It’s rapidly becoming clear to me that New Orleans city officials have concocted some bizarre conspiracy to give away all our money and credibility in civil rights lawsuits. Either that, or they think the Constitution is just an old wooden sailing ship and nothing else.
Given their actions over the past several years, either explanation is plausible.
We all recall how former District Attorney Eddie Jordan decided that a strategy of firing white staffers wholesale would not run afoul of basic civil rights protections, just as we remember how former Police Chief Eddie Compass decided that confiscating every gun in the city following Hurricane Katrina would comport with state law and the Second Amendment.
Now into this ignominious category enters Councilwoman Kristin Palmer, who sponsored an ordinance designed to crack down on aggressive panhandling that passed the Council this past October which included this little gem:
“It shall be prohibited for any person or group of persons to loiter or congregate on Bourbon Street for the purpose of disseminating any social, political or religious message between the hours of sunset and sunrise.”
As l typed that, I believe that the Constitution just keeled over and vomited, then coughed up blood and gave up the ghost while convulsing in a fetal position (metaphorically, of course).
Every attorney knows that under the First Amendment, content-based restrictions against speech are subject to the highest level of scrutiny – “strict scrutiny.'” This means that the subject speech should not be restricted unless there is a compelling government interest involved end the law is narrowly-tailored to meet that interest (i.e., that it does not restrict other speech).
The most obvious problem with Palmer’s ordinance is that the City of New Orleans has no legitimate interest in prohibiting the expression of “social political or religious message(s)” between the hours of sundown and sunrise on Bourbon Street. Although so-called “time, place and manner” restrictions can be constitutionally-permissible, Palmer’s ordinance expressly targeted certain types of speech that are afforded the highest level of constitutional protection.
Apparently, though, this ordinance has not been enforced by the NOPD. In an uncharacteristic display of restraint and discretion, New Orleans’ constabulary has not been arresting street preachers and political activists to enforce the arbitrary, illegal will of the City Council. At least somebody is looking out for the city coffers.
Alas, there has been one city figure, Leo Watermeier, who has been abetting this clear First Amendment violation. As a formal mayoral candidate and State Representative, Mssr. Watermeier should know better than to endorse any law that imposes content-based restrictions on free speech, but he recently wrote to Councilwomen Palmer and Clarkson to push for the enforcement of this ridiculous, illegal law.
Don’t get me wrong; I understand where Watermeier is coming from. Fire and brimstone street preachers on Bourbon can be irritating when people are just trying to have a good time. However, the solution is not to squelch their speech, but to ignore them. Furthermore, to the extent these zealots are harassing people, blocking traffic or generating too much noise, there are other laws to keep them in check that can be enforced (provided the enforcement is not just a pretext for shutting them up).
When the government tells people they can be arrested merely for speaking their minds in a public place, the censors immediately become the bad guys. The idea that a person could be arrested for carrying a sign saying “Sinners Repent” on Bourbon after sundown is frightening, more frightening than anything a street preacher could yell at me.
The City Council needs to do more than just ignore the ordinance it passed; it needs to repeal it immediately. And we need to give our city officials some remedial classes in basic civics.
Owen Courrèges, a New Orleans attorney and resident of the Garden District, offers his opinions for UptownMessenger.com on Mondays. He has previously written for the Reason Public Policy Foundation.