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Thursday, February 21, 2008

Round one to the public

Posted By on Thu, Feb 21, 2008 at 12:00 AM

Round one in the fight between Esperanza and the City over the new Parade Ordinance goes to Esperanza and the San Antonio Free Speech Coalition. The groups claim that the ordinance, passed in late November by council, is unconstitutional because, among other offenses, it allows the chief of police to discriminate against groups based on content by charging for "security" at his discretion, and subsidizes the costs of some First Amendment marches, but not others.

U.S. District Judge Xavier Rodriguez issued a ruling this afternoon that grants the plaintiffs' request for a temporary injunction, finding that the ordinance as written is unconstitional on three counts:
• It grants the chief of police overly broad discretion in assessing costs
• It doesn't clearly distinguish between traffic-control costs and security costs
• It exempts funeral processions and government agencies operating within the scope of their functions

"Basically, he did the right thing," said plaintiffs' attorney Amy Kastely. The ruling addresses one of the coalition's main concerns, that the police could price groups with less-popular or controversial messages or memberships out of a permit by assessing high "security" costs.

But Rodriguez sided with the City on some key issues that Kastely says they will address more fully when they go to trial this fall. The Court did not object to the City subsidizing specified events, such as the annual MLK march, or the assessment of traffic-control and cleanup costs. The ruling also found that the ordinance provides sufficient alternatives for groups that cannot afford the permitting process (read: sidewalks).

Kastely says the coalition has new evidence to present regarding permit-fee waivers. "We just looked at the permit applications for the first five years," she said. "The practice is much more extensive than just the three in the ordinance." She also expressed dismay at the judge's position on parade alternatives for poor or indigent groups. "On that one we're just disappointed," Kastely said. "We will bring out at the trial the lack of viability of sidewalk marches -- for the elderly, for anybody who's got physical challenges at all."

Between now and the trial date -- currently set for October 14 -- the City could choose to address the portions of the ordinance the judge identified as unconstitutional, and ask the court to lift the temporary injunction, but Kastely says the coalition will be back in front of the bench either way. In the meantime, "What it means is that the International Women's Day March will go on as a march in the streets."

The Current has calls into the City seeking comment.

Read Judge Rodriguez's order in pdf:

To download click here

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