The most memorable scene from April's protest against the opening of the George W. Bush Presidential Center came when two men wearing comically large Bush/Cheney masks were handcuffed and marched to the back of a squad car. An overreaction, perhaps, but not a huge miscarriage of justice. They had wandered into the Central Expressway service road and didn't immediately obey cops' orders to return to the sidewalk.
Otherwise, police kept their handcuffs and ticket books sheathed, thanks in part to a temporary restraining order issued by U.S. District Judge Jorge Solis barring the city of Dallas from enforceing its ordinance banning people from holding signs within 75 feet of a highway or service road during the Bush Center opening.
In court, the city denied that it had any such plans, but the plaintiffs in the case -- veteran activists Paul Heller, Leslie Harris, Deborah Beltran, Gary Staurd, Diane Baker, and Mavis Belisle -- had good reason to be afraid. Three months before, they had all received citations for holding political signs (e.g. "I ♥ the Bill of Rights" and "I love the First Amendment") at the intersection of Central Expressway and Mockingbird Lane.
But the temporary restraining order was just that -- temporary. It did nothing to address their misdemeanor charges, which the city was continuing to prosecute in municipal court, and it did nothing about the sign-holding ordinance, which the activists claim is an unconstitutional limit on free speech.
With that in mind, Heller and his fellow plaintiffs have again taken the city to court, this time with their ultimate goal stated more explicitly. Rather than just seeking the right to protest at a single event, they're bent on having the entire ordinance overturned.
Their argument is appealingly simple. Holding a political sign on a public sidewalk is the very definition of speech protected by the First Amendment. The city's rationale for passing and enforcing the ordinance -- that such signs constitute a threat to public safety because they distract drivers -- doesn't pass the smell test given that it doesn't apply to billboards, for-lease banners and other signs that litter the highway.
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They're confident that a judge will feel the same way. They point to Solis' restraining order, which came after a day-long evidentiary hearing and found that DPD had failed to demonstrate that it has "some meaningful interest" in more strictly regulating traffic on the Central service road.
They hoped this might have been the outcome of their initial lawsuit, but they say the city's legal shenanigans got in the way. The activists initially filed their suit in state court, only to have the city succeed in having it removed to the federal level. Then, after the restraining order was issued, the city decided to go along with the activists and kick it back down to state court. Once there the city's attorneys moved to have it dismissed for lack of jurisdiction.
The activists withdrew their state court case on Tuesday. Federal court, they say in their suit, offers a better "forum to fully ventilate their First Amendment challenges"
We spoke briefly to Heller, who referred questions about the case to Meg Penrose, a Texas A&M law school professor and one of the attorneys representing the six activists. We've emailed her and will update when we hear back.