The City of Arlington has revised its sidewalk ordinance, hoping to pass constitutional muster. I believe the City has failed.

Having looked at the case law, I’m convinced that the proposed law remains unconstitutional for two reasons:
1) It remains biased, in that the state employees are not restricted in their speech, while members of Open Carry and most charities are.
2) The City of Arlington is leaning on a case that concerned the sale of newspapers, rather than mere distributionof political pamphlets.

The new law prohibits distribution to individuals in vehicles unless the distributing person can reach the individual in the car without leaving the street’s curb. The natural consequence is that the only people who can receive the information will be passengers of cars on the outside lane of a road.

Even then, bike lanes become “free speech buffer zones”, as those distributing a Constitution to a car passenger would have to reach from the curb and across a bike lane to reach the would-be recipient (which is not possible unless the distributing person is about eight feet tall).

At the same time, the City appears to continue its stance that it must allow state employees to do whatever they want. While I cannot dare to predict what the federal court will say about the new law, I can say that Tex. Transp. Code § 552.0071, the state law regarding state employee charity collection does not require cities to allow state employees to dance in the streets while collecting funds without any regulation. What it does say is that a city cannot regulate state employees beyond a certain point.

The proposed ordinance is similar to an ordinance that succeeded in a previous case in League City in 2007 (near Houston). But in that case, Houston Chronicle Publ. Co. v. City of League City, 488 F.3d 613 (5th Cir. Tex.2007), the Fifth Court of Appeals specifically stated it was not addressing the state employee issue because the trial court in that case did not address it, and appellate courts don’t usually look at issues not raised at trial. We have done so in the Open Carry case, of course, so the Fifth Court of Appeals will not set the argument aside so easily.

Having read through a lot of these cases, it is interesting to see how detailed the courts’ analysis is. For example, in International Soc. for Krishna Consciousness, Inc. v. Baton Rouge, 876 F.2d 494 (5th Cir. La. 1989), the Court distinguished between situations where individuals are purchasing a newspaper, and others where someone is accepting literature, pointing out that where someone is buying a newspaper, they have to dig for coins out of their pocket. Thus, the collection of funds or purchase of newspapers can be easily seen to be more potentially dangerous than simply accepting a pocket Constitution.

What the city could and should do is make one law for everyone that is reasonable, but then…that’s not the goal of the Arlington City Council.

While we applaud the City’s decision not to fight the clearly unconstitutional version that it wrote earlier this year, we believe that it cannot be illegal to hand out Constitutions to people in cars who are not moving at controlled intersections, particularly while the light is red and signage that the city has installed is telling people that the street is safe to cross.

We think that the City is dancing just over the line of the Constitution, and if the City continues with this version of the law, we will make that argument in federal court. It shouldn’t be necessary.