A federal judge has rebuffed a reporter’s challenge to an Alameda County law aimed at curbing car stunt and reckless driving displays known as "sideshows."
Jose Garcia, who covers sideshows for The Oaklandside and also is known as Jose Fermoso, sued the county and Sheriff Yesenia Sanchez, saying a 2003 ordinance that criminalizes attending sideshows is facially unconstitutional or at least should not be applied to his capacity as a reporter.
In an opinion filed Oct. 11, U.S. District Judge Richard Seeborg denied Fermoso’s request for a preliminary injunction that would prevent the county from enforcing the ordinance against him specifically.
According to Seeborg, “sideshows pose a significant threat to public safety. In the Bay Area, they sometimes also involve gun violence, substance use, looting and arson.” The county ordinance applies to anyone found within 200 feet of any sideshow on a public street or highway or off-road parking facility.
Seeborg first rejected the county’s argument Fermoso lacked standing and that his alleged injury is speculative. Although “law enforcement is aware of no sideshows in the county during the 13 months since the ordinance took effect,” Seeborg wrote, “he planned to observe future sideshows in unincorporated Alameda County from within a 200 feet radius so as to best capture audio and visual recordings of the event” establishing “a credible threat that his planned actions would expose him to prosecution under the ordinance; the county has not disavowed enforcement against journalists, and the fact that it has not yet prosecuted anyone does not foreclose it from prosecuting Fermoso if given the chance.”
However, Seeborg said Fermoso bears the obligation of showing the restriction constitutes a First Amendment violation. The county argued its ordinance regulates conduct and does not restrict anyone’s right to expression. The county also said that even if the First Amendment does apply, it narrowly tailored the rule to serve its compelling interest in public safety.
“Fermoso fails to carry his threshold burden of establishing that the ordinance regulates any speech cognizable under the First Amendment,” Seeborg wrote, noting Fermoso’s reporting didn’t lead to the ordinance nor does the policy single out anyone engaged in protected expression.
While acknowledging the media’s rights to observe activity on public grounds, and specifically that a sidewalk is something “the Supreme Court has identified as perhaps the quintessential public forum,” Seeborg said the application of a rule to such a place doesn’t “transform the non-expressive conduct that it regulates into conduct with a significant expressive element.”
As one example, Seeborg cited a federal ban on attending a cockfight and said “prohibition becomes no less constitutional simply because two roosters do battle on a sidewalk. If the opposite were true, all manner of local prohibitions could be invalidated by simply moving proscribed conduct from the shadows to the streetcorners.”
Seeborg also pointed to a 1965 Supreme Court opinion, Zemel v. Rusk, which held “the right to speak and publish does not carry with it the unrestrained right to gather information.” Ultimately, he said, the county ordinance’s “focus on the conduct of knowingly being present for the purpose of observing a sideshow makes it less about speech production and more about locational activity. In this regard it is not unlike all manner of standard laws that restrict conduct in public areas for safety reasons, notwithstanding their impact on those who would engage in such conduct in order to speak.”
Fermoso did not attempt to argue the ordinance singles out people engaged in protected activity, Seeborg noted, adding he agreed with the county in its position the rule is content-neutral and satisfies an intermediate scrutiny of its desired impact on public safety. While acknowledging Fermoso’s argument about the existence of other laws aimed at curbing sideshows, Seeborg said “intermediate scrutiny does not require that a regulation be the least restrictive means of furthering state’s interest.”
Finding Fermoso unlikely to prevail on the merits of his claim, Seeborg refused to issue a preliminary injunction.
Fermoso is represented by David Loy of the First Amendment Coalition.
“We respectfully disagree with the district court’s decision,” Loy said in an email. “The press and public have the right to document and record events in public. We believe the ordinance remains a content-based restriction on speech in a traditional public forum. We are considering whether to appeal the court’s order.”