An Aberdeen veteran petitioning to refer the Legislature’s expanded definition of “veteran” to a public vote were expelled from Wylie Park by the city parks supervisor Saturday.
Veteran… petitioning a veterans’ issue… kicked out of a public park… on Memorial Day weekend. Yeesh—I don’t want to be the guy who makes that happen.
Neither did Wylie Park manager Mark Grote, the guy who made that happen.
Around ten a.m. Saturday morning, Aberdeen resident and Vietnam-era Army veteran Ted Fowler began collecting signatures on his HB 1179 petition outside the gate to Storybook Land, one of the attractions in the publicly-owned Wylie Park. Around noon, Ted’s wife Carol dropped by to help. They set up two card tables, out of the way of the flow of foot traffic, with a couple of small signs taped on. Ted and Carol did not hand out any pamphlets or other materials. They simply asked passersby if they were from South Dakota, if they were registered voters, and if they would like to sign the referendum petition. They engaged interested parties in conversation about HB 1179 and the petition drive; they wished ineligible or uninterested individuals a pleasant day in the park.
Between 10:00 and around 13:30, Ted says he and Carol collected 90-some signatures. Ted says that during those three and a half hours, no one complained to him about his petitioning. He saw various park staff wheel by in their golf carts; none stopped to ask what he was doing or gave him skunk eye.
Around or shortly after 13:30, park manager Mark Grote says he received a complaint from a park visitor. In Grote’s words, the visitor asked “how and why” Fowler could be in the park doing what he was doing. Grote says he was not aware prior to that complaint of Fowler’s petitioning. He interpreted the visitor’s statement as a sign that the visitor was offended by what Fowler was doing. Grote says he went to the park gate and told the Fowlers they would have to stop petitioning and leave.
Ted Fowler says it “kinda floored me” to be asked to leave, but he and Carol did so.
When I spoke with Grote Saturday afternoon, about an hour after he shut down the Fowlers’ petitioning, Grote made clear he felt awful asking the Fowlers to leave but felt that as park manager, he was obliged as a city employee to respond to a visitor complaint. Grote said the complaint came from one person. The complaint was not about blocking the sidewalk or harassing visitors or any other infraction; Grote says the complaint was specifically about the petitioning.
Grote said he did not know what specific ordinance authorized his action, but he likened asking the Fowlers to stop petitioning and leave to the response he would make to a complaint about a visitor playing music too loudly in the campground. Grote said he told Fowler (and Ted confirms this statement) that he would call Mayor Mike Levsen to find out exactly what ordinances or rules apply to this situation and get that information to Fowler. At the time of our conversation yesterday afternoon, the mayor had not yet called back (and hey, it’s Memorial Day weekend, so I’m not expecting calls back from city officials until we all get back into the office on Tuesday).
While I discussed various hypotheticals about how Grote would respond to other petitioning activity in the park, an Aberdeen resident walked up to me and said, “Hey, do you have petitions?” I did have my blue petition folder in my backpack. The citizen asked, “Can I sign?” I looked at Grote, he looked at me, and he let me take the man’s signature… on all three petitions in my pack. No one complained.
After leaving the park, I stopped by the police station to see if the Aberdeen Police Department could answer any questions about petitioning in public places. Dispatch sent Patrolman Robert Graham to visit with me (he assured me I wasn’t interrupting the pursuit of any major criminals). I asked Officer Graham if he would stop and cite me or take any other action if he saw me standing in a city park circulating a petition. He said no, not if I wasn’t harassing people or making other trouble. I asked what action he would take it I was petitioning on a city sidewalk or marching around town with a picket sign or a sandwich board. Officer Graham said such activity sounds like protected First Amendment speech, as long as the protest sign doesn’t have dirty words on it.
Before we turn to Aberdeen city ordinance, let us review some broader points of law. The First Amendment applies here, as do South Dakota Constitution Article 6 Section 5 (our freedom-of-speech clause) and Article 6 Section 4 (“The right of petition, and of the people peaceably to assemble to consult for the common good and make known their opinions, shall never be abridged”).
We should also apply case law:
First Amendment rights apply the most in a traditional public forum, such as a public park. In its 1939 decision Hague v. C.I.O. the U.S. Supreme Court explained: “Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.”
The general rule is that government officials may not impose content-based restrictions on speech in a public forum. This means that city officials must not treat different persons and groups of persons differently on the basis of the content (and viewpoint) of their messages. The government can justify content-based speech restrictions only by showing that it has a compelling state interest in imposing them (such as safety or security concerns), and that it has done so in a narrowly tailored way. Even in a public forum, the government may impose reasonable time, place and manner restrictions that are content-neutral, leave open ample, alternative ways for expression and are narrowly tailored. This means that city officials could limit protests to certain hours of the day and perhaps certain locations. Again, the key terms are “reasonable” and “content-neutral” [“Frequently Asked Questions: Assembly,” First Amendment Center, downloaded 2015.05.24].
As a public park, Wylie Park appears to be a traditional public forum. The city cannot restrict petitioning based on the fact that it is political speech. That would not be content-netural. The city cannot issue a blanket restriction on petitioning; “reasonable” restrictions would seem to require that the city still allow some set times and places in the park where First Amendment activity take place, and it must show some compelling interest for such restrictions (I can imagine a “reasonable” ban on petitioning at midnight in the campground or in the middle of an audience during a concert in the park).
With freedom of speech and petitioning in mind, I turn to Aberdeen city code and find nothing that appears to ban petitioning in city parks. Section 36 covers parks. 36.63 lists “Prohibited Activities” in Aberdeen parks. 36.63(8) says one may cast no stone in the park, but that’s literal, no metaphorical. 36.63(3) says “entertainment, exhibition or public speaking” requires “direction and authority of the board,” but the Fowlers were not putting on a show, displaying wares, or making a speech to an audience. None of the prohibitions address petitioning or political activity.
Section 36.38 on “Signs and Concessions” walks up to petitioners and gives them a suspicious look, but it doesn’t say no:
While in a park, no person shall:
- Sell or offer for sale any article or thing whatsoever in any park or parkway, but this prohibition shall not apply to sale of refreshments, art items or other like articles at the concession stands or locations authorized by the board.
- Distribute any circular, notice, leaflet, pamphlet, or written or printed information of any kind to a person not willing to accept it.
- Post, paste, paint or affix any placard, bill, notice or sign upon any structure or thing within any park, or upon any of the fences or enclosures thereof, nor upon any part of any parkway.
- Place or suffer to remain in any park or parkway any goods, wares, merchandise or other articles in the nature of an obstruction to the free use and enjoyment of such park, nor shall any person place any straw, dirt, chips, paper, shavings, ashes, swill or other rubbish, whether offensive to health or not, in or upon the park, nor shall any person throw, deposit or leave any paper, article or thing in the parks or waters therein, except in receptacles provided for waste.
- Solicit, sell, offer for sale, peddle or hawk any goods or services without written authorization from the parks, recreation and forestry department [Aberdeen City Code, Section 36.38, downloaded 2015.05.24].
Ted Fowler was not selling anything. He was not distributing any materials, never mind forcing any materials on unwilling individuals. He did fix small signs to his card tables, not to park property. He did not obstruct the free use and enjoyment of the park (Ted tells me many people were pleased to talk with him and to see that he was petitioning on this veterans’ issue.) He was not soliciting customers for goods or services and thus did not need written authorization under this ordinance.
The parks ordinances do not lay out any restrictions, reasonable or otherwise, on circulating referendum petitions. I can find only two other sections that appear remotely relevant.
Ordinance 34.103 addresses loitering:
It is unlawful for any person to loiter, stand or sit in or upon any public street, alley, sidewalk or crosswalk so as to in any manner hinder or obstruct the free passage therein or thereon of persons or vehicles passing or attempting to pass along the same, or so as to in any manner annoy or molest persons passing along the same [Aberdeen City Code, Section 34.103, downloaded 2015.05.24].
By no account was Fowler hindering free passage or molesting any person. The person who complained to park manager Grote appears to have been annoyed solely by the act of petitioning, but if engaging in political activity or expressing political views in a public place is annoying, then I look forward to the opportunity to attend the Brown County Fair and demand that the Fair Board ban Kristi Noem’s people from wearing their “Kristi for Congress” t-shirts or distributing their buttons and bumper stickers on the public fairgrounds.
Also worth noting: the Aberdeen code book cites SDCL 9-29-10 as authority for the loitering ordinance, and that statute authorizes municipalities to regulate begging.
The other textually relevant statute looks like Section 38, “Peddlers, Solicitors and Itinerant Merchants.” However, that section defines “solicitor” and “canvasser” in strictly commercial terms and thus appears to have no bearing on individuals engaged in non-commercial, political activity. Residents like Fowler need no license to go door to door, not to mention work public forums like Wylie Park, to circulate referendum petitions.
If the Park and Recreation Board has some additional rules, they don’t appear to be online. If rules exist banning petitioning in public parks in Aberdeen, we have a serious Constitutional problem. Citizens engaged in petitioning and other First Amendment activities already see their ability to communicate with citizen whittled down. Wal-Mart and other big stores don’t allow political activity on their property. Aberdeen’s Lakewood Mall wouldn’t allow me to petition on their turf, even when I offered to rent a kiosk like any other vendor. Post offices like the main branch in Rapid City are designed in such a way to thwart petitioners’ access to customers. Banning petitioners from public parks would take away one of the few remaining opportunities petitioners have to make their case and collect signatures in a place where they can count on finding many of their fellow citizens.
The individual who complained about Ted Fowler’s petitioning appears not to have had any justification for asking for Fowler’s removal from the park. City ordinance does not ban petitioning in public parks. Any park rules banning petitioning would appear to violate the First Amendment and case law on reasonable, content-neutral restrictions motivated by compelling state interest.
The complainant should feel bad about getting a veteran kicked out of a public park on Memorial Day weekend; the complainant should feel worse about disrespecting the Constitutional rights that Fowler’s comrades fought and died for.