"No experiment can be more interesting than that we are now trying, and which we trust will end in establishing the fact, that man may be governed by reason and truth. Our first object should therefore be, to leave open to him all the avenues to truth. The most effectual hitherto found, is the freedom of the press. It is, therefore, the first shut up by those who fear the investigation of their actions." --Thomas Jefferson to John Tyler, 1804.

Taking offense

At the opening of its sound decision Friday in Edward Gathright v City of Portland, the 9th Circuit Court of Appeals got it wrong.

Its opening line defined the issue at stake this way: “This case concerns the intersection of two First Amendment rights: on the one hand, the classic right of an individual to speak in the town square; on the other hand, the interest organizations have in not being compelled to communicate messages not of their choosing.” The first is correct, the second is not, and – even if ironically – that is why the decision, sustaining free speech, was spot on.

Gathright is a well-known Portland character often seen preacing his version of the Word of God in downtown area locations, including two spots usually considered public squares, places where people periodically do stand and speak: Tom McCall Waterfront Park, on the Willamette River, and Pioneer Square, in the middle of downtown. Both also are often used for arts and other events.

The 9th Circuit describes the case:

Plaintiff Edward Gathright is an evangelical Christian who preaches outdoors to the general public. In recent years, he has taken to doing so in various public locations in the City of Portland, including the Pioneer Courthouse Square and Waterfront Park, and often at privately sponsored, City-permitted events open to the public in those venues. Gathright himself has observed that it is “not unusual” for people hearing his jeremiads “to become upset” or “angry” when, for instance, he calls women “whores,” “sluts,” “Jezebels,” “prostitutes” and “daughters of Babylon” or, at an event celebrating tolerance of homosexuality, he dons a t-shirt reading, “Got AIDS Yet?”

On at least six occasions, Portland’s police officers forced Gathright to leave the open events he attended by threatening him with arrest for trespass. They did so not because Gathright violated a public nuisance law or like ordinance, but because Portland enforces the right of permit holders sponsoring an event to evict any member of the public who espouses a message contrary to what the permit holder wants as part of its event. Under Portland City Code (“PCC”) 20.08.060, “[i]t is unlawful for any person unreasonably to interfere with a permittee’s use of a Park.” The criminal trespass statute under which Gathright was excluded defines trespass as remaining unlawfully on the premises of an event after failing to honor a permittee’s lawful direction to leave the event.

Read this precisely, and you’ll see that while Gathright’s freedom of speech really is one side of the teeter-totter, the other side is not the ability of an organization to control its own message but rather its ability to control it in a contracted-for public venue. If Gathright wandered into an event held at, say, a downtown hotel and did his thing, he would be removed from the premises and that would be that. The organizations holding events in public locations gain some public visiblity but if they’re asking other people to give up free speech rights, they may be asking a bit much.

Think it through: This case is really about the extent to which governments can contract away the right of citizens to say their piece on public property, which they – all of us – support with taxes and authority. It is also about the right of private entities to determine whose speech is acceptable, and whose not, in public places. How much money is your free speech worth? Or – mayor – how much money is the free speech of your constituents worth?

The city of Portland, to its credit, has amended its ordinance already in the direction of allowing speech more fully. But this case is one of a growing number nationally raising the question: What are our governments bargaining away?

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