City Hall

Dallas Lawyers Try a Mulish Approach in Defending Protest Law. Judge Cracks Whip.

Dallas Police Chief David Brown never gave a terribly convincing defense of an ordinance barring protesters from demonstrating near highways. He said it was intended to protect the safety of motorists who might be distracted by a sign-waving demonstrator, but as council member Philip Kingston highlighted as the City Council considered revising the ordinance, Brown produced not a shred of evidence to support his claim.

Several peace activists challenging the constitutionality of the law in court would also like to know the city's rationale for the law, both for the decades-old original ordinance and the updated version passed in January. If a government in America decides to abridge free speech, after all, the courts require there be a compelling reason. Vague allusions of public safety may satisfy two-thirds of the Dallas City Council, but hopefully not a federal judge.

In their search for relevant information, however, the activists and their attorney, Texas A&M Law Professor Meg Penrose, have encountered stiff -- one might say absurd -- resistance from the city attorney.

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

On several occasions during the discovery process, Penrose has sought to have the city answer, or produce documents that answer, some fairly basic questions about the anti-protest ordinance.

"Please explain how the carrying, holding, waving, or display of "signs" in the areas covered by the Revised Ordinance pose a safety threat or danger to anyone," the protesters ask in their first set of interrogatories.

"The City objects to this interrogatory as overly broad, unduly burdensome, and more appropriately addressed by way of deposition testimony."

OK. Perhaps the city could explain exactly how it defines "costume," which the ordinance bars from areas around highways.

"The City objects to this interrogatory to the extent it seeks privileged work product, attorney-client communications, and/or information protected by the legislative privilege."

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

And why does the ordinance include service roads in addition to highways?

"The City objects to this interrogatory to the extent it seeks privileged work product, attorney-client communications, and/or information protected by legislative privilege."

Well perhaps the city can at least say who participated in drafting the revised ordinance.

"The City objects to this request as seeking information that is neither relevant nor reasonably calculated to lead to the discovery of admissible evidence. The City further objects to this interrogatory as it seeks privileged work product, attorney-client communications, and/or information protected by the legislative privilege."

Even a request for a police report detailing accidents attributed to roadside protesters is "vague, overbroad, ambiguous, and unduly burdensome."

This goes on for dozens of questions. The best the city will offer is DVD footage of public meetings at which the ordinance is debated, the bulk of which are publicly available online.

More informal communications between the peace activists and the city are, if anything, even more bitchy. Penrose emailed assistant city attorney James Pinson in mid-April asking for the city's specific definition of two phrases used in the ordinance, "lateral lines of the roadway" and "main travel line." Pinson responded in early May after Penrose sent him a reminder email:

"Unfortunately, I don't have time to research your question at this time," Pinson writes. "Perhaps you could ask one of your students to do so."

The activists endured several months of this before giving up and asking U.S. District Judge Jorge Solis to force the city to actually respond to their questions.

Their frustration, cloaked though it is in legal jargon, is palpable.

"Such knee-jerk reaction of objecting to literally everything is both unfounded and indefensible," they write, blasting the city for "intransigence" and characterizing its reasons for refusing to answer questions variously as "spurious," "meritless" and "disingenuous."

Solis, it seems, agrees. Following a hearing on July 17, he ordered the city to answer the activists' questions and produce the requested documents by mid-August. He also overrode the city's objections to the plaintiffs' attempts to have Chief Brown testify in a deposition, which they'll also have to schedule by mid-August.

It's a minor procedural victory, but as the activists say in their motion to compel, they expect it will provide the ammunition to win summary judgment and a permanent injunction against the ordinance.

Send your story tips to the author, Eric Nicholson.

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Eric Nicholson
Contact: Eric Nicholson