Thursday, May 15, 2003
Ninth Circuit Rejects First Amendment Challenge to Protest Ordinance
From Staff and Wire Service Reports
A Los Angeles ordinance limiting the size of any wooden object used at a public demonstration does not violate the First Amendment, the Ninth U.S. Circuit Court of Appeals ruled yesterday.
The panel affirmed the conviction of a local animal rights activist sentenced to 30 days in jail. Los Angeles Superior Court Judge John Gunn—since retired—imposed the sentence on Pamelyn Vlasak after she refused probation for violating Los Angeles Municipal Code Sec. 55.07(a).
The ordinance was enacted in 1978, in response to injuries suffered by officers at civil rights demonstrations, and provides that “[n]o person shall carry or possess while participating in any demonstration, rally, picket line or public assembly, any length of lumber, wood, or wood lath unless that object is one-fourth inch or less in thickness and two inches or less in width, or if not generally rectangular in shape, such object shall not exceed three-quarters inch in its thickest dimension.”
Vlasak is married to fellow activist Dr. Jerry Vlasak—who has also been arrested at several protests—and still uses the name Pamelyn Ferdin professionally. A child actress in the 1960s and 1970s, she was the voice of Lucy in several Peanuts TV specials, as well as a feature film, and still does voiceovers.
Her jail sentence stemmed from a 1999 demonstration at a performance of Circus Vargas at Pierce College in Woodland Hills.
While the ordinance was designed to curb the use of thick wooden sticks attached to signs, Vlasak was arrested for having a bull hook—a metal hook, about 31 inches long and about 1.5 inches thick, attached to a long pole used by elephant trainers. She and other demonstrators also displayed photographs allegedly depicting how the bull hook is used to harm the animals.
Her attorney said she was exercising her rights of free speech after demonstrating how the object can be cruel to elephants.
“She was arrested for possessing something that somebody was using 100 yards away,” Paul Jensen of Virginia told the Associated Press. “She’s the one arrested and the person using it was not. Interesting irony?”
Candice Horikawa, a Los Angeles deputy city attorney, told the AP it was the first time the law was challenged in the federal appeals court. Horikawa said Vlasak’s arrest was a proper application of the law.
“At the time she was arrested, she wasn’t threatening anybody with it,” Horikawa said. “If it can hurt an elephant it has the potential to hurt a human being during a protest.”
Jensen said he was considering asking the court to reconsider its decision or petitioning the U.S. Supreme Court to nullify the conviction.
Judge M. Margaret McKeown said the ordinance was not vague or overbroad, and is narrowly tailored to serve the city’s compelling interest in safety.
The enactment, she said, “makes parades and large public gatherings safer by banning materials that are most likely to become dangerous weapons without depriving the city’s residents of the opportunity to parade or protest with traditional picket signs.”
It also leaves protesters with ample alternative means of communication, including the use of leaflets, photographs, megaphones, and “a panoply of other devices.”
McKeown distinguished Edwards v. City of Coeur d’Alene, 262 F. 3d 856 (9th Cir. 2001), which nullified a demonstration law from Coeur d’Alene, Idaho that was more expansive than the Los Angeles ordinance. The 1999 Idaho ordinance was passed in an effort to tighten control of Aryan Nations parades in Coeur d’Alene.
The ordinance specified that “[p]lacards or signs may be worn or carried, but shall not be affixed to any wooden, plastic or other type of support.” The appeals court said attaching a handle to a sign or placard was constitutionally protected speech permitting protesters to reach their intended audience during the noise and confusion of a demonstration.
Under the Los Angeles law, McKeown noted, demonstrators are free to attach signs to sticks or poles of any length, provided that the thickness limitation is not exceeded.
Vlasak took her case to the Ninth Circuit after the Los Angeles Superior Court Appellate Division affirmed the conviction in an unpublished opinion, the state Supreme Court denied her habeas corpus petition, and U.S. District Judge Florence Marie Cooper of the Central District of California ruled that her federal petition failed to demonstrate that the state courts were wrong.
The case is Vlasak v. Superior Court, 02-55977.
Copyright 2003, Metropolitan News Company