San Diego should not stifle new and creative ideas for enjoying the city's crown jewels, as city officials are seeking with a "Summer Moratorium" that prohibits most special events in the peak summer months, the San Diego ACLU said in a demand letter sent today.
The San Diego City Council is considering a moratorium on special events in Balboa Park, Mission Bay Park, Presidio Park and the Shoreline Parks with a few notable exceptions, including the Rock & Roll Marathon, Over the Line tournament, San Diego Pride festival, and the La Jolla Concert Series. But the proposed moratorium would prohibit other concerts, parades, circuses, fairs, festivals, block parties, community events, mass participation sports or spectator sports. The moratorium passed a first reading on October 11, 2011, but the Council still has to vote on a second reading before it can go into effect.
"Special events are fully protected by the First Amendment," said David Blair-Loy, legal director for the ACLU of San Diego & Imperial Counties. "The government can't play favorites with speech, whether in politics, art, or music."
In the letter sent to the mayor, city council members and the city attorney today, Blair-Loy spelled out the constitutional flaws with the council's proposal:
- Arts are protected speech. Special events don't need to concern politics to constitute protected expression under the First Amendment. Arts and entertainment, including music, dance, theatre, movies and visual art are all protected speech.
- No unified message is necessary. Art fairs, music festivals and many other examples are protected, even when the event contains many different speakers or no unified message.
- Parks are public forums. City parks are public forums, where restrictions on speech are subject to "the highest scrutiny." Permit regulations cannot be based on the content of messages.
- Permits must be content-neutral. As written, the council's Summer Moratorium shows preference to certain content while unlawfully excluding other content, e.g., a "Philippine Art Festival" is allowed, but not a "French Art Festival" or a "Mexican Art Festival." Once a forum is opened up to assembly or speaking by some groups, the government may not prohibit others from assembling or speaking on the basis of what they intend to say.
- Permits must serve a significant purpose. Even if content-neutral, regulations on speech in a public forum must be narrowly tailored to serve a significant government interest and must leave open plenty of alternatives for communication. By building in permanent favoritism for certain events, the city is unlawfully preventing the people of San Diego from organizing special events on prime parkland during the peak summer months.
"By favoring a certain few special events and prohibiting all others during the summer, the city is violating the First Amendment rights of event organizers, participants, and attendees," Blair-Loy said. "The city can protect its legitimate interests without suppressing speech."
As it always hopes to, the San Diego ACLU seeks to resolve the issue without litigation, and respectfully requested the city to reject the Summer Moratorium proposal.
