EL Law Used to Suppress Political Speech is Set for Repeal

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Sunday, August 23, 2015, 7:06 pm
Alice Dreger

Above: ELPD Sergeant Andrew Bouck telling City Councilmember Ruth Beier that she could not distribute a political handout protesting display of a confederate flag at the Folk Festival on August 9.

This week, East Lansing’s City Council moved to repeal a section of the City’s Code without anyone on Council ever mentioning what motivated the repeal: the use two weeks ago of that section by East Lansing Police officers to stop political speech.

As ELi reported, protestors showed up at the Great Lakes Folk Festival to object to the intermittent display of a confederate flag by Chris Zemer, owner of the Zemer Homemade Rootbeer booth. Councilmember Ruth Beier and her partner Terry Scharf produced flyers to give to potential patrons of Zemer’s, encouraging them to hand Zemer the flyer instead of buying his products. The flyers read, “I want to buy a root beer, but I don’t tolerate hate, so I will spend my money elsewhere.”

Beier, Scharf, MSU graduate student Dee Jordan, and other protestors were threatened with arrest by ELPD officers, including Sargent Andy Bouck, if they handed out the flyers. This stopped them from handing them out; the protestors told me they were afraid of being arrested.

In response to questions, Chief of Police Jeff Murphy told me that the arrest threats by his officers were justified by section 26-321 of the City’s Code of Ordinances, which states:

"No person shall distribute, throw, drop, or scatter, in any public place or in or upon any vehicle located in any public place, any poster, handbill, card, sample, or other matter used for the purpose of advertising, in such a manner as to result in the littering of any public place. No person shall distribute handbills, cards, samples, or other advertising matter on any private property so as to cause a littering of any public place or of any private property not his own."

So far as we could ascertain from inquiries at the Folk Festival, ELPD officers warned only the protestors from handing out materials. They did not warn or stop any of the many people handing out commercial advertisements.

This week Mayor Nathan Triplett and City Attorney Tom Yeadon recommended to Council repealing the section of the Code cited by Chief Murphy, saying it was in fact simply a littering prohibition that was both unclear and made redundant by other sections of the Code. (Read Yeadon’s memo.)

Making extensive use of the passive voice, Yeadon told Council, “It was suggested that we repeal it. It was also suggested that this is really duplicative of some other ordinances we have . . . which I think is true.”  Yeadon told Council he had never charged anyone with an offense under that part of the Code, but that if he had, it would be a misdemeanor, which meant one could be arrested for alleged violation of it.

Triplett told Council that the section in question required a “judgment call” on the part of an officer and could lend itself “to potential misinterpretation.” He said there was good coverage of littering elsewhere in the Code.

Like Yeadon and the rest of Council, Councilmember Beier did not speak openly about the motivation for the repeal of this section, although she did tell Council she thought it was a good idea to repeal it because she didn’t want the police to have the opportunity to use “their interpretation and their own value system about what is reasonable for people to hand out.” She said she didn’t think that that was an opportunity the police should be given. She said she thought it made it “too easy to violate people’s rights to say what they want to say.”

Triplett said that no one could be expected to “lug around” the Code book or to memorize it, so, he said, “it becomes a colloquial summary, and in this case this ordinance gets summarized as  ‘the distribution of handbills in East Lansing is prohibited,’ and that’s obviously not the case, but it’s unreasonable to expect that someone will have committed every ordinance in the Code to memory and that they’ll remember these two particular caveats [in the section] well enough to then make a subjective judgment to exercise their discretion properly, as meant to do it, when they could simply rely on ordinances that say ‘if you throw trash on the ground, you’re going to get a ticket for littering.’”

Council is likely to repeal this section of the Code without further discussion by formally introducing the repeal at the next Council meeting on September 1 and voting on it September 15. According to what Yeadon told Council, the matter does not require a public hearing.

You can listen to the tape of this discussion at Council by clicking here and moving the cursor to start the playback at 2:26:10.

Reminder: You can communicate with Council in person at its weekly meetings or write to Council directly at council@cityofeastlansing.com. You can speak or write on any issue involving the City, not only what is on the published agenda.



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