9/6/08
Court rules Garlic and Biker Colors don't mix
Good Lord we postted on this so long ago we totally forgot about it. Thanks to Karen at Biker Republic forbringing all up to date:
Court backs Garlic Festival in bikers' suit
Bob Egelko, Chronicle Staff Writer
Thursday, September 4, 2008
(09-03) 18:01 PDT GILROY -- The Gilroy Garlic Festival has the right to
bar insignia-wearing bikers because it is not a government-sponsored
event, even though it uses city police for security, a federal appeals
court ruled Wednesday.
In a 6-5 decision, the Ninth U.S. Circuit Court of Appeals in San
Francisco refused to reinstate a free-speech lawsuit by four members of
Watsonville's Top Hat Motorcycle Club, who were barred from entering the
festival in July 2000 because they wouldn't take off their vests.
The vests displayed the club's emblem, a skull, wings and top hat. The
festival's security chief, an off-duty police officer, told them they
were violating the event's dress code, which prohibits motorcycle club
insignia and gang colors. He summoned an on-duty police officer,
stationed on the grounds, to lead them back to the gate.
The bikers' lawsuit, which sought damages from the festival, the on-duty
officer and the city, was dismissed by lower courts on the grounds that
wearing their insignia didn't amount to a statement or expression
protected by the Constitution's First Amendment. The appeals court
majority avoided that issue Wednesday and instead concluded that the
garlic festival is a private entity that isn't subject to First
Amendment restrictions.
Lawyers for the Top Hatters argued that the festival, though privately
run, has close ties to local government. It is held in a city park, with
a city permit, pays the city to keep police on the grounds, and uses an
off-duty officer to oversee security.
But the court said the city plays only a supportive role in the festival
and has no control over its activities.
"Running festivals is not a traditional municipal function," Judge
Diarmuid O'Scannlain said in the majority opinion. If all events on
public land that require permits fell under the government's umbrella,
then weddings, company outings and the like might come under
constitutional scrutiny, he said.
Dissenting Judge Sidney Thomas said a jury should be allowed to decide
whether the city is a participant in the garlic festival - Gilroy's
largest event of the year, with 120,000 visitors and more than 4,000
community volunteers. He also said the bikers' wearing of insignia
should be considered "expressive conduct" protected by the First
Amendment.
Gregory Simonian, a lawyer for the festival, said the court was right to
be cautious about opening the door to constitutional claims by anyone
excluded from a picnic or other event on city grounds.
The main reason for the festival's dress code, he said, is "the safety
of the people who attend the festival every year, and the volunteers."
Bob Egelko, Chronicle Staff Writer
Thursday, September 4, 2008
(09-03) 18:01 PDT GILROY -- The Gilroy Garlic Festival has the right to
bar insignia-wearing bikers because it is not a government-sponsored
event, even though it uses city police for security, a federal appeals
court ruled Wednesday.
In a 6-5 decision, the Ninth U.S. Circuit Court of Appeals in San
Francisco refused to reinstate a free-speech lawsuit by four members of
Watsonville's Top Hat Motorcycle Club, who were barred from entering the
festival in July 2000 because they wouldn't take off their vests.
The vests displayed the club's emblem, a skull, wings and top hat. The
festival's security chief, an off-duty police officer, told them they
were violating the event's dress code, which prohibits motorcycle club
insignia and gang colors. He summoned an on-duty police officer,
stationed on the grounds, to lead them back to the gate.
The bikers' lawsuit, which sought damages from the festival, the on-duty
officer and the city, was dismissed by lower courts on the grounds that
wearing their insignia didn't amount to a statement or expression
protected by the Constitution's First Amendment. The appeals court
majority avoided that issue Wednesday and instead concluded that the
garlic festival is a private entity that isn't subject to First
Amendment restrictions.
Lawyers for the Top Hatters argued that the festival, though privately
run, has close ties to local government. It is held in a city park, with
a city permit, pays the city to keep police on the grounds, and uses an
off-duty officer to oversee security.
But the court said the city plays only a supportive role in the festival
and has no control over its activities.
"Running festivals is not a traditional municipal function," Judge
Diarmuid O'Scannlain said in the majority opinion. If all events on
public land that require permits fell under the government's umbrella,
then weddings, company outings and the like might come under
constitutional scrutiny, he said.
Dissenting Judge Sidney Thomas said a jury should be allowed to decide
whether the city is a participant in the garlic festival - Gilroy's
largest event of the year, with 120,000 visitors and more than 4,000
community volunteers. He also said the bikers' wearing of insignia
should be considered "expressive conduct" protected by the First
Amendment.
Gregory Simonian, a lawyer for the festival, said the court was right to
be cautious about opening the door to constitutional claims by anyone
excluded from a picnic or other event on city grounds.
The main reason for the festival's dress code, he said, is "the safety
of the people who attend the festival every year, and the volunteers."
An Attorneys opinion: www.YourInjuryLawyers.com
There's a silver lining to the 9th Circuit's decision in the Tophatter's case. I haven't read the opinion itself yet, but from what the story says, the 9th Circuit decided that there was no First Amendment issue relating to the club's patches ONLY because the Garlic Festival that the bikers were barred from wasn't sufficiently connected with the City of Gilroy, although the event was held on Gilroy city property.
The lower court had held that because each biker had a somewhat different interpretation of what their patch meant to them, that they therefore weren't "expressing" any message under the First Amendment that was inhibited by government, the City of Gilroy. THAT was a dangerous decision for all of us, especially patch holders. The 9th Circuit decided the case on different grounds, reasoning that the Garlic Festival wasn't a city or government event, but was merely held on city property. I still think the court is wrong, but the GOOD news, as I read this preliminarily, is that it remains improper and actionable if government excludes a patch holder from a government function or facility, if the only reason is the patch. This tells me that the underlying law which supports that -- Cohen v. California -- is still good law.
This will be interesting if the US Supreme Court elects to take this one on, if it's appealedAdd to Technorati Favorites.
The lower court had held that because each biker had a somewhat different interpretation of what their patch meant to them, that they therefore weren't "expressing" any message under the First Amendment that was inhibited by government, the City of Gilroy. THAT was a dangerous decision for all of us, especially patch holders. The 9th Circuit decided the case on different grounds, reasoning that the Garlic Festival wasn't a city or government event, but was merely held on city property. I still think the court is wrong, but the GOOD news, as I read this preliminarily, is that it remains improper and actionable if government excludes a patch holder from a government function or facility, if the only reason is the patch. This tells me that the underlying law which supports that -- Cohen v. California -- is still good law.
This will be interesting if the US Supreme Court elects to take this one on, if it's appealedAdd to Technorati Favorites.
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