Free Speech Triumphs Over Gestapo in OC!

By R. Scott Moxley Fri., Oct. 2 2009 at 5:33 PM

Categories: Breaking News, Moxley, Politics

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Oppression didn't end in 1945

Folks are always complaining that Congress and state legislatures should not be allowed to meet except for a couple of weeks a year. It's an idea to help curtail the nanny-state notions of politicians of both major political parties. Good enough. But what about city councils?

Take the San Clemente City Council, for example. It decided that it could outfox the U.S. Constitution and U.S. Supreme Court rulings that rigidly prevent the government from restricting free speech rights of citizens in most cases. But, you see, a court case outlined that politicians could attempt to block speech if they could prove that the restrictions were "narrowly tailored to serve a significant government interest . . ."

So San Clemente elected officials--likely with the aid of some overpaid private law firm living well off local taxpayers--decided to write an ordinance that fines people for putting literature on the windshields of vehicles. The alleged significant government interest? To prevent litter. And their evidence that they'd adhered to the high court's rulings? City officials named their action the "San Clemente Anti-Litter Ordinance."

In 2007, Steve Klein and numerous other activists attempted to distribute immigration-related political leaflets on the windshields of unoccupied vehicles. (I don't care what side Klein took; it's irrelevant in this situation.) Several Orange County sheriff's deputies, who serve the city, saw that act as a crime in progress, trotted over and told Klein that he would be fined if he continued.

An unhappy Klein stopped, but sought injunctive relief in court. Federal Judge A. Hoard Matz said tough luck. He ruled that the city had the power to restrict Klein's speech because of the litter ruse.

But today, the United States Court of Appeals for the Ninth Circuit slammed Matz and the San Clemente politicians.

"Discarded paper, coffee cups and food wrappers can also add to litter, but we remain free to carry beverages and candy bars on public streets, indicating that municipalities do not usually endeavor to eliminate all possibilities of litter," the justices wrote. "So the City must show not only that vehicle leafletting can create litter, but that it creates an abundance of litter significantly beyond the amount the City already manages to clean up."

The justices said that the city had sloppily produced zero evidence that Klein's political leafletting created any litter and pointedly noted the city hadn't met its burden merely by citing the name of its unconstitutional ordinance as the only evidence "of an actual problem."

In conclusion, the appeals court opined that, "None of interests asserted by the City were proven sufficiently weighty to justify the restrictions placed on Klein's right to express his political views."

At least for today, the score in San Clemente is Freedom 1 and Gestapo 0.

--R. Scott Moxley / OC Weekly

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