8/15/20: TOWN DEBUTS A REDESIGNED NEWSLETTER. PROPOSED PUBLIC ASSEMBLY ORDINANCE IS A WORK IN PROGRESS.

Stevegudas
Public protests are as American as the Fourth of July. Here, Steve Gudas pickets construction of the oversized “single-family” dwelling at 98 Ocean Blvd.

The Town debuted a redesigned biweekly newsletter yesterday that is more professional and public service-oriented than any we have ever seen published before.

Gone are the notices for Outer Banks SPCA pet adoptions and for applying to serve on the Town Planning Board, or in a different volunteer capacity, even when there are no openings.

Instead, you have a “friendly reminder” that dumping “trash, landscape debris or other material” in a canal or other waterway is illegal; a link to a “recent history” of the Town’s “fund balance”; a subtle admonition about pedestrians crossing at crosswalks and walking facing oncoming traffic when they are in a road that does not have a sidewalk; and a link to “updated” 2022 beach nourishment project information.

While we would have preferred friendly articles with some context accompanying both the “friendly reminder” and the presentation of “bicycle and pedestrian laws,” we do approve of an apparent move toward providing public information and actual Town news. Next time, perhaps, the legal language could be couched in a conversational style, so that such items look less like warnings and more like inducements to community cooperation and protection of public health.

We also would like to see summarized the reports to which the newsletter’s beach-nourishment link connects so that the public does not have to pore through deadly and excessive prose submitted by the Town’s coastal engineering consultant. A set of FAQs about the project would be very helpful.

The item about the Town’s fund balance connects to an explanatory note about basic accounting and a pie chart, which shows that the unassigned fund balance as of June 30, 2019 was $4,173,321. We will not know the auditor’s 2020 assessment of the unassigned fund balance until the fall. While the explanatory note could use punching up with more details, it is a start in the right direction to have an item about the Town’s financial accountability in the newsletter.

Bravo to new Town Manager Cliff Ogburn, who is gradually putting his managerial imprint on important matters of public information.

You may check out yesterday’s redesigned newsletter here: http://www.icontact-archive.com/archive?c=765415&f=5424&s=12055&m=432630&t=5568222ac26abb9d284f1e8560139c5709e4935bd984f33bb744a90b0077a7c3

The new newsletter also encourages the public’s communication with Town Hall. At the top of the newsletter are links to the Town’s website, Facebook page, Twitter account, and general email address. At the bottom is printed the main telephone number for Town Hall, which, when called, connects you to a voice menu for departments.

We strongly urge you to subscribe to the Town newsletter, which is usually published biweekly—or, at least semimonthly—not bimonthly, as it says on the website.

TOWN OFFERS NEW REDLINED VERSION OF PROPOSED PUBLIC-ASSEMBLY ORDINANCE; Beacon Urges Town Manager to Withdraw TCA 2020-08-01 for Further Legal Review.

 Yesterday’s redesigned newsletter presented all of the information you need to be prepared for the Town Council’s Tuesday workshop meeting, which starts at 9 a.m. in the Pitts Center, including an updated “redlined” version of the proposed Town Code amendment to regulate public “assemblies.”

You may see the latest draft of Town Code Amendment (TCA) 2020-08-01 here:

https://www.southernshores-nc.gov/southern-shores-town-council-workshop-meeting-august-18-2020/toss-tca-2020-08-01-publicassemblies-vredlinetosspacket001-with-tosspacketv002/

If the Town Council actually votes upon this draft Tuesday, four of the five Council members must approve it for it to be enacted. On first reading, a Town Code amendment must be approved by a “super-majority” of the Council.

I reached out yesterday by email to Mr. Ogburn about at least one problem I had with the original draft of TCA 2020-08-01, and he was very responsive and thoughtful, as he always is. I have other concerns, but, honestly, I have not had the time to analyze the TCA in a thorough manner and to commit my analysis to writing because I was traveling last week, including yesterday when I emailed Mr. Ogburn.

I will do my best to publish something more substantive tomorrow or Monday, and I may speak to Mr. Ogburn personally. There is long-established First Amendment law that towns must adhere to when regulating public assemblies—if they want their ordinances to be constitutional—and I believe that TCA 2020-08-01 needs to be further vetted.

“There isn’t a rush to get this done,” Mr.Ogburn wrote to me in an email, “and there aren’t any events planned that I am aware of.”

In light of that, I would like to see the Town Manager withdraw TCA 2020-08-01 and subject it to further legal review by First Amendment-savvy professionals. Mr. Ogburn explained to me that the draft originated with a layperson, who used Code language from nearby beach towns as a model.

The very first paragraph of TCA 2020-08-01, which defines a public assembly, in part, as “any assembly or concert of action between or among any two or more persons” makes me stumble. I have never seen or heard of a two-person assembly nor have I seen a lawful public assembly defined in this manner. This definition definitely needs correction.

It also uses words that need to be precisely defined, including “assembly,” “protesting,” “demonstrating,” “parades,” “picketing,” and the like.

At English common law, an “unlawful assembly” could occur between three or more people who meet to commit a crime or carry out an unlawful act or unlawful purpose, or whose meeting breaches the public peace. Not only was this law established long before the First Amendment of the U.S. Constitution guaranteed the people the right “peaceably to assemble,” it did not pertain to “peaceable” assemblies that are lawful.

I also stumble over requiring a public assembly—whatever that means—of just 10 people to apply for a permit from the Town. That is what most of us would consider a group, not an assembly.

Ten or 15 people who gather on the South Dogwood Trail sidewalk to give out political-candidate leaflets to passersby should not have to wonder if they need to apply for a permit. They should not be so burdened. I believe more work needs to be done on the definition section and the threshold permit requirements of TCA 2020-08-01.

FIRST AMENDMENT LAW

Returning to the First Amendment law on public assemblies, which also encompasses the constitutional right to free speech—and sometimes other First Amendment protections, such as the right to “petition the Government for the redress of grievances”—it is well established that:

Governments may only impose time, place, and manner restrictions on such expressive activities. All such restrictions must be content-neutral. Governments may not directly regulate the message of the messengers who assemble peaceably in public, nor may they do so indirectly by leaving permit decisions up to the sole discretion of a public official who may act in a biased manner.

Permissible time, place, and manner restrictions include, for example:

*Imposing limits on the noise level of the speech by the protesters, demonstrators, picketers, etc.

*Capping the number of protesters who may occupy a given public forum, such as the parking lot at Town Hall.

*Barring early-morning or late-evening demonstrations.

*Restricting the size or placement of signs on government property.

These restrictions also may take the form of requirements to obtain a permit for an assembly, as TCA 2020-08-01 imposes.

To survive a First Amendment constitutional challenge, time, place, and manner restrictions—such as those in TCA 2020-08-01—must meet a three-prong test set forth by the U.S. Supreme Court in Ward v. Rock Against Racism, 491 U.S. 781 (1989).

First, the challenged regulation must be content-neutral.

Second, it must be “narrowly tailored” to serve a “significant governmental interest.”

Third, it must leave open ample alternative channels for communicating the speaker’s message.

This test balances the people’s First Amendment rights with important government interests, such as its police-power interests of  protecting public safety, health, and welfare.

As you might imagine, it is the second-prong of the test that is usually the “rub.”

To be narrowly tailored, a time-place-manner restriction need not be the least restrictive or least intrusive means for a government to achieve its objective. That said, the interest that the government seeks to protect must be “significant.”

For example, the Town can require a permit for parades in public streets, given a foreseeable adverse impact on vehicle traffic, but it cannot categorically ban parades in such a manner as to allow them only when streets are bereft of onlookers.

The Town has a significant interest in maintaining public safety, which may involve keeping streets open and traffic moving. But the Supreme Court has also held that local authorities may not break up public protests simply because they slow traffic, inconvenience pedestrians, are annoying, or make people angry.

The Town also cannot require a permit for a protest on a public sidewalk that would not significantly burden or disrupt pedestrian or vehicle traffic.

There are nuances to consider in drafting a public-assembly ordinance that passes constitutional muster, and I believe that the Town Manager needs to spend more time with legal advisers on TCA 2020-08-01 to ensure that it is such an ordinance.

Ann G. Sjoerdsma, 8/15/20

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