The sight of protesters each day in front of the Planned Parenthood clinic on East 29th Street in Bryan is hardly breaking news. Each individual has his or her own method: some hold signs, some pray and some offer alternatives to those entering the clinic.
Anyone looking closely at those holding the signs will notice that they are either holding them up in the air or resting them on their feet. Why? The city of Bryan now says that having signs on the ground violates city’s sign ordinance.
Bryan’s code and its enforcement methods have violated the protesters’ First Amendment rights of freedom of speech and assembly by inhibiting their means of peaceful protest.
Bryan city officials agree. Or at least they used to.
In a letter that is now public domain dated Feb. 8, 2001, Michael Cosentino, an attorney representing the city, said, “… if a protester wants to place a sign in the right of way for a few hours during a peaceful demonstration, remove the sign when he leaves for the day and the sign creates no hazards or obstructions while it is in the right-of-way, the First Amendment will not allow the city to apply its sign ordinance in a way that would prohibit him from doing so or require him to wait 14 to 21 days to obtain city council approval.”
Obviously, something changed, and it was not the First Amendment. If forbidding protesters to place a sign in the right-of-way was unconstitutional three years ago, it stands to reason that it is unconstitutional today. It is ridiculous to think that the constitutionality of the issue can change in such a short period of time.
According to municode.com, the Bryan City Ordinance says, “It shall be unlawful to place a sign upon a public street, public sidewalk, public alley, public right-of-way, public curb or other public improvements in any public street or grounds …” Furthermore, it states that anyone who is to install such a sign should be issued a permit and pay appropriate fees.
Numerous exceptions are made to this rule. Among these are political signs, signs not visible from the street and hand-held signs.
Cosentino’s letter states that protesters’ signs are another exemption.
However, the city need not make this exception in its ordinance; the First Amendment already guarantees it. Cosentino said a handheld sign is equivalent to wearing a T-shirt that contains a message or slogan. Since signs touching the ground are prohibited, the protestors should simply hold them up.
David Bereit, executive director of the Coalition for Life, said he strongly disagrees. For more than the first three years that the Coalition protested in front of Planned Parenthood, there were no problems regarding the signs. In July 2002, after a story was published by The Eagle, several police officers appeared at the Coalition’s next large gathering and ordered the signs be removed, citing violations of the city’s sign ordinance.The Coalition complied.
Soon after that incident, a volunteer from the Coalition for Life drove down the streets of Bryan and counted dozens of sign violations that the police officers seemingly failed to notice while driving to order the removal of pro-life signs.
David Bereit said Cosentino originally told him that the ordinance enforcement was complaint-driven. However, when later questioned by The Battalion about the enforcement policy, he said that they are partly complaint-driven and partly issued by officers who notice violations.
The Coalition for Life sent an e-mail on Nov. 21, 2002, to its supporters announcing that a lawsuit had been filed against the City of Bryan by the Coalition and six other individuals. In the e-mail, the Coalition states, “Since July of this year, the city of Bryan has … begun targeting pro-life signs and free speech for removal from the public right-of-way in front of the controversial facility.”
A public example of this occured last summer when a protester, acting as an individual, decided to place a flag flying at half-mast on the public right-of-way. After Planned Parenthood complained, the Bryan police ordered that the flag be removed saying it constituted a sign.
The controversy that followed led to businesses having to remove flags, and Boy Scouts not being allowed to place flags out as part of their fundraiser.
After many citizens complained, the policy was changed so that flags can be placed on the public right-of-way as long as the adjacent property owner gives permission. Thus, the businesses and the Boy Scouts were satisfied, yet the pro-life protesters still could not put up a flag since Planned Parenthood refused to give them permission.
This raises the question: What is the purpose of a public right-of-way if the adjacent property owner can regulate it to some degree? Since today the city says that the property owner can determine if a flag can be placed there or not, why not let them decide who can stand on the right-of-way or not? So much for freedom of speech. Mark down a win for Planned Parenthood. Sadly, this scenario is blatantly unconstitutional. It is also a reality.
Instead of leaving everything as it was and allowing flags to be in the public right-of-way as they always had been, the city changed its policy primarily due to Planned Parenthood’s complaint. As a result, the Coalition for Life suffered unjust discrimination.
On Dec. 15, the Coalition for Life and the city of Bryan presented their case before a federal judge in Houston. Yesterday, on Feb. 3, the judge declared that since the city changed its ordinance, it is now constitutional.
However, he failed to address the questions of whether or not rights were violated before the ordinance was changed and if the ordinance had been applied unequally against the Coalition for Life. It is obvious, though, that the ordinance was originally unconstitutional, otherwise it would not have been changed.
Hopefully upon appeal the two unanswered questions will be addressed and the constitution upheld.