LC 2.48 Fire In A Crowded Theater Amendment (Passed)

[Mr. Reactionary]

First, as was brought up briefly in the initial debate on this bill, Sec-2's limitation on 'buffer zones' is coded language for an assault on women's access to abortion. Anti-abortion protesters have a well-known history of blocking or obstructing women from entering health facilities and have often sought to deter access through vandalism and intimidation. As these activities threaten the safety of women seeking access to abortion clinics, I have added a provision stating that buffer zones shall be allowed in order to protect public safety and the safety of individuals at risk.

Your change does not meet with the minimum requirements of McCullen v. Coakley (2014). Any sort of buffer zone in a traditional public forum REQUIRES narrow tailoring and a consideration of alternate channels. Merely claiming public safety without tailoring a regulation to only cover the specific threat is unconstitutional.

I have stricken-out Sec-4 because I do not believe we need any further restrictions on signage laws beyond the ruling set in Reed v. Town of Gilbert.

But this law was passed to comply with Reed v. Town of Gilbert. In that case the Supreme Court said laws that discriminate based on speech content required strict scrutiny which is a death sentence. Laws singling out the specific content identified are facially unconstitutional. I literally just had to rewrite my City's sign code because of this. You want to repeal the ban on imposing federally unconstitutional laws.

Sec-6 (or Sec-5 in the amendment) is squarely meant to disallow HOAs and landlords from banning the display of Confederate flags. Considering this is not a historical flag of Atlasia, but rather a hate symbol representing a traitorous slave-owning aristocracy, I believe the decision to allow/disallow such flags should be left to the property manager(s) and I have edited the language as such.

Actually, in light of Reed Im with you on this since this singles out specific flags by content and I actually think you need to strike out the remaining categories too. Under Reed we can protect all or none, but not just some.

Sec-8 of the original law states that public property shall not permit the existence of homeless persons. This addition is simply rotten to the core. It should not be the policy of Lincoln to aim its sights at those unable to find housing without providing ample temporary residence services in the same breath. Furthermore, legislation on "free speech" has no place discussing homelessness.

That provision DECRIMINALIZED homelessness. It exempts them from prosecution for all the normal bs crimes they charge them with: loitering, trespassing, camping without a flippin permit. You want to eliminate a safe harbor that prevents the police from charging homeless people with these crimes. That's the OPPOSITE of what you should want.

Last, Sec-11 of the FSPA (or Sec-9 in the amendment) has been limited to religious groups. As discussed in the Lincoln Assembly prior to passage of the Right to Work Act (L 14.3), the vague language in this section ("or other organization of association") may include trade unions. As such, I would consider the removal of this portion of Sec-11 a follow-up to the Lincoln Council's repeal of RTW.

First of all that is not vague language, you just left off the all important ALL. All is inclusive. All other organizations is very specific.

But really tho

you want to make it legal ... for an employer to require all of its employees ... to join the Nazi Party in order to hold a job. That's absurd from someone claiming to support workers. You want to eliminate the protection against mandatory membership in a political party in order to hold a job ... so the Koch Bros can require all of their employees to pay dues to the Federalist party!? How does it benefit workers to be FORCED to associate with non-work related groups they may not agree with? That's tyranny. Besides if you deviate from the language of this provision outside of the RTW stuff which was amended, yall lose some federal funding.

The reds are coming for your free speech! Priorities ... trampling free speech and making it easier for the cops to harass homeless people. Remember, this bill is named after a quote from an awful, overturned case that upheld the imprisonment of peaceful socialist war protesters.  Stand up for the workers and peasants of Lincoln and reject this attack on their rights!

[Mr. Reactionary]

I support part of this, but not all of it

I propose an amendment

snip

Why do you oppose the noise ordinance section?

I believe that is disruptive to play loud music at night, or to otherwise make lots of noise. Most of these noise ordinances deal with night, and most people want to sleep.

I believe that would be considered an easily ascertainable standard tmk.

Yeah, even just saying "can be heard offsite of the property" is an easily ascertainable standard. Its the minimum Constitutional standard in va. This basically blocks local noise ordinances that just ban "excessibely loud" or "disruptive" sounds that are clearly subjective. My city uses the "can be heard offsite the property" standard alongside an enumerated list of specific stuff. So like amplified music that can be heard offsite between certain hours is banned. Other localities here sometimes use a specific decibel measure which is legal as well, but harder to mitigate against since who can honestly say they know relative decibel levels.


After work Ill happily do a breakdown on the buffer zone caselaw. Im sort of viewing this as practice, since irl I will soon have to convince our City Council to repeal our panhandling laws (ours incorporates buffer zones) on free speech grounds and I know they are gonna try  to knock my head off when I tell them. So the more airtight my argument is the less likely I am to get publicly screamed  at. But yeah, the minimum standard for buffer zones is intermediate scrutiny which requires narrow tailoring.

[Mr. Reactionary]

So to avoid spending 12 hours writing about info unnecessary to this conversation, lets just take as fact that in analyzing the constitutionality of government laws that burden speech, the Supreme Court applies different tests depending on the type of law in question. The hardest test is called strict scrutiny and I think maybe 3 laws have ever survived the test. That test is typically for the more egregious laws that are purposefully targeting viewpoint or content for disfavored treatment or are just total bans on speech. That is not what I will be discussing.

Laws that are content and viewpoint neutral (I.E. not singling out just "annoying" speech; Coates), that are merely regulating the time, place, and manner of speech in traditional public fora are subject to a test called intermediate scrutiny. Traditional public fora include public streets, sidewalks, and medians, usually parks, and other places held out to the public for that purpose. (Pinette). So a content/viewpoint neutral buffer zone on where in a public forum people may speak would be judged based on the intermediate scrutiny test.

Intermediate scrutiny requires a law to satisfy 3 main elements: 1. The law must be to further a significant government interest 2. The law must be narrowly tailored to only burden the problem speech, and 3. There must be adequate alternative channels for the speech being limited. (Ward). Narrow tailoring need not be the least restrictive means on accomplishing the interest, however it must be related to actual not speculative harm, must have a material impact on that harm, and must not be overinclusive or underinclusive in regards to the burdened speech. In other words, the government may not regulate speech in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.

No one disputes you on 1. Public safety is undeniably a significant government interest. 2 and 3 however will be extremely situational. Mobile buffer zones are dead on arrival. (Schenck). Fixed buffer zones in public fora in every situation without regard to actual need are doomed to fail constitutionally. That's not to say all fixed buffer zones are prohibited. They've been upheld against protesters within a fixed distance of schools during school hours (Grayned), protesters within a fixed distance of a polling place during an election (Burson), and protesters in front of private homes (Frisby). However they often get struck down for not being narrowly tailored, as with protesters in front of some homes (Carey), speech within a fixed distance of an airport terminal (Jews for Jesus), protesters within a fixed distance of foreign embassies (Boos), and speech within a fixed distance of an abortion clinic (McCullen). Plus, there is a difference between imposing a speech buffer zone and ban on obstructing the entrances to somewhere (Cameron).

You mention Hill, however that law passed the narrow tailoring requirement with a double buffer zone design, not merely a single fixed buffer zone. That law had an initial fixed buffer zone where speech was allowed, and then a secondary buffer zone less than 10% of the size of the first zone within that first zone where persons entering the second zone could not be approached. And even then, the Court was relying on the argument that the secondary buffer only prohibited unsolicited approaching not all speech activities. In McCullen, it was mentioned that at least in 2015, Massachussetts was the only state with a fixed buffer law against speech around abortion clinics and the Court struck that down. I cant imagine there are any left in Lincoln.

In conclusion, yes a fixed buffer zone in a public forum that restricts speech activities requires intermediate scrutiny. The proposed amendment posits a standard that is insufficient to pass intermediate scrutiny. Therefore the proposed amendment opens Lincoln up to legal liability for little benefit ... especially since yall would lose under stare decisis.

Sources:
Cameron v. Johnson, 390 U.S. 611 (1968)
Coates v. Cincinnati , 402 U.S. 611 (1971)
Grayned v. Rockford, 408 U.S. 104 (1972)
Carey v. Brown, 447 U.S. 455 (1980)
Board v. Jews for Jesus, 482 U.S. 569 (1987)
Boos v. Barry, 485 U.S. 312 (1988)
Frisby v. Schultz, 487 U.S. 474 (1988)
Ward v. Rock against Racism , 491 U.S. 781 (1989)
Burson v. Freeman , 504 U.S. 191, (1992)
Capitol Square Review Bd. v. Pinette , 515 U.S. 753 (1995)
Schenck v. Pro-Choice Network , 519 U.S. 357 (1997)
Hill v. Colorado , 530 U.S. 703 (2000)
McCullen v. Coakley , 134 S.Ct. 2518 (2014)

[Mr. Reactionary]

While I really appreciate your argument (and we should discuss how to make this bill constitutional), I think this paragraph puts a bit too much faith in Atlasia's judicial system.

Atlasian judges do not believe in standing, let alone stare decisis

PiT, Blair, and the Chief would likely side with stare decisis, and Ilikevernin resurrected standing this year. Id like to think we could have a somewhat normal, functioning system.