Aberdeen Boots Petitioning Veteran from Wylie Park

Storybook Land entrance, Wylie Park, Aberdeen, South Dakota, 2015.05.23
Storybook Land: Where the First Amendment Is Fiction?

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:

  1. 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.
  2. Distribute any circular, notice, leaflet, pamphlet, or written or printed information of any kind to a person not willing to accept it.
  3. 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.
  4. 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.
  5. 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.


17 Responses to Aberdeen Boots Petitioning Veteran from Wylie Park

  1. Uh oh, it appears Aberdeen got itself into trouble, again. One key lesson for public officials here is that many “complaints” do not deserve a reply nor deserve action. People will whine, and that is their problem until some law is broken. Great analysis, Cory.

    The Supreme Court also ruled that few venues are a non-public forum for free speech. The notable case that ended harassment of travelers in airports by the Hari Krishna’s; http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=505&invol=672.
    Recently the California Supreme Court upheld the application of the non-public forum doctrine. http://www.csmonitor.com/USA/Justice/2010/0325/Court-upholds-ban-on-Hare-Krishna-soliciting-in-LAX-airport

    Clearly parks are a public forum for free speech.

  2. Those for those non-public-forum examples, John! They help bolster the public forum cases.

  3. Porter Lansing

    My research showed the owner of Wylie Park was behind the “get our kids to work for less and make me more money in the process” push for lower minimum wages for youth workers in his parks. What a surprise that he’s not a proponent of American values and the personal liberty of the petition process.

  4. Bob Newland

    ALWAYS question authority. ALWAYS!

  5. Porter Lansing

    Please excuse my exclusion of Thunder Road in the above post. I’m speaking of the owner of Wylie Park Thunder Road and his support of the lower minimum wage for youth.

  6. Ah, yes, to be clear, Porter, the Novstrups do not own Wylie Park. The city (We the People) own Wylie Park. The Novstrups operate Thunder Road as a concession in Wylie Park. Does that mean Novstrups essentially lease their Aberdeen facility from the city? Is that cheaper than purchasing land and paying taxes each year?

    Note also, Porter, that there is no link to either Novstrup in this story. We do not know who complained to the park manager Grote. But the idea that speech and petitioning in a public can be shut down by one vague complain from one individual should alarm us all.

  7. mike from iowa

    Seriously,if an expectant mother meets a new friend in the park,who is already done with childbearing/rearing,one cannot offer to sell a crib or bassinet to the other while in the park confines?

    If you can’t paint in the park, how do they mark traffic lanes and parking spots?

    They rilly need to be more specific and not depend on people automatically knowing their intent of said laws.

  8. Shirley Harrington-Moore

    SDDP was advised that not more than ONE table and chair can be on the sidewalk near the entrance of a Post Office — but not directly in front of nor blocking the traffic flow — for use by petition carriers.
    I have begun sitting on/leaning against the fender of my car with petitions on clipboards in my hands, pens in my shirt or jacket pocket. So far, so good because I have filled 43 petitions and I am going back for more.

  9. “was advised”—by whom, Shirley? Post office officials? If so, I would note that the USPS has a unique compelling interest, ensuring the safe delivery of the mail.

  10. How sad that something like this happened. So one person was not happy and you kick the veteran out of the park. Does that mean if there is somebody on the park grounds that I do not like or maybe I want to aggravate I can go to the park manager and get them kicked out of the park?

    The park manager should have observed the petition process and if there was no interference to the park visitors, the petitioner should have been allowed to remain.

    Looks like the city needs to do some education for its employees!!!

  11. Mary, I’m afraid that’s exactly the precedent being set. You enter the park wearing a Kristi Noem t-shirt, I complain that I’m offended by such a reminder of our inept representation during my recreation in the park—pow! You and your shirt leave.

    The city council meets tomorrow night; anyone know when the Park and Rec Board meets?

  12. Mrs. Nelson

    The P&R board meets the first Wednesday after the first Tuesday every month. Noon at the ARCC.

  13. Richard Schriever

    I’ve made a few complaints in my day. Whenever I do – I cite the specific ordinance related to the complaint – and include photos. City officials seem to still tend to want to apply selective enforcement though. SDML (Municipal League) really ought to offer some training for employees that emphasizes their obligation – as government employees – to KNOW and follow the ordinances that are pertinent to the performance of their job duties.

  14. Bob Newland

    Once I was working the parking lot at the Rushmore Plaza Civic Center (Rapid City), getting signatures on the petition that proposed allowing an accused person to argue the merits, validity and applicability of the law under which he was being prosecuted. A civic center employee came out and asked me to leave. I asked why. He said, “I was told to tell you.” I said, “By whom?” “My boss.”

    I said no. He called his boss on the two-way. I said to tell him I was on public property. I heard the guy yelling back, “IT’S NOT PUBLIC PROPERTY. IT’S CITY PROPERTY.” I grinned and kept on working. Nothing more came of it.

  15. David Newquist

    A problem with parks and recreation areas is that their purpose is to make things pleasant for visitors, so a squeaking wheel is oozed with palliative grease. For a number of summers I was the seasonal naturalist at state recreation areas and many of the rangers who served the areas were students of mine. We had a manager who never ventured into the parks unless some officials from Pierre were coming to visit. Consequently, we were the obvious targets for registering complaints. In some cases, the problems were easily solved, such as the drunken camper who was menacing children as they went past his campsite. He was told to see how fast he could pack up and leave. In another instance, the problem was a matter of the frequent moans in the night coming from a pop-up camper. They produced a lot of daytime snickering, but we had no idea of how to handle the complaint. One young ranger put up a sign at the gate house that said “No orgasms over 80 decibels.” He almost got fired. Some young teens who were present when the complaint was registered solved the problem. Every time they passed the campsite, they mimicked the moaning sounds, and the embarrassed couple packed up and left.

    However, many complaints were of the cranky kind. The advice we received was not to regulate the areas to satisfy those who were always looking for some way to inflict their troubled personalities on the people around them. Doing so would make the recreation areas terrible places to visit. When we were approached with cantankerous complaints, we took down the specifics of the complaint, the names of the complainers (even if we had to get it off the campsite registration) and said we would get back to them. Such complaints ranged from the kind of bathing suits being worn by young women on their way to the beach to bumper stickers on the camping units to the skunks which patrolled the campgrounds at night. We usually informed the complainers that the offenders were within their rights and the rules of the campgrounds. Some got miffed and left. Which made the parks more pleasant places to be. Mr. Grote needed to ask specifically what the offense was with the Fowler’s table and who the complainant was. It might have been better for the complainant to remain offended and leave. Some wheels are better left with no grease.

  16. FWIW, contrast Aberdeen’s treatment of living veterans with that of the Dutch and Belgian treatment of deceased veterans.
    http://www.washingtonpost.com/local/americans-gave-their-lives-to-defeat-the-nazis-the-dutch-have-never-forgotten/2015/05/24/92dddab4-fa79-11e4-9ef4-1bb7ce3b3fb7_story.html

    An imperfect contrast, yet stark.

  17. At the same moment though, let not us, or Aberdeen, over-compensate for veteran adulation least it became hollow panache’. Jennie, below speaks for me, and perhaps millions of veterans – don’t “thank me for my service” or “wish me a happy Memorial or later Veterans’ Day”; get off yer arse and provide yer own service. And don’t you dare support political hacks who would after-the-fact cut my modest pension or benefits. Yes, those are expensive – such is the price of your, Mr. and Mrs. Voter, foolhardy elective wars.

    http://www.washingtonpost.com/news/checkpoint/wp/2015/05/22/im-a-veteran-and-i-hate-happy-memorial-day-heres-why/?tid=pm_pop_b