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Battle to Retain Our First Amendment Rights

May 16, 2012

A battle now rages in our own United States District Court for the Western District of New York to defend the precious right to free speech that is once again being attacked. It is in the context of religious expression, also protected by the First Amendment to the United States Constitution. Take Notice: The case of Owen v. City of Buffalo is nothing less than a test of strength of the guarantee to the people that we may speak freely and responsibly without fear of arrest.

Mr. Owen is a God fearing Christian who feels so strongly about the immortality of the soul that he feels compelled to spread the Gospel. There’s nothing dangerous about that. Owen took his faith, his message and a stack of flyers to the Italian Festival last summer to peacefully distribute them to whoever cared to take one. He was with one like minded friend in a public venue, walking with the flow of pedestrian traffic, peacefully offering his views as expressed on the flyer.

Mr. Owen was not occupying a booth, or standing on a platform, or speaking through a megaphone. He was not obstructing traffic. He wasn’t asking anyone to sign anything or asking for a donation to any cause. The length of time anyone would be exposed to Mr. Owen’s message depended entirely on the passerby’s wishes: they could walk by him, or walk with him. They could listen to him or not. No one’s movement was restricted. He wasn’t seeking, nor drawing a crowd. He came to the Italian Festival because there were a lot of people there, people on a public street, a venue where people came for free to enjoy the festivities. The United States Army and various other businesses had the same idea, and were passing out their literature to anyone who cared to take a brochure or coupon.

The City of Buffalo threatened Mr. Owen with arrest if he didn’t leave the street. The quintessential public forum for free speech that was expressly envisioned by George Mason and James Madison when they penned the First Amendment. (See: Hill v. Colorado, 530 US 703 (2000); Frisbee v. Schultz, 487 US 474 (1988)). There was no allegation of littering. No instance of anyone complaining about being harassed. Mr. Owen simply was distributing literature in an area the City designated for the Italian Festival, where freedom of expression was allegedly allowed to be stifled by virtue of the issuance of a permit to the Festival organizers. Had the US Army and countless business owners who were passing out flyers been likewise shut down by the police, it would not have been so obvious that the speech sought to be gagged was content-driven.

When confronted directly by Mr. Owen, the police first said he couldn’t distribute his religious flyers because he didn’t have a license to be a vendor. The vendor license is properly required for those seeking to sell food or merchandise at the event, not for those who wish to speak their mind. Mr. Owen obeyed the police and stopped handing out the literature as directed by the police because it was not his intention to be a martyr, or a rabble rouser. It was Mr. Owen’s only intention to communicate peacefully. As Mr. Owen well knew, distribution of religious leaflets has expressly been deemed by the Supreme Court to be constitutionally protected. Murdock v. Pennsylvania, 319 US 105 (1943).

Sure, you can’t falsely shout “fire” in a crowded movie theater. Nor can you incite people to riot and commit acts that would place people in imminent harm. And, for people who wish to communicate in a way that is likely to cause disruption, certain time, place and manner restrictions on free speech, can and should be imposed. However, the US Supreme Court has held time and again that any time/place/manner restrictions must be narrowly tailored to serve a significant government interest, and it certainly better be content neutral to withstand judicial scrutiny. (See: Perry Education Assn v. Perry Local, 460 US 37 (1983)). The Supreme Court has further cautioned that any such restrictions on free speech should be rigorously tested to assure that otherwise valid speech is not stifled. (US v. Kokinda, 497 US 720 (1990)).

So, what about the City’s claim that the issuance of a permit to the Italian Festival makes Hertel Avenue off limits to free speakers? In US v. Grace, 461 US 171 (1983), the Court admonished that a government cannot simply transform a public forum into a private one at will. If a government could do that, then a dictatorial government could prevent peaceable assembly, public redress of grievances, and all the rights conferred by the First Amendment. That’s not what the delegates to the Constitutional Convention had in mind, nor is it what John Hancock and the members of the Second Continental Congress contemplated when penning the Declaration of Independence.

Mr. Owen seeks an injunction permitting him to pass out the flyers at this year’s Italian Festival. To do that, he needs to show that he would be irreparably harmed without the injunction. How does one clear that hurdle? Fortunately, the Supreme Court has long held that certain fundamental rights, like free speech and free exercise of religion, are so essential to the fabric of our nation’s existence that even a brief interruption of such freedoms constitutes irreparable harm. (See: Elrod v. Burns, 427 US 347 (1976)). And, when that free speech is sought to be exercised on the streets, in an obviously public forum, it is fully and intensely protected by the First Amendment. (See: Deegan v. Ithaca, 444 F3d 135 (2nd Circuit Court of Appeals, 2006).

Lest motives be attributed to my analysis, I am neither a Christian (and am active in my Jewish community), nor am I representing Mr. Owen in this case. I am simply an American, painfully aware of the need to fight to protect against erosion of our cherished rights. And, for that reason, when I attend the Italian Festival this year as I do every year, I hope to see Mr. Owen, and to hear Mr. Owen, and to shake his hand for standing up for the rights of all Americans.