Local ACLU Issues Stong Statement in Opposition to "Stay Away" Ordinance

Dear Councilmembers:

The Santa Cruz Chapter of the ACLU of Northern Cafifornia strongly opposes the enactment of the proposed amendment to Ordinance No. 13.08.100 of the Municipal Code, which the Council will be considering again on October 28. We urge you to reject this proposed law, because it is an unconstitutional violation of both the First and Fourteenth Amendments of the United States Constitution. The blatant illegality of the proposed law seems to be inviting litigation.

The proposed ordinance would greatly expand the discretionary power of Park and Recreation employees and other city officers to issue stay-away orders for an enormously broad range of behavior (any violation of the Municipal Code or state law) in all property maintained by the Parks and Recreation Department (which are undoubtedly traditional public fora), and would vastly extend the duration of the stay-away orders from a maximum of 24 hours to a full year. Among other problems, these stay-away orders would be issued without any process at all, much less due process (no hearing, no opportunity to be heard, no appeal), and would bar citees and arestees from exercising their First Amendment rights of assembly and free expression. As the Court found in Cyr v. Addison Rutland Supervisory Union, USDC (D. Vt.) Case No. 1:12-cv-105-jgm (9/30/14) [** see link below] , the stay-away orders authorized by this statute violate the First Amendment because they are "not narrowly tailored and do[] not leave open ample alternative channels of communication." Cyr involved ​"notices against trespass" (similar to the stay-away orders at issue here) issued by a school agency without court involvement, to prevent a troublesome person from attending school board meetings.

A short excerpt from the District Court's discussion of the First Amendment violation is instructive:

"First, a categorical ban on speech is not tailored at all, as it entirely forecloses a means of communication. Cf. Hill v. Colo., 530 U.S. 703, 726 (2000) (“when a content-neutral regulation does not entirely foreclose any means of communication, it may satisfy the tailoring requirement even though it is not the least restrictive or least intrusive means of serving the statutory goal”). In order to be narrowly tailored, a time, place, or manner restriction must not “burden substantially more speech than is necessary to further the government’s legitimate interests.” Ward, 491 U.S. at 799. Here, ostensibly in order to protect school staff, Mr. Cyr was banned not only from the Benson school grounds, but from all premises owned by the ARSU. He was not banned only during regular school hours, but at all hours, for two years.

Furthermore, the tailoring threshold here is even higher than in Ward, as a notice against trespass targeting an individual rather than the public generally is equivalent to an injunction against speech, and the Supreme Court has explained, “[i]njunctions . . . carry greater risks of censorship and discriminatory application than do general ordinances.” Madsen v. Women's Health Ctr., 512 U.S. 16 764 (1994). Consequently, “when evaluating a content-neutral injunction, . . . standard time, place, and manner analysis is not sufficiently rigorous. We must ask instead whether the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest.” Id. at 765. In the case at hand, the ARSU’s categorical ban was not tailored to respond to the specific threat that Mr. Cyr potentially posed, a threat that was never articulated as anything more specific than “a potential risk of violence to [Principal Doty, Director Benway,] or their staff.” (Doc. 49-1 at 3.) If the ARSU’s goal in issuing a notice against trespass to Mr. Cyr was to protect school staff, then it could have drafted a notice against trespass that was in effect only during school hours or posted a police officer at public meetings held on ARSU grounds.10 Also, the ARSU could have moved school board meetings to a neutral and secure location.

Additionally, the Second Circuit has found that a categorical ban on expressive speech singling out an individual does not even satisfy the lower threshold of reasonableness review. See Huminski v. Corsones, 396 F.3d 53, 92 (2d Cir. 2004). In Huminski, the court observed that notices against trespass which barred the plaintiff from all state courthouses in Rutland due to a perceived danger “in effect prohibit[ed] indefinitely any and all expressive activity in which [plaintiff] might want to engage in and around Rutland state courthouses.” Id. “The defendants’ singling out of [plaintiff] for exclusion, thereby permitting all others to engage in similar activity in and around the courts, suggests to us that the trespass notices are not reasonable.” Id. The ARSU imposed a similar restriction on Mr. Cyr here by singling him out and categorically banning him from all Union property. See id. at 93-94 (when a notice against trespass was issued with “virtually no ‘tailoring’ at all,” the efforts of government officials to safeguard the Vermont courts “from whatever threat they may have reasonably feared from [plaintiff] were wildly disproportionate to the perceived threat”)."

In granting plaintiff's summary judgment on the due process claim, the Cyr court concluded: "Because the notices against trespass were not issued pursuant to any protocol, the notices did not set out a process for contesting the notices, and Mr. Cyr had no meaningful opportunity to contest the notices, the notices posed a high risk of erroneously depriving Mr. Cyr of his First Amendment right to freedom of expression."

Of course, there is a great deal of additional law on these topics. We urge you to consult the law and reject this amendment.

Sincerely,
Peter Gelblum
Chair, Santa Cruz Chapter
ACLU Northern California​


** LINK: Cyr v. Addison Rutland Supervisory Union: