Friday, October 10, 2008

MSMIB continues his reflections on public protests in Bexley.

"Protesters? …Not in Our Neighborhood" by the most sensitive man in Bexley, Simon Doer

What would the neighbors think? Protestors picketing on the public sidewalks of Bexley, Ohio on issues such as abortion or perhaps labor related issues by a union or employees of a corporate executive or students picketing a professor or teacher (probably not a good idea if they are still taking the class)?

It could and did happen when protestors decided to take their disagreement to the sidewalks adjacent to a Bexley resident who served as a physician for an abortion clinic. The result was a doctor, the point of that protest, (buoyed by residents concerned they may be future objects of protest) upset enough to seek an ordinance through city council prohibiting or limiting future protests in front of an individual’s residence.

While other laws address any resulting disturbances from pickets’ behaviors, such as threatening actions, harassment, stalking or acts of violence, at issue here is whether the assembly of protestors on the public sidewalks of the city adjacent to the home of a picketed individual can be prohibited. We are not here discussing publicly owned mansions, such as the governor's on Parkview Avenue (typically hosting protesters opposed to executions) or that of the Ohio State University's president on North Drexel Avenue (not recently hosting protestors, but the potential is there if, for example, the football program was downsized in favor of increased spending on academic pursuits).

It is a delicate (and yes, sensitive) issue. The right to assemble to present grievances and to exercise free speech are guaranteed by the constitutions of the United States and Ohio. Protesters must, however, by law remain on public property, the sidewalk, and not block public entrance or exit. Leaving sticky notes on the sidewalk is not an option for protestors as littering laws are sacrosanct.

Restricting or otherwise limiting those rights cannot be taken lightly and must account, as in the above access rights, for any infringement on the rights of others. Without going into a legal discourse, suffice it to state that you cannot yell “FIRE” in the Drexel (or any other theatre [unless of course there is a fire]) or use imminent “fighting words” as you could harm and infringe on the rights of others, but you can peacefully assemble in public and use your free speech (unless it is after hours and then other nuisance and noise disturbance ordinances come into play).
So, can an ordinance be crafted and drafted to properly and constitutionally limit protesters’ assembly on the public sidewalks adjacent to a picketed Bexley residence? The residence of the pro-choice abortion physician was located on East Broad Street, should the reaction be different when the house is on a small side street like Bullet Park Place? Perhaps the answer is no to both questions.

In a July 26, 2008 article titled “Bexley considers limiting protesters,” reporter Alayna DeMartini of The Columbus Dispatch astutely observed “Bexley is not exactly the next Berkeley.“ She noted that “Upper Arlington had enforced a picketing law until 1995. An anti-abortion activist sued for the right to protest in front of an abortion doctor's home there and won. The U.S. 6th Circuit Court of Appeals found the law to be unconstitutional, so the council repealed it, “ and that “Upper Arlington's former ban reads exactly like the one being proposed in Bexley: ‘It is unlawful for any person to engage in picketing before or about the private residence or dwelling of any individual.’"

Ms. DeMartini wrote that according to Lou Chodosh, Bexley’s city attorney, “the law would allow protesters to march past several houses, but not focus on any one home,” and that “Chodosh modeled Bexley's proposed law after one in Brookfield, Wis. The U.S. Supreme Court upheld it as constitutional in 1988.”
So, if protestors would annoy the neighbors as well as the targeted individual, perhaps the ordinance would meet constitutional muster?

A friend in another Ohio city placed the argument in perspective when he observed that it is more likely the neighbors of the picketed resident would be annoyed and inconvenienced than the targeted individual(s). His point was that the protesters’ target would likely avoid their home during the protest and picketing and stay elsewhere for the time. Meanwhile the neighbors would be subjected to the protestors’ chants and displays.
So from a practical perspective what are the neighbors to do if an ordinance is ineffective to restrict protestors in the neighborhood? Become creative, counter-protest. For example, neighbors could place signs on their lawns (assuming they can comply with the Bexley yard sign ordinance, which may be doubtful), so better yet stand in their own yards with signs stating, “Protestors Go Home,” “Not in Our Neighborhood,” “Protect Our Children,” “Silence is Golden,” “Heave Ho,” or any other number of counter arguments to the protestors’ displays. In this manner neighbors would not address the issue directly (with the potential for altercations), however, could show their peaceful request that the protestors move their assembly elsewhere.

On August 7, 2008, the editorial collective of this radio station reflected on the situation and proposed a compromise ordinance. The text of that comment is provided on the agenctofcurrency blog. The core idea of the editorial collective proposal, which has not yet been proposed in the form of an ordinance nor provided a reading by Council, is that when any Bexley resident attracts demonstrators and protestors, that resident would be “required to provide refreshments [such as water or more properly perhaps mineral water or champagne] and suitable facilities and accommodations for the public protestors.“ “Umbrellas should be available for inclement weather and lawn chairs provided so the protestors can rest.”

City ordinances are intended to be taken seriously and the time taken to consider them through three readings is important, ever ready for any challenge to the supreme courts. This sensitive man has not yet checked it out, but several websites refer to a September 9, 1919 Bexley, Ohio ordinance number 223 that prohibits the installation and usage of slot machines in outhouses. If the ordinance suggestion by the editorial collective of this radio station is to be considered by the Bexley City Council, we hope that ordinance number 223 will be considered as City Council sets the standards for refreshments, accommodations and suitable facilities for public protestors.

This is one sensitive man’s opinion. What’s yours?

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