A group of animal rights advocates, led by a Redwood City man named Joseph Cuviello, crashed into the city's more obscure free speech regulations last September, when they tried to protest a Ringling Bros.-Barnum & Bailey circus in Union Square. Defying police officers' warnings, they hung a “Ringling Bros. Beats Animals” banner in the northwestern corner of square, right in the audience's sightline. The officers took down the sign, wrote up citations, and told the protesters they were only allowed to organize in the event's “free speech zone,” a bike-rack-barricaded box in the southeastern corner of the square, according to Cuviello.
The protesters argued that the space — around 20 feet by 20 feet — was too constricted and secluded. One of the activists' lawyer showed up. A police sergeant showed up. After some discussion and a look into Parks Code Section 7.08(d), the police confirmed that the protesters were, in fact, allowed to demonstrate throughout the entire eastern half of Union Square.
This confusion shouldn't be surprising. Section 7.08(d), made law in 1981, dictates “designated public assembly areas” for parks. But the locations are precise, unmarked, and seemingly arbitrary, like that random corner of the club where guys awkwardly congregate to sip drinks, lean against the wall, and stare at the dancefloor.
When there's a permitted event at Justin Herman Plaza, you can picket in “the western portion of the Plaza at street level,” but not “the east end below street level, including the steps leading down to that area.” At Portsmouth Square, you have just a 50-foot radius from the parking garage elevators at your disposal.
The rationale, the Parks Code explains, is “to prevent interference with the progress and enjoyment” of the events.
The way Cuviello sees it, though, the Parks Code laws restrict free speech. Cuviello and two other activists are suing the city, charging this is “plainly unconstitutional.” According to their complaint, filed in the U.S. District Court of Northern California in June, “demonstrators were forced to adhere to an imaginary, unspecified 'free speech meridian' line,” which limited their “ability to promote their message to the people attending and witnessing the circus' event.”
Challenging 7.08(d) is certainly a legal longshot. Supreme Court rulings, such as Frisby v. Schultz in 1988, give government the power to control the “time, place, and manner” of free speech — just not the content — as long as the so-called free speech zones “are narrowly tailored to serve a significant government interest.” This precedent has been invoked to keep Fred Phelps' Westboro Baptist fanatics away from soldiers' funerals and pro-life protesters away from the homes of doctors who perform abortions. It allows cities to enact zoning restrictions for strip clubs. And notably, in the mid-2000s, President George W. Bush's secret service team used strict “free speech zones” to clean up his public events.
So watch where you say.