Litigation as Tactic

At the most recent meeting of the ACLU Santa Cruz Board of Directors a discussion was had concerning the best way to challenge a new and restrictive ordinance proposed by the Santa Cruz City Council. The ordinance, which will have a second reading before council on December 10, would require that any gathering of more than 50 people be subject to permitting by the city and would additionally provide for an extended waiting period for the issuance of any permit.

It was argued by some that public education and outreach would be the most effective tool to bring pressure to bear on the city council to reconsider the adoption of this ordinance. It was also suggested that a direct appeal by letter or other communication by the ACLU board would temper the council’s deliberations. Although these measures may be well taken, it is my opinion that the most effective tactic to bring down this latest attack on the freedom of speech and freedom of assembly in our city is litigation; in common parlance, a lawsuit. And while I respect diversity of tactics, local history has shown that litigation, even unsuccessful, can be a powerful tool in the fight against oppression.

Remember the courageous legal battle fought by Ed Frey on behalf of the Peace Camp 2010 defendants or Jonathan Gettlemen’s exhaustive legal arguments in defense of Linda Lemaster; both unsuccessful in wresting a verdict of not guilty from our courts but both well attended and widely publicized in the public eye. Remember Ed Frey’s full-throated defense of Occupy Santa Cruz that brought broad public support to the movement. Remember also the solidarity of the Santa Cruz Eleven and the impassioned courtroom arguments made on their behalf. Remember the community rallying around those defendants as we hope they will again as the remaining four approach their moment of judgment. I believe that the battles fought in the courts of law are as important as the ones we wage in the court of public opinion. And they are all the more powerful for the public stage they are played out upon.

Many will say, and perhaps rightly, that the courts are poor places for the protection of civil liberties. They will say that the courts are bastions of injustice rather than justice. But like anything else, it is not the system that determines our rights; it is how we use that system. I believe that we can use it to our advantage. And so I respectfully submit the idea of litigation as tactic and thereon rest my case.