This story gives us a fascinating look at some old laws that both sides admit are outdated. As it stands right now, your rights to peacefully protest vary depending on what park you're standing in.
Ringling Brothers got a permit to hold a lunchtime promotion in San Francisco's Union Square last September, and they didn't want a few activists protesting the treatment of circus animals to spoil the event. Video shot by the activists shows a police officer and a park ranger move in, taking control of the banner. However, they have difficulty deciding what laws the protestors are breaking.
Officer: So, basically you're demonstrating on private -- they got a permit in a public square in the park.
Activist: Doesn't not make it a public forum anymore.
Officer: Correct.
Activist: It's still a public forum.
Officer: No, it is not.
Then, the officer threatens to arrest them for violating San Francisco park code 7.08 (b), that says it's "unlawful to ... substantially obstruct any traffic of pedestrians or vehicles." But that doesn't really apply -- the sidewalk's clear.
Activist: We're not obstructing anyone, sir.
Police: Are you failing to disperse? That's what I'm asking.
Activist: You're going to cite me for that?
Police: Yes, sir.
But, the officer uses another part of the park code. He writes two tickets for violating 7.08 (d) which sets out "public assembly areas" in parks "during permitted events." According to the ordinance, Union Square is cut right down the middle -- protests are allowed only in the eastern half of the square; the western half is prohibited.
"And we're in San Francisco, we value free speech, the idea that this is on the books makes no sense," says activists' attorney Whitney Leigh.
In this case, the police took it a step further, not just limiting protestors to the eastern half of the square, but to a free speech pen far from their intended audience.
"What the ordinance does is it prevents the protestors from delivering their message to their intended audience," says the ACLU's Linda Lye. "Free speech means we that we have a right to speak, but it also means that we have a right to convey our message to the people whom we want to convey it to."
And the rules under code 7.08 (d) vary from park to park -- no protesting in the main part of Justin Herman Plaza, including the steps leading down. The smaller western portion at street level is the public assembly area.
Most of Dolores Park is off-limits to protestors, except for a 50-foot strip around the perimeter.
So we measured. We started at the edge of the park, went 50 feet, and had to go through a fence. We wound up with a boundary on a tennis court, where in area you could protest, but on the other you'd be breaking the law.
The ordinance allows protesting at Civic Center on two lawn areas, but prohibits it in "the central portion of the park which includes the fountain and the paved areas surrounding the fountain." But the fountain's been gone for years.
We asked Matt Dorsey with the San Francisco City Attorney's Office where that fountain is. "I don't know, in the 20-something years that I've been here, I don't recall a fountain," he says. "But I think I've seen pictures of it and I think it was in the center."
The city attorney's office says it will defend the rights of all parties to free speech, but admits it's time for a second look at 7.08 (d).
"If there is an issue that comes up that is an anachronism that's in the code, we're going to sit down with our clients and policy makers to make sure that we update the code," says Dorsey.
"We should care about this because speech goes to the core of our democracy, it's how we express ourselves, and the basic principle of free speech is that the cure to speech we don't like is more speech, not silencing speech," says Lye.
That part of the park code is 30 years old.
We haven't been able to get the answer to one important question -- has this ordinance been used any other time during the past year, five years, even 10 years? We asked the police, rec and parks, the city attorney and the courts, but no answer so far. Clearly, it's time to clean up the city code.
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