A&M Law Professor: Dallas' New Protest Ordinance Is Unconstitutional

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The lawsuit filed last year by Bush Library protesters alleging that Dallas' ordinance banning hand-held signs from within 75 feet of highways violated the First Amendment has been in a holding pattern for several months while the city worked to revise its rule.

That process wrapped up last week when the Dallas City Council passed a new measure aimed at keeping demonstrators away from highways. Any hope this would make the litigation go away -- if any such hope ever existed -- should be put to bed now.

See also: Dallas City Council Is Fine with Free Speech, as Long as It's Not Close to a Freeway

The new rule is still aimed at silencing free speech, and it's still unconstitutional, says Meg Penrose, the attorney representing the Bush Library protesters.

Clearly, Penrose isn't a disinterested third party. She's also not one of the money-grubbing trial lawyers Councilwoman Vonciel Hill called to mind when she dismissed concerns about the new measure's constitutionality by arguing, essentially, that Dallas is going to be sued no matter what. Penrose is a constitutional law professor at Texas A&M Law School in Fort Worth, motivated to sue the city out of principle rather than in quest of an uncertain paycheck.

The problems with the law are myriad, Penrose says. The language - it bars anything "intended to distract the attention of motorists" from any place visible from highways -- is overly broad and overly vague. Take the part prohibiting "costumes." Does that mean trick-or-treaters would be barred from walking across a highway overpass on Halloween?

The deeper problem, though, is that it flies in the face of what the nation's highest courts have said about the First Amendment. To place a restriction on constitutionally protected speech, the government has to prove that it's necessary to protect public safety.

DPD Chief David Brown, along with a majority of City Council members, argued that people protesting near highways distract drivers, thus leading to accidents. But the city has no data to back up this claim, not a single instance it can cite in which some costumed, sign-holding demonstrator has caused a vehicle to crash. Police officials have admitted as much during proceedings in the criminal case against the Bush Library protesters.

"Under the Constitution, you cannot shut down political speech just by hiding behind a big sign called 'safety,'" Penrose said.

See also: As City Hall Battles Activists' Lawsuit, Dallas Moves to Ease Rules on Street-corner Protests

Furthermore, if protesters do pose such a threat to drivers, why is the law limited to highways? Why not Greenville Avenue? And why are billboards, "for lease" signs and other commercial speech, which is also intended to distract drivers, OK?

The law arbitrarily picks certain locations, and it arbitrarily singles out political speech.

There's more at stake here than the time and money the city is spending to defend the law, Penrose argues. Take the case of the Bush Library protesters. Their criminal citations were ultimately dismissed on free-speech grounds, but only after months of legal wrangling and a big assist from a law professor.

Criminal charges, or the threat of them, are probably going to have a chilling effect on free speech, which is exactly the thing the First Amendment was designed to protect against.

Send your story tips to the author, Eric Nicholson.

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