The Dallas City Council's decision last week to repeal its anti-protest ordinance -- the one that has irked both the far left and far right, from the peaceniks railing against the Bush Presidential Library to the Obama-hating patriots -- was a tacit admission that banning people from protesting next to highways is probably unconstitutional, no matter how many times Dallas Police Chief David Brown says it's dangerous.
That realization came too late to save the city from a pair of free speech lawsuits (neither of which, for the record, is going away), and it came too late to save the city from legal sanctions brought on by its apparent legal strategy of mindless obstructionism.
We mentioned here before that the federal judge handling the lawsuit filed by the Bush Library protesters wasn't very happy with the city's knee-jerk refusal to answer rudimentary questions about how the anti-protest ordinance was drafted. Last Wednesday, the same day the City Council repealed the ordinance, a different judge, U.S. Magistrate David Horan, slapped the city with sanctions for its obstructionism.
See also: Dallas Lawyers Try a Mulish Approach in Defending Protest Law. Judge Cracks Whip.
For example, the Bush Library protesters asked during the discovery process for the names of the individuals who were answering questions during the discovery process. This is standard, boilerplate stuff, but city attorneys responded with a non-response, vaguely referencing "the public discussions held by members of the Dallas City Council, where noted, as well as the police chiefs or other personnel who spoke before the Council at its meetings."
During a July hearing, when the judge asked the assistant city attorney why she didn't just give the protesters the requested list of names, she responded, "I think I was being protective in not wanting to generate a list of, you know, 30 names, each of whom that they can start requesting depositions of that, you know, we just feel would be, you know, end up being abusive in nature. But I am perfectly willing."
After the hearing, however, the city attorney claimed that the judge hadn't ordered the city to produce a supplemental response and besides, they had already added that their responses were "based on ... information obtained from other employees of the City of Dallas." This did not please the judge, who ordered the city to turn over the list of names -- again, a very basic request -- by mid-October, and that's what the city finally did.
The city, Horan wrote last week, has offered "no legitimate or substantially justified basis for refusing to fully answer" such a basic question. "The record makes clear that Defendant answered as it did to unilaterally deny Plaintiffs information in order to ... keep the names of potential witnesses from Plaintiffs' counsel based on an unsubstantiated concern that, if given a complete answer to this interrogatory, 'they can start requesting depositions [that would] end up being abusive in nature.'"
Horan goes on like this for 62 pages, picking apart Dallas pseudo-justifications for dragging its feet. City Council member Philip Kingston, who has consistently opposed the anti-protest ordinance on the grounds that it's an abridgment of free speech, called the judge's opinion "deeply, deeply embarrassing" and predicts that it will resonate in the Dallas legal community for years to come.
Meanwhile, as the city and protesters go back and forth on the proper level of sanctions, the lawsuit itself will continue. Meg Penrose, the Texas A&M law professor representing the Bush Library protesters, says her clients have no plans to drop the suit.
"Because the City can reinstate the anti-protest ordinance at any time, the litigation will continue in federal court unless the parties reach a settlement," she wrote in an email. "Thus, the voluntary repeal of the ordinance -- you may recall the first ordinance was similarly voluntarily repealed and then immediately replaced by another anti-protest ordinance -- does not impact the pending litigation."
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