Marketplace Of Ideas
Do citizens have the right to free speech at the Monterey street market?
Thursday, March 25, 1999
Last week, local envirnomental activist and former Monterey mayoral candidate Barbara Bass Evans was issued a ticket at the Tuesday night Monterey Marketplace on Alvarado Street, a street fair held there every week by the Old Monterey Business Association (OMBA). She was gathering signatures for a petition to have an initiative restricting coastal development placed on the ballot.
Evans was cited for "activities conducted upon quasi-public property" in violation of Section 22-25 of the Monterey city code. The city code states that groups and individuals may disseminate ideas and information, and may solicit contributions, "donations or otherwise," on quasi-public property, but "shall do so in a manner which does not constitute an obstruction of the free flow of pedestrian or vehicular traffic," or interfere with the "lawful, normal, ordinary and efficient business..."
The city code defines quasi-public as "property owned which, although privately owned in whole or part, is held open to the general public for commercial purposes." The code list examples such as shopping centers, wharves, airports, business blocks and stadiums.
But Evans and her attorney say she didn''t break any rules.
"Not only did she not do anything wrong, she did everything right under the city ordinance," says Evans'' attorney Michael Stamp. "She was by herself. She didn''t have any kind of table set up, she did not take up any space reserved for the merchants. She had one-on-one conversations with people, she was respectful. She was not interfering with people''s business."
So what did Evans do wrong? Nothing, says Stamp. What Evans did do, he says, was peacefully practice her right to free speech and to petition the government on a city street as guaranteed by the First Amendment of the United States Constitution.
But, according to Monterey City Attorney Bill Conners, citizens'' First Amendment rights don''t necessarily apply on Alvarado Street on Tuesday evenings during the market. Because Alvarado Street is leased to the OMBA for the street market, he says, it becomes private property during those hours.
Private property is also protected by the U.S. Constitution under the Fifth and Fourteenth amendments, which states that persons cannot be denied their private property without just compensation or due process of law.
The struggle between freedom of speech rights and property owners'' rights has a long history of conflict in this country. A similar issue came before the California Supreme Court in 1979 and the U.S. Supreme Court in 1980. In the case Pruneyard v. Robins, a group of students in Campbell had set up a card table in the main central courtyard of a privately owned shopping center. The students were handing out literature and collecting signatures for a petition opposing a United Nations resolution.
In that case, even though the students had other available venues to gather signatures, the court ruled that the state Constitution protects "speech and petitioning, reasonably exercised, in shopping centers even when the centers are privately owned." The U.S. Supreme Court upheld the state''s decision.
But, says, Conners, "It''s up to the court to decide [on individual cases]. You always have the right to regulate time, place and manner on private property. I''ve seen the [city] ordinance upheld by the court, and I''ve seen it overturned.
"The amount of First Amendment rights you have on quasi-public property," he continues, "depends on the nature of the property. Is it more like private property or is more like public property?"
Conners opines that, in the case of the marketplace, Alvarado Street is commensurate with private property because the OMBA controls the market''s function, including who is allowed to be vendors, how and where booths are set up, and how traffic flows. Likewise, the OMBA can control the types of uses allowed in the market, and can thus exclude petitioners and the dissemination of literature.
But Conners'' statements are not consistent, says Stamp, with the code section that Evans was cited under, which addresses uses of quasi-public property.
"First of all, Monterey hasn''t [eliminated free speech] in their ordinances, they have only done it with Barbara downtown," says Stamp. "Nobody has said that Barbara was blocking traffic. What the city rules say and what the city has done are two different things."
Moreover, Stamp argues that because Alvarado Street is a publicly owned space, the market goes beyond the definition of quasi-public. In fact, the city ordinance defines quasi-public as privately owned. Thus, he concludes, Alvarado Street is less "quasi" and more "public" property than Conners'' definition, whether leased to a private organization or not.
"This is a downtown public street that is used a few hours a week for an outdoor market that is designed to attract locals," says Stamp. "The city''s current position seems to be it''s a social event, except when they don''t like what is being discussed. That''s the real evil of this." (Evans'' petition is at odds with the city''s own efforts to create a coastal development plan.)
In light of the city''s own ordinance, Stamp says Evans'' citation doesn''t add up. "What is so strange about this case is that the city''s behavior is so irrational," says Stamp. "One can only conclude that it''s an emotional reaction to the coastal initiative and to Barbara. The city has a notoriously thin skin."
"Barbara Evans was not targeted by the city," counters Conners. "It was not about the content, it has to due with [OMBA Executive Director] Jane Harder asking us repeatedly over the years to kick out people who are interfering with her ability to run that operation. She has an absolute right to control the comings and goings at the marketplace."
Conners also points out that Evans has every right to stand at either end of the market, just outside of it, to gather signatures. Conners says Evans'' insistence on standing within the market parameter is a publicity stunt that''s apparently working.
Moreover, he says, if Evans was allowed to gather signatures at the market, the OMBA would open themselves up to the possibility of having to allow other groups to practice their rights within the marketplace, even hate groups.
But the attorneys do agree on one thing: Ultimately, it''s the court''s call on whether Evans, and all citizens, possess the right to free speech at the Monterey Marketplace. And, one court may soon have the opportunity to make that ruling.
"Barbara," says Stamp, "hasn''t ruled out the option of suing the city." cw