Democracy Coalition Wins on Appeal

In a July 15 opinion, the 3rd Court of Appeals ruled that Travis Co. District Judge Margaret Cooper erred when she dropped the city of Austin as a defendant in a free-speech case brought by the Democracy Coalition, and sent the case back to court for further proceedings.

The Democracy Coalition activists claim that Austin police violated their free-speech rights during an April 2001 protest against President George W. Bush, by denying them access to the traditional protest area on Lavaca Street, across from the Governor's Mansion. A group of more than 30 protesters walked from a protest at the Bullock Museum toward the mansion – where Bush was scheduled to lunch with Gov. Rick Perry – but were stopped by police at the northeast corner of 11th and Lavaca, a block from their destination.

Tempers flared and an APD horse either charged or was spooked and bolted into the demonstrators; no one was hurt, and the horses were called off, but police still refused to allow the protesters to cross the street – even though pro-Bush activists had been allowed to cross to the free-speech zone to show their signs of support for the president.

The coalition sued, claiming the city and police department violated their federal and state constitutional right to free speech and assembly. During the January 2003 trial, a civil jury cleared two APD mounted patrol officers – Kenneth Farr and Michael Carlson – of any liability for violating the demonstrators' rights. However, Cooper pre-empted the jury's ability to weigh in on the protesters' free-speech claims, agreeing with Assistant City Attorney Robin Sanders' argument that the activists had failed to show that the city had an official and unconstitutional "custom, policy, or practice" for dealing with protesters.

The case was heard by the Third Court earlier this year, and last week the justices ruled that, although the coalition had not presented enough evidence to further its First Amendment free-speech claims, it has a right to have its free-speech claims under the Texas Constitution decided by a jury. In affirming the dismissal of the activists' federal free-speech claims, the court agreed that, according to the evidence presented at trial, the "City's crowd-control policies are not facially violative of the First Amendment."

However, they concluded that there remained a question of whether those city policies as applied in this case violated the protesters' free-speech rights – and if so, whether the decision to deny access to the free-speech zone was based on the anti-Bush content of their speech (the granddaddy of First Amendment violations). This question, the court ruled, should have been decided by the jury. "In this case, the [activists] have adduced evidence that some people who were supporters of President Bush were allowed to reach the free-speech area, while the protesters' access to the area was blocked. One protester who reached the free-speech area by a circuitous route was allegedly asked by a police officer to roll up his sign protesting the President," Justice Bea Ann Smith wrote for the court.

"On the record before us, it is not even possible to discern if the City's actions were content-neutral or content-based," she continued. "Based on this ... and viewing the evidence in the light most favorable to the appellants ... we conclude that the question of whether the City violated appellants' rights ... cannot be decided as a matter of law," and must be decided by the trial court.