Protest ordinance
1:21 pm
Mon August 6, 2012

Appeals court strikes down St. Louis protest ordinance

Updated at 8:35 p.m. with statement from city.

A federal appeals court has ruled that a St. Louis city ordinance regulating street-side protests "excessively chills free speech" because it does not make clear exactly when those protests become a traffic hazard.

The ruling stemmed from a case involving Donald Stahl, a member of a local group that compiles evidence to refute the official version of the events surrounding the 9/11 terrorist attacks. Stahl and one other member of the group were arrested one Friday morning when they refused to leave the Park Ave. overpass near interstate 44 and 55, where they were holding a sign that read "911 was an inside job."

The police officer who made the arrest testified that he believed the location was particularly dangerous because of the nearby interchange and highway exit, but said despite receiving a call about an "offensive" sign, the content of the protest did not factor into the arrest.

Charges were later dropped against Stahl and the other protestor, but Stahl said they had refrained from protesting because they were afraid of being arrested again. He then challenged the constitutionality of the ordinance, which reads:

17.16.270 Demonstration on or near street
No person shall sell or offer for sale any goods or merchandise, display any sign or pictures, participate in or conduct an exhibition or demonstration, talk, sing or play music on any street or abutting premises, or alley in consequences of which there is such a gathering of persons or stopping of vehicles as to impede either pedestrians or vehicular traffic.

A federal judge dismissed the challenge, finding it a valid "time, place and manner" restriction that was not overly broad. The appeals panel disagreed, saying that although it is clear what is illegal, protestors have no way of knowing if a protest is obstructing traffic until after the violation occurs.

The court also ruled that the language was particularly troublesome because it "criminalizes activity based primarily on often unpredictable reactions of third parties rather than directly on a person's own actions, and it excessively chills protected First Amendment activity."

Alan Howard, a law professor at Saint Louis University, said the city probably wrote the ordinance broadly to avoid an argument that the law wasn't content neutral. It was that scope, he said, that got the city in trouble.

This is the second time in less than a year a court has ruled a city ordinance unconstitutional. In February, the U.S. Supreme Court let stand a lower court ruling that struck down part of the city's regulations on signs.

Washington University law professor Greg Magarian says St. Louis isn't the first city to face First Amendment challenges to multiple ordinances.

"As a practical matter, the reason that the First Amendment comes up so often is that in so many situations, if you're trying to deal with a legitimate problem, traffic, clutter, whatever, violating speech rights is a really easy way to deal with the problem," Magarian said. "You cut corners."

He says it won't be easy for the city to craft new ordinances to meet what he calls emphatic court rulings, but says that's what the judges have required.

City counselor Patti Hageman issued the following statement on the ruling:

"The ordinance that the Court struck down was enacted in 1979, and federal constitutional law regarding demonstrations has been in constant flux since then. The City is eager to move forward with revised ordinances that protect public safety and welfare while simultaneously preserving the rights of individuals to express themselves."

Follow Rachel Lippmann on Twitter: @rlippmann