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HomeMy WebLinkAbout2010-0105 Documents Submitted AMERICAN CIVil LIBERTIES UNION OF OREGON P.O. BOX 40585 PORTLAND. OR 97240 T/503.227.3186 P.O. BOX 50426 EUGENE, OR 97405 T/541.345.6162 WWW.ACLU-OR.ORG IN FORlACLU-OR.ORG ....:::.IDe~1 ;r....~-:l1i!..~f:IdD h"..c;i ~ft;.~ 'C 0<.' '.' '..... , ;; . . ' " . , AMERICAN CIVil miERT(ES'UN'ION . of OR'EGON, . ~ '/"~" ~ - '"- , . -- ,,'. ~ . Diana Shiplet Executive Secretary City Hall 20 East Main Street Ashland, OR 97520 Dear Ms. Shiplet, RECEIVED DEC31 2009 December 29,2009 The enclosed correspondence is for the Ashland Mayor and City Council with two additional copies for City Attorney Richard Appicello, and City Administrator Martha BeI1nett. I appreciate your help in seeing that they are distributed appropriately. Sincerely, ~ Sy;rzt;t Claire Syrett ACLU of Oregon Because Freedom Can't Protect Itself AMERICAN CIVIL LIBERTIES UNION OF OREGON P.O. BOX 40585 PORTLAND. OR 97240 T/503.227.3186 P.O. BOX 50426 EUGENE, OR 97405 1/541.345_6162 WWW.AClU-OR.ORG IN FOiCIACLU-OR.ORG 6=@e~7 =<ECEIVED DE:C3 1 1009 AMERICAN CIVIL LIBERTIES UNION .f OREGON . December 29,2009 Mayor John Stromberg and Ashland City Council City Hall Ashland, OR 97520 Dear Mayor Stromberg and City Council Members: I am writing on behalf of the ACLU of Oregon and our Southern Oregon Chapter to ask that you reconsider your current course of action to adopt an expanded anti-nudity ordinance in the City of Ashland. Summary We wish to call to the Council's attention two erroneous assumptions in the City Attorney's proposed ordinance on nudity, as modified by Councilmember David Chapman on December 15, 2009: (I) That nudity which is not presented as political or artistic expression cannot be "protected expression"; and (2) That the ordinance's chances of surviving a legal challenge are strengthened by giving city officials the authority to permit political and artistic nudity. The primary constitutional deficiencies in the pending ordinance are: (I) It discriminates based on the expressive content of the nudity, favoring political and artistic expression over social. lifestyle, or personal expression; and (2) It is vague and overbroad, giving officials unbridled discretion to permit or ban nudity based on their subjective view of whether it is "protected expression." 1. Errors in City Attorney's Presentation First, the City Attorney, quoting from Justice Sandra Day O'Connor's opinion in City of Erie v. Pap's, 529 U.S. 277 (2000), has stated that "Being in a state of nudity is not an inherently expressive condition." From this citation, the City Attorney appears to suggest that only political or artistic nudity is protected expression (City Attorney memo to the Council, September 22,2009, and . proposed ordinance submitted to Council December 15,2009). Thus, the City Attorney has attempted to exempt political and artistic nudity from his proposed ordinance. See City Attorney's proposed ordinance of December 15,2009, Section 10.44.012, last sentence ("Nothi,ng in this Chapter shall be construed to prohibit any act protected under the circumstances by the federal or state constitution"), together with "Whereas" clauses numbers 5 and 9. Because Freedom Can't Protect Itself As the Oregon Supreme Court has emphasized, Article I, Section 8 oJ the Oregon Constitution "precludes... laws directed at limiting or restricting any conceivable kind of cornmunication." State v. Ciancanelli, 339 Or. 282 (2005) (emphasis added). A person walking nude down the street of any non-nudist town is making a statement, and the Oregon courts are not likely to accept Justice O'Connor's constricted view of what constitutes expression. Protection may not extend to deliberately targeting one's nudity at children, which suggests sexually provocative intent and may therefore violate the State law prohibiting public indecency. But, contrary to the City Attorney's assumption, almost any nudity which does not constitute sexual provocation is likely to be found by the Oregon courts to be protected expression. At the least, it constitutes social, philosophical, lifestyle or personality expression, just as much as hairstyles, beards, and types of clothing. Second, the City Attorney suggests that giving discretion to city officials to permit nudity which the officials consider to be "protected expression" will satisfY constitutional requirements. See City Attorney's December 15th submission, "Whereas" clauses numbers 5 (protection of expression "is determined on a case by case basis") and 9 ("individuals desiring to engage in protected expression involving nudity are encouraged to coordinate with responsible public officials"). To the contrary, conferring such discretion on public officials will render the ordinance unconstitutionally vague. See discussion below. 2. The December 15th proposed Ordinance is Unconstitutional. First, the proposal is unconstitutional because it discriminates on the basis of the expressive content of any particular act of nudity. Federal courts have ruled that the government can restrain or ban certain kinds of conduct, as long as the law or ordinance is not discriminating between different points of view reflected in that conduct. In short, the government's treatment of expressive conduct must be "content-neutral". See, for example, United States v. O'Brien, 391 US 367 (1968), as recapitulated in Ward v. Rock Against Racism, 491 US 781 (1989). Thus, the ACLU of Oregon is now suing the United States Secret Service because in October 2004 the Secret Service directed the local police to move a group of anti-Bush demonstqllors two blocks away from the Jacksonville Inn where President Bush was dining, while allowing a pro- Bush group to remain in the same vicinity. However, Oregon appellate courts repeatedly have held government entities to a higher standard under Article I, section 8, the Oregon free expression clause. In Oregon, there is no hierarchy of expression; all forms of expression - regardless of the content - is protected by the Oregon Bill of Rights. For example, under the federal First Amendment, commercial speech has not been protected to the same extent as political or artistic expression. However, in Oregon all forms of speech are protected equally, including commercial speech. The proposed December 15th nudity proposal adopts the federal hierarchical approach which would violate the Oregon Bill of Rights. It would allow some forms of non-sexual nude expression (political and artistic), while prohibiting others (social, lifestyle, personal). This is unconstitutional because it treats differently the same physical form of expression - non-sexual nudity - depending on what the act is intending to express. In short, the ordinance's treatment of this form of expression is not "content-neutral." Second, in exempting "protected expression" from the ban, the pending proposal provides no guidance to city officials as to what constitutes protected expression, thus leaving it up to their unbridled, subjective discretion. A long line of court decisions holds that this is unconstitutional. See, for example, Seattle Affiliate of the October 22nd Coalition to Stop Police Brutality v. City of Seattle, 550 F.3d 788 (9th Cir. 2008). Third, the general rule regarding offensive public expression is much more protective under the Oregon Constitution than in the federal system. For example, in State v. Johnson, 345 Or. 402 (2008), Johnson climbed out of his pickup truck; and went face-to- face with an African-American woman whom he'd been bombarding with racist, vindictive, and foul language, including calling her a "nigger-dyke." Someone called the police, and Johnson was arrested and convicted of violating an Oregon statute making it an offense to use confrontational and abusive speech to another person in a public place. In the federal courts, Johnson's conviction may have been affirmed under the "fighting words" doctrine of Chaplinski v. New Hampshire, 315 U.S. 568 (I 942). But the Supreme Court of Oregon, on the basis of Article I, Section 8, reversed the conviction, explaining: "Harassment and annoyance are among cornmon reactions to seeing or hearing gestures or words that one finds unpleasant. Words or gestures that cause only that kind of reaction, however, cannot be prohibited in a free society, even if the words or gestures occur publicly and are insulting, abusive or both." (345 Or. At 412). For all of these reasons, the ACLU believes the proposed ordinance is unconstitutional and would be overturned by the courts. We urge you to reject it. Sincerely, OU/;d~/~~/.-e/ David Fidanque Executive Director cc: Derek Volkart, Chair, ACLU Southern Oregon Chapter Ralph Temple PfIlLIP C IANC. AGI\l7. LCS\17 $uh1ndttJ \{~2010 rw~ a-tM om. J,CS\I71141 . CAL. LCS\l7-5500 758 B Strcd . A5hland. Orc/jon 97520 Rcsidcncc 541 . 482,8659 Officc!fax 541 . 482-5387 c-mail, Philip@mind.ncl. December17, 2009 To: Mayor John Stromberg City Council Ashland Daily Tidings Deltra Ferguson - sau Women's Resources Center Diane Eor.tra.tz - SOU Campus Health and Wellness Center (Note to Ashland Daily Tidings: I know you want material sent via e-mail to suit your technology but I am computer semi-i!literate. I hope you consider this important enough to take the time & trouble to print it. Many thanks in advance.) I am troubled by the reported testimonr- at the tuesday, December 15th Council meeting by Deltra Ferguson quoting information from Diane Portratzof the SOU Campus Health & Wellness Center. I have been a Licensed Clinical Social Worker in California and Oregon for 41 years. I also served on the California Bd. of Behavioral Sdience Examiners. My practice specializes in people with serious health problems, and includes crisis, suicide, and PTSD. I have taught at two universities and one college. lam a published author. I have also served as a court mediator in custody and parenting issues, so I have an extensive acquaintance with real and alleged child abuse. Portratz's comments are incorrect. What she says sounds like common sense - but it isn't, Shecis apparently starting with a conclusion and ~irrgbackwards (from trauma to flashback experience of the trauma by seeing a naked person). Her comments reflect bad social science. There is .no empirical evidence that seeing nudity in a public place does any such thing,_ to' a child. The reason for this is that:PTSD presumes fully formed defenses, which the child does not have. The defense used in such instances is repression _ and repression either works or not. Children suffer immediately. We see signs of this immediately, which is why we need to be sensitive to such abuse and treat immediately. PTSD presumes a long period of repression, of "which the young child is incapable. Therefore, tRe incidence of PTSD among children who are subjected to sexual abuse is negligible, and hard to treat when it occurs.:' In re.: Nudity Ban and PTSD in Children - 12/17109 - p. 2 PTSD is a popular diagnosis now for obvious reasons, and is a legitimate diagnosis,..ont not .in.children.Ms.Portratz has not been trained in child therapy or PTSD. Councilor Voisin is correct. And - we do have appropriate laws dealing with (usually clothed) sexual predators. Page I of2 emwJ ~ 1/6/20t"O rw~ctuv\ Letters to the Editor Letter at Length January 5 January 05, 2010 8:55 AM Ashland: an x-rated embarrassment You won't see a "nudity prohibited" sign in Ashland. In a situation which flies in the face of all common sense, the City Council has continued its city ordinances which allow nudity, barring only the display of genitals in downtown areas or city parks. The debate arose over individuals (male) who have come to Ashland and elected to walk around as nature made them in close proximity to elementary schools. Jackson County citizens should be concerned. Jackson County does not want to become known as a safe harbor for exhibitionists nationwide. This sort of conduct should not only not be permitted, but should be the commission of a crime (public nudity, indecent exposure - of something of that ilk). Instead, the brain trust of liberal elites on the City Council who opposed expansion of the no-nudity zone to within 1,000 feet of schools tell us it is a trivial issue, not worthy of their time. The councilmember supporting the ban, a Medford police officer, correctly points out that the risk to children who have been abused of having that brought to their minds again by naked men in the supposed "safe zone" of their schools is real. More real is a concern about the intent of such exhibitionists who can't limit themselves to private locations, but have to parade around in front of small children. What else do they have in mind? Self-described community organizer (a credential familiar these days a la Barack Obama) Eric Navickas, a city councilman, comments on the nudity issue in support of a woman wanting to walk naked in a family-oriented parade, saying if she can't be in the parade, it would be "an interesting commentary on our society that we're willing to tolerate dead bodies through our aggressive foreign policy from the war, but not healthy, naked bodies." This socially conscious city official can't consider any potential harm to children, any impropriety in nudity at a family event. He instead has to make this a platform to propound his liberal political views. Now, Navickas has planned an exhibit, "The Nude," at his downtown gallery in response to the issue being reconsidered. Now, Ashland has become a national laughingstock over this issue. Recent coverage on Fox News airs the absurdity of this even being an issue that takes more than a moment's thought. Ashland is apparently planning to revisit the issue again, and now the City Council is proposing a compromise: Limit nudity, but decriminalize it by making it a "parking ticket" type of violation. As cartoon character Charlie Brown says, "Good grief." Do these people have a grip on reality? Ban public nudity, make it a crime to violate the ban, protect children and families, and make Ashland a family-friendly place, not the "x-rated" embarrassment of Jackson County. Raymond Smith Central Point http://www.dailytidings.com/apps/pbcs.dllJarticle?AID=/20100105/0PINION04/l050301l-...1 /5/20 I 0 From: To: Date: Subject: Martha Bennett Diana Shiplet 1/5/201012:21 PM Fwd: Sneak Preview ~ ~ 1/5/Z0Jl) (lW~ ~~ Can you please get this to Barb and to the Council for tonight's meeting. Thanks Martha Martha Bennett, City Administrator City of Ashland 20 East Main Street, Ashland OR 97520 (541) 552-2103 or (541) 488-6002, TTY 800-735-2900 FAX: (541) 488-5311 This email is official business of the City of Ashland, and it is subject to Oregon public records law for disclosure and retention. If you have received this message in error, please let me know. Thank you. >>> Sneak Preview <sneakorercDmind.net> 1/5/2010 12:19 PM >>> To: Ashland City Council From: Curtis Hayden, editor/publisher, Sneak Preview Re: Exception to news rack ordinance Proposal: The Sneak Preview doesn't have a big dog in this hunt since we're only talking about ONE location in all of Ashland where we're affected by this ordinance. That one location, however, has been a major distribution point for this newspaper for the last twenty years, and we would'like an exception to the rule. In fact, we are underneath an awning in front of Louie's and not within six feet from the curb. We have permission from the owner of Louie's to have our rack(s) there. The 'racks are maintained and cleaned up almost on a daily basis, and they are rarely empty. To comply with the regulations, we are having special, weather-proofed racks built which people can safely open from the top and not swing out onto the sidewalk (unlike the city-sponsored boxes which, in addition to harboring black widows, swing outward and pose a danger to children and small animals... not excluding the black widows) During an average month, the Sneak Preview goes through 1,000 copies at this location. If we were ~forced" to place them in city-sponsored boxes with eight other publications, I can guarantee you that we wouldn't go through 1 00 of them in a month. Most people will not take the time to stand in front of a huge box and try to decipher which ones they want. If anyone had asked my opinion when this ordinance was being written, I could have told him or her that. So by requiring me to give up this ONE location and get thrown in with the teeming masses, you are "restricting the expressionn of this newspaper. I respectfully ask for an exception to this ordinance. Sincerely, Curtis Hayden