April 25, 2007
Dear Radford, Va. City Council members,

This is to follow up my comments at the City Council meeting Monday about the proposed revisions to the zoning codes which include the section 120-239, which require that all flags and signs by university organizations in houses located off campus be approved in advance by both the city and the university.

It would be nice if this was simply a misunderstanding, so let me restate the effect of this ordinance. You are asking every student who has a message they want to write on a sheet and hang from a porch to get approval in advance of the content of that message. That would mean that even messages like “we support Virginia Tech” and “Go Hokies” on banners in front of a house would have to be approved in advance by at least two bureaucrats, one from the city and one from the state. Of course, no one in the city government will order a “Go Hokies” sign taken down. But theoretically they would have the power to do so, and, at their discretion, could very easily order any sign taken down whose content they simply dislike. In fact, this has happened many times in past months.

In other words, the ordinance attempts to give direct power of censorship (prior restraint) over citizen expression to university and city officials.

And, as someone familiar with law in this area, I have to tell you in no uncertain terms that you actually do not have that power.  Moreover, this is the advice that you would get from most attorneys who are familiar with law in this area.

This is why the ordinance will probably be referred to a court. If previous case law is any indicator, as it almost always is, this ordinance will not pass constitutional muster.

In legal terms, the city’s position is so extraordinarily weak that it would not surprise me if a case against this ordinance was simply won on motion of summary judgement. I would recommend seeking a diversity of legal viewpoints so that you know this memo is not written simply to undermine your city attorney, who Im sure is very competent in other areas.

What I find particularly annoying in all of this is the lack of any attempt by the city to provide any explanation whatsoever for a governmental interest, much less any “compelling governmental interest” as required by the law when government censorship is contemplated. It is also annoying that the city has enforced this ordinance for years even though it has never actually been on the books. This certainly does not demonstrate a good faith attempt to respect the rights of citizens.

And so, another point I wish to make in no uncertain terms, is that citizens do not check their constitutional rights at the city line, and that it is the duty of a city council to understand the law and not to embarrass its citizens.

It is true that the courts have long held that free speech is not an absolute right — There are times when other rights and responsibilities prevail. However, in terms of direct censorship, these are extremely rare, such as on the front line of a war or when speech presents the possibility of “imminent action” towards violence.

On the other hand, instances of direct censorship which are, and have long been, unacceptable under Constitutional law include situations where viewpoints present something of a nuisance, or may be considered disorderly, or present points of view that are not popular. It is very clear to me that this is the situation in Radford.

In Black’s Law Dictionary, we find this definition for Prior Restraint: “Any scheme which gives public officials the power to deny the use of a forum in advance of its actual expression. In constitutional law, the First Amendment of the U.S. Constitution prohibits the imposition of a restraint on a publication before it is published … Any system of prior restraints of expression bears a heavy presumption against its constitutional validity, and the Government carries a heavy burden of showing justification for imposition of such a restraint… Prior restraints on speech and publication are the least tolerable infringement on First Amendment rights…”

Clearly government has not even begun to address this heavy burden, nor has it contemplated even our own state constitution’s prohibition against prior restraint:

Sec. 12. That the freedom of speech and of the press are among the  great bulwarks of liberty, and can never be restrained except by despotic governments; that any citizen may freely speak, write, and publish his sentiments on all subjects,  being responsible for the abuse of that right; that the General Assembly shall not pass any law abridging the freedom of speech or of the press, nor the right of the people to peaceably to assemble, and to petition the government for the redress of grievances.

The meaning of this provision is that publication must come first, without prior restraint, and that if any rules have been broken those offenses must be prosecuted AFTER THE FACT.

For example, obscenity, which is not protected by the First Amendment, can be restrained. On the other hand, libel, or invasion of privacy are prosecuted in civil court under rules based on the First Amendment, and these torts must be considered in the context of damage, intent and so on.

In simple terms, a crime has to be committed before it can be prosecuted. But in more complex terms, rules have to be clearly spelled out rather than interpreted on an ad hoc basis by a government censor.

In terms of history, the words of Justice Louis Brandeis In Whitney v. California ring true:

Those who won our independence by revolution were not cowards. They did not fear political change. They did not exalt order at the cost of liberty…. No danger flowing from speech can be deemed clear and present unless the incidence of the evil apprehended is so imminent that it may befall before there is opportunity for full discussion…

Since this ordinance is about to be passed, I simply wish to restate my firm opposition to this ordinance and the hope that you will not embarrass yourselves or the city.

Sincerely,

Bill Kovarik