DEFIANCE, OH – Today, the American Civil Liberties Union of Ohio filed a federal lawsuit against the city of Defiance, alleging that the city’s enforcement of a policy banning temporary chalk messages on public sidewalks violates the First Amendment.
In September, the ACLU sent a letter to city leaders, warning them that their policy was unconstitutional. A reply from Defiance Law Director David Williams made it very clear that the city had no intention of reconsidering the policy, making litigation necessary.
“To put it simply, city officials are using ordinances and permit schemes to control who is allowed to chalk on public sidewalks—and who is not—based on their own whims,” said ACLU of Ohio Staff Attorney Drew Dennis. “This contradicts the core principles of the First Amendment.”
The city first made news during the 2012 Halloween season when police ordered local members of the Occupy movement to stop writing on public sidewalks with temporary chalk because their speech was political in nature and the group did not have a permit.
Faced with evidence that others had been allowed to chalk the sidewalks without incident, the city crafted a new legal opinion stating that chalk ‘drawings’ are legal because they use pictures, while chalk ‘writings’ that use words are against the law unless the city has granted a permit.
The ACLU lawsuit points out that there is no constitutional justification for singling out chalk words for extra scrutiny. The suit also claims that the city’s permit process gives the local government “unbridled authority” to approve or deny permits based on how they feel about the applicants message.
“It is clear what is happening here. The city has combined a series of convoluted legal arguments with a permit scheme to make it illegal for people to express their message in chalk unless the government approves of that message,” said Dennis. “The city has been given multiple opportunities to acknowledge and correct this problem. Unfortunately, they have chosen costly and time-consuming litigation instead.”
Update, 10-24-13
On October 23, 2013, an agreement was reached that will allow Occupy Defiance to write on public sidewalks with temporary chalk until this case can be heard in court.
The court agreement requires members of Occupy Defiance to apply for a city permit to write on the sidewalks with chalk and also requires the city of Defiance to grant that permit, which will remain in effect until the court says otherwise.
The agreement makes it clear that this arrangement does not resolve the lawsuit, nor does it address the constitutionality of the city’s policies, which will be decided by the court at a later date.
