By early 2012, two city ordinances could limit citizens from freely exercising their First Amendment rights in the downtown area.
The city attorney's office is quietly researching a limited panhandling ban, and a law that would corral protesters into specific zones. Both were referred to the attorney after downtown stakeholders and Mayor Steve Bach expressed concerns about downtown problems.
City Attorney Chris Melcher explains that specific proposals have not been laid out yet, as attorneys research similar laws and piece together what might work in the Springs.
But this much is certain: The city is examining its current ban on aggressive panhandling to see whether it's been effective or if revisions to the law are advisable. Additionally, the city is considering a "panhandling overlay zone" of about two-by-four blocks in the downtown core, where panhandling would be banned outright.
At the same time, Melcher's office is examining the plausibility of creating one or more "free-speech zones" in the downtown area. (You may remember the term from the 2008 Democratic National Convention in Denver, where the zone was incredibly unpopular.) Melcher says his office will look both at encouraging free speech within the zone, and discouraging it elsewhere downtown. The office was spurred to action after downtown business owners, visitors and the artistic community asked the city to see if "there are more appropriate areas for downtown demonstrations" in light of the Occupy Colorado Springs protests in Acacia Park, Melcher says.
His office likely will bring items to City Council for consideration in late January and early February. So far, though, Council has few details. Asked recently to explain the zones, Council President Scott Hente said, "You probably know more about it than I do."
Meanwhile, some are already questioning whether the zones are legal, or fair.
It's safe to say Mark Walta has a thorough understanding of how constitutional rights intersect with the use of public land.
Before joining his current Denver practice — now called Walta, Harms and Dingle — he toiled for years as a state public defender. Walta still works as a cooperating attorney with the American Civil Liberties Union, most recently litigating that organization's hard-fought, but ultimately fruitless, attempt to overthrow Boulder's no-camping ordinance.
Basically, Walta says, governments can limit free-speech rights. In fact, they do it all the time. But those laws must be limited in scope, they must not be based on the content of speech, and they must serve an important governmental interest.
It's possible that a free-speech zone or a panhandling overlay zone in Colorado Springs would meet those requirements, Walta says. It's been done before.
Melcher notes that a panhandling-free zone on a 5-mile stretch of beach in Fort Lauderdale, Fla., was upheld in the U.S. Court of Appeals, Eleventh Circuit in 1999. That city successfully argued that panhandling there hurt the tourism on which the area's economy relies. Walta says that if Colorado Springs could prove that people asking for spare change or chanting slogans downtown drive away tourists and hurt sales, that might be a valid governmental interest.
But Walta says it's highly likely that any new law would be challenged. Battles over limits on free speech can last two years or more, which would eat up a lot of time at a city attorney's office already bogged down with the prospective lease of Memorial Health System, plus oil and gas drilling regulations. The city could choose to hire outside counsel that specializes in First Amendment issues, but that would cost taxpayers more.
"These sorts of ordinances have encountered First Amendment challenges around the country, [and] I have no doubt that if these ordinances pass, they will encounter the same kind of challenges," Walta says, calling a free-speech zone particularly vulnerable. "... I wouldn't be surprised if this ends up on the ACLU's radar screen, especially given the timing. The question is going to arise, 'Is this a direct response to the Occupy movement, and if so, is this really a content-based restriction?'"
The city may be on shaky ground on that last point, since both Melcher and the mayor's chief of staff, Steve Cox, say the city's exploration of a free-speech zone is specifically tied to complaints about the relatively benign Occupy Colorado Springs protest.
Even if the potential laws did pass legal muster, Walta says they could cause other problems. Asking opposing groups to use the same area could lead to clashes. And if another movement like the tea party crops up, local lawmakers may find themselves castigated when demonstrators are forced to limit their speech. Walta wonders out loud why Colorado Springs would invite such a sticky situation.
"Leave it to Colorado Springs to find a solution to a nonexistent problem," he says with a laugh.
Legalities aside, these kinds of laws strike chords on all sides.
Occupy organizer Joel Aigner says his group would strongly resist any efforts to install free-speech zones.
"I don't think when our Founding Fathers wrote the Constitution ... [that] it was ever their intention to have a free-speech zone," he says. "While there are some legal arguments for it being within the letter of the law, I feel like that definitely goes against the spirit of the law."
To the Downtown Partnership's Executive Director Ron Butlin, however, it feels like the rights of business owners and shoppers are already being trampled. He notes that many factors drive shoppers away from struggling small downtown businesses, including discomfort with panhandlers, fear of protesters, or even parades that shut down Tejon Street. He doesn't know a lot about free-speech zones yet, but he says business owners would definitely support a panhandling overlay zone.
"You kind of get into the issue of an individual's right to panhandle versus an individual's right to comfortable enjoyment of downtown," Butlin says. "...Businesses definitely feel that there's a portion of the population that panhandlers discourage from coming downtown."
To others, the problems are obvious, but a law doesn't seem to be the right solution. Steve Handen, a longtime area homeless advocate, understands people's fear of panhandlers in some cases — particularly when those asking for money shout or chase people down the street. But to him, a panhandling zone feels like just another attack on the poor.
"Years ago, they closed the county farm; there was arguments about even feeding poor people back in the '70s; there's the panhandling ordinances on the freeway; there's the anti-camping ordinances," he says. "And if you look the next level up, we're cutting school budgets and building prisons."
Handen feels the poor need resources, not laws. Instead, he thinks the community tends to shun people who don't fit in, like homeless people with few skills, drug addicts, alcoholics and the mentally ill. The latter group often includes the more aggressive downtown panhandlers, who go untreated for their ailments.
"We sort of don't like troubled people," Handen laments. "More and more, there are people who are not welcome in society."