Opinion: Free speech might make people uncomfortable

Posted Thursday, Jul. 17, 2014  comments  Print Reprints
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norman If members of Open Carry Tarrant County aren’t out in all their gun-toting glory this weekend, handing out gun-rights literature and pocket-sized versions of the Constitution at a busy Arlington intersection, I’ll be surprised.

Open Carry won a major legal victory this week in its effort to preserve constitutional rights, not specifically the Second Amendment rights that are its usual focus but the First Amendment right to free speech.

Frankly, I’d rather Open Carry didn’t do these demonstrations. It makes me nervous to see people with AR-15s, Mossberg 20-gauge shotguns and modified AK-47s slung over their shoulders passing out stuff to people in cars stopped at red lights.

And I’d rather we not have what they say they want, which is Texans carrying handguns holstered in open view.

My objections are matters of taste. They don’t trump First or Second Amendment rights.

Imagine an organization called Grannies in Bikinis and Really Old Guys in Speedos, whose senior-aged members wanted to assert their right to hold demonstrations at intersections promoting their choice of skimpy body covering.

I’d argue for their right to do that, but I don’t really want to see it.

I have new-found appreciation for Open Carry after this week’s legal victory.

U.S. District Judge Reed O’Connor in Fort Worth issued a preliminary injunction blocking Arlington from enforcing an ordinance he said overly restricted the rights of Open Carry members in their intersection demonstrations.

In a 26-page opinion, O’Connor described how important it is that the group’s free-speech rights be respected and how Arlington fell short.

He cited Supreme Court precedent, saying that someone “who is rightfully on a street which the state has left open to the public carries with him there … the constitutional right to express his views in an orderly fashion. This right extends to the communication of ideas by handbills and literature as well as by the spoken word.”

Public streets long have been forums for free speech, O’Connor wrote, and handing out copies of the Constitution and gun rights literature on Arlington streets and sidewalks is “precisely the kind of speech in precisely the kind of place that the First Amendment aims to protect most.”

So Arlington had to show that its restrictions were “narrowly tailored to serve a significant government interest.”

That interest, Arlington argued, is pedestrian and traffic safety. But O’Connor said the city had to do more than “recite an interest that is significant in the abstract.”

The Arlington ordinance, adopted in 1994 but revised in May in anticipation of Open Carry’s legal action, bans any kind of interaction between pedestrians and vehicles at particular intersections, which O’Connor said doesn’t pass the constitutional “narrowly tailored” test.

Arlington didn’t provide any evidence supporting its claim that the ordinance was carefully crafted to address specific safety issues or that Open Carry’s behavior could cause accidents.

The ban covers activities within 500 or 1,000 feet of some intersections, but the city “failed to provide any evidence as to how these zones were determined.”

Other groups (including city firefighters) are allowed to solicit charitable contributions at intersections, which can be more disruptive than handing out literature.

If Open Carry indeed causes traffic and safety problems, Arlington can enforce other ordinances, like those governing where and when people enter a roadway.

But, O’Connor wrote, “[T]he fact that Plaintiffs’ tactics or message may cause some people to be uncomfortable is not a proper motivation for limiting Plaintiffs’ free speech rights.”

That hit home for me.

Mike Norman is editorial director of the Star-Telegram. 817-390-7830 Twitter: @mnorman9

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