A government in the United States may not burden citizens’ rights of expression under the First Amendment by requiring them to obtain a “public assembly” permit when it does not have the right to do so. We are talking here about a government, such as the Town of Southern Shores, interfering with constitutionally protected activity by over-regulating it.
If marchers stay on public sidewalks and obey traffic and pedestrian signals, their activity is constitutionally protected even without a permit, according to the American Civil Liberties Union—and anyone else who knows First Amendment law, which the U.S. Supreme Court has delineated through rulings dating back to the 19th century.
The Town Council is currently scheduled to consider at its 9 a.m. workshop meeting tomorrow an amendment to the Town Code of Ordinances that creates a chapter about the regulation of public assemblies. A key feature of Town Code Amendment (TCA) 2020-08-01 is the implementation of a permit process.
(The Council meeting will be held in the Pitts Center and is open to members of the public who wear facial coverings. Social distancing will be observed.)
We believe TCA 2020-08-01 goes too far in requiring permits of people who gather for constitutionally protected expression. It does not withstand First Amendment scrutiny and should be withdrawn for further revision.
BEACON ANALYSIS OF TCA 2020-08-01
In The Beacon’s 8/15/20 post about TCA 2020-08-01, we pointed out that the amendment would require a group of 10 people distributing political-campaign literature on South Dogwood Trail sidewalk to obtain a permit. Such Town interference would be unconstitutional.
People may approach pedestrians on public sidewalks with leaflets, petitions, solicitations for donations, etc., without a permit provided they do not block entrances to buildings or physically or maliciously detain passers-by, according to the online ACLU, in explaining Supreme Court law.
The Town has no “significant governmental interest” in protecting passers-by from being leafleted, provided the leaflet distributors are not disruptive, and it cannot impose a permit on this activity.
(For more legal background, please see our 8/15/20 post about the three-pronged constitutionality test that the U.S. Supreme Court applies to governmental “time, place, and manner” restrictions on public assemblies. All restrictions, including the requirement of a permit, must be “narrowly tailored” to serve a “significant governmental interest.”)
People also have a right to picket on public sidewalks without obtaining a permit first, provided they do so in an orderly, non-disruptive fashion so that pedestrians can pass by and entrances to buildings are not blocked.
As TCA 2020-08-01 is written now, every “assembly” of more than 10 people in or on any street, sidewalk, alley, or other public place in town, requires a permit, regardless of whether a “significant governmental interest” is involved. This approach is fatally flawed.
As we noted 8/15/20, the TCA defines “assembly” vaguely, and much too broadly, as an “assembly or concert of action” of two or more people for the purpose of “protesting or demonstrating for or against any matter.” (An “assembly” is an “assembly,” basically.) According to the proposed ordinance, public assemblies “include, but are not limited to, parades, picketing and other demonstrations.”
Town Manager Cliff Ogburn informed The Beacon that the language of TCA 2020-08-01 originated with Southern Shores Police Chief David Kole, not Town Attorney Ben Gallop. Chief Kole looked at public-assembly ordinances in other Dare County towns to compose his draft for Southern Shores, and Mr. Gallop provided some review.
Besides imposing permits on constitutionally protected activity that towns cannot burden with a permit, TCA 2020-08-01 goes too far in other respects.
For example, it impermissibly prohibits all parades on town streets year-round between the hours of 7 p.m. and 8 a.m.—without citing any “significant governmental interest” in doing so. The Town does not have a right to shut down parades simply because of darkness. There is nothing inherently dangerous or threatening about darkness.
If the Town’s concern is noise, then it should regulate the noise. A more limited hour prohibition (9 p.m. to 7 a.m., perhaps) would make sense in the context of a noise regulation. The Town Code permits construction to start at 7 a.m. and end at 8 p.m. every day except Sunday, and it is rarely quiet.
(The Town’s noise ordinance was rewritten by Codewright Planners as part of its “update” of the Town Code, but its work product has not been discussed since January 2019. See The Beacon’s 7/30/20 post, “The Making of a Fiasco,” about the Codewright project.)
The TCA also prohibits parades on a Saturday or Sunday between Memorial Day and Labor “upon streets or highways with high volumes of tourism-related traffic.”
We had some limited emailed conversation with Mr. Ogburn about this provision last week. The Town has a “significant governmental interest” in traffic control and pedestrian safety, but we do not believe this language about “high volumes” is narrowly tailored enough to pass First Amendment muster.
We also question attempts by the Town to safeguard minors from safety hazards apparently perceived as unique to them, but not stated, and unclear to us.
TCA 2020-08-01 requires permit applicants to indicate how many people under the age of 18 are expected to participate in the assembly (why?) and prohibits allowing minors to participate in a public assembly “during a time or at a place that would be detrimental to or endanger the health, safety or welfare of such minors.”
The effect of this language seems to us to be the chilling of both assembly organizers’ and minors’ First Amendment rights. We honestly do not understand it. Any “significant governmental interest” that the Town has in ensuring public safety extends to all citizens, regardless of their age.
A provision that any assembly permit that the Town issues “may proscribe reasonable requirements that the Town Manager determines are reasonably necessary to insure [sic] the control and free movement of pedestrian and vehicular traffic or for the health, safety and property rights of the participants and the general public” also concerns us.
A proscription is a prohibition. To proscribe is to prevent or to forbid. Perhaps what is intended in this provision is a prescription, rather than a proscription. Whatever the case, we believe this language introduces ambiguity and uncertainty and is unnecessary.
The Town, acting through the Town Manager, may impose reasonable, narrowly tailored restrictions on public assemblies to further “significant governmental interests,” which include traffic control and pedestrian safety. This is basic First Amendment law. This provision suggests that the Town is vesting in the Town Manager more discretion than he is constitutionally entitled.
The Beacon believes TCA 2020-08-01 is too flawed to be voted upon tomorrow by the Town Council, whose members may or may not be knowledgeable enough to evaluate it.
We urge you to read the latest draft of Town Code Amendment (TCA) 2020-08-01 and to be informed:
PLEASE ZOOM IN
There is no public hearing scheduled for TCA 2020-08-01, but there will be an opportunity for the public to comment—for up to three minutes—during the customary general public comment period that is held before the Council takes up its business.
You may speak in person at the meeting (subject to COVID-19 requirements) or email written comments to Town Clerk Sheila Kane to be read aloud by the Mayor or the Mayor Pro Tem. You also have the option of speaking for up to three minutes via Zoom by alerting Ms. Kane through the website’s chat feature that you would like to speak.
To send written comments, email Ms. Kane at firstname.lastname@example.org. Be sure to include your name and address and indicate in the email subject line: “Public comment for Town Council meeting, 8/18/20.”
Regardless of whether you choose to comment, we strongly urge you to participate in the Town Council’s meeting by Zoom videoconferencing. The number of people who join Council meetings via Zoom has trickled off to less than a handful. This is not the way to ensure public accountability by elected officials.
It is very easy to Zoom, folks. All you have to do is go to zoom.us and sign up. You will be directed through a process that will culminate in the downloading of the website’s software to your computer’s hard drive.
Once you have signed up, all you need to do to join tomorrow’s Town Council meeting is to click on the “join a meeting” link at the top of the Zoom home page and type in the meeting ID and passcode when you are prompted:
Meeting ID is 912 3721 9720
Passcode is 635026
You need not even be seen on Zoom. If you right-click on the picture of yourself that appears on your computer screen once you have logged in, you may hide your image.
ALSO ON THE AGENDA: Recycling Contract, Beach Nourishment, Planning Board Appt., Town’s Allocation from Coronavirus Relief Fund.
The Beacon previewed the agenda for the Aug. 4 Town Council meeting, which was canceled because of Tropical Storm Isaias, on 8/3/20. The Council postponed most of the 8/4 business agenda until tomorrow’s workshop meeting.
We refer you to our 8/3 post for background on some of the other business items that the Council is scheduled to consider tomorrow, including a new recycling contract and monies to compensate the Town’s coastal engineering consultant for tasks.
New to tomorrow’s agenda are the appointment of a new Planning Board member, necessitated by a resignation, and consideration of the money the Town can receive from Dare County as part of the Coronavirus Relief Fund, which was established by the federal Coronavirus Aid, Relief, and Economic Security (CARES) Act.
See tomorrow’s meeting agenda here: https://www.southernshores-nc.gov/wp-content/uploads/minutes-agendas-newsletters/Agendas_2020-08-18.pdf
Planning Board Vice Chairperson Don Sowder has resigned his seat after serving only one year of his three-year term, which started July 1, 2019. According to Mr. Ogburn’s agenda item summary, Planning Board alternates Lynda Burek and Robert McClendon have both expressed interest in filling the vacancy.
Both Ms. Burek and Mr. McClendon were appointed Jan. 7, 2020—Ms. Burek as first alternate, Mr. McClendon as second alternate.
In the past, a three-person Council majority has played personal politics and elevated a second alternate to the Planning Board, over an equally qualified first alternate, who subsequently resigned because of the slight.
We clearly recall the Council minority asking the majority why the second alternate was a superior candidate to the first alternate and receiving no response. This should not happen again. The membership composition of the Planning Board should reflect the entire community, not the biases of three people on the Town Council.
No mention is made in the agenda about appointing a new alternate to replace either Ms. Burek or Mr. McClendon. This opening should be advertised in the Town newsletter.
As for the Town’s allocation from the County of Coronavirus Relief Fund monies, it amounts to $37,088. There is no mention in the meeting packet about how those monies might be applied.
In our 8/3/20 preview, we wrote:
Coastal engineer CPE-NC seeks $18,039 to prepare a 2020 beach profile analysis and report based on “profile data” it has already acquired. Profiling looks at shoreline and sand-volume changes.
Although it is well-known that East Coast beaches are at their widest in July and August, CPE-NC collected its data for purposes of evaluating the current status of the Southern Shores coastline before June 30. It did the same last year, with its May analysis.
CPE-NC’s initial 2017 study was conducted in December, when the beaches are their most eroded. They restore themselves in the summertime, according to all of the coastal environmental experts interviewed by The Beacon for past articles.
The Beacon questions the need for an annual beach profile study this year. Not only is short-term assessment of the coastline of little value, the Town has decided to do beach nourishment in 2022, regardless of the state of the coastline.
The Town Council previously authorized an appropriation of $17,357 to CPE-NC for the “profile data acquisition,” $5,208 of which was not dispensed during last year’s fiscal year budget and must be added to the current fiscal year budget. Thus, the Town is spending more than $35,000 on its 2020 beach profile and will likely pay for another profile next year.
Ann G. Sjoerdsma, 8/17/20