of excluding
people who would use the sidewalk for expressive purposes. It is my
understanding that community groups that use the sidewalk for such
purposes are interested in challenging any attempt to exclude them,
which could lead to a lengthy legal proceeding that would not be in the
interests of the owners of BayWalk or the City.
If you have any questions concerning the matters raised in this letter, I would be glad to discuss them with you.
Sincerely,
Glenn M. Katon
cc: All Members of St. Petersburg City Council
Mark A. Winn, Esq., City Attorney
About the ACLU of Florida
The ACLU of Florida is freedom's watchdog, working daily in the courts,
legislatures and communities to defend individual rights and personal
freedoms guaranteed by the Constitution and the Bill of Rights. For
additional information, visit our web site at: www.aclufl.org.
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