Free Speech Fight Continues in Court

On Nov. 2, Texas' 3rd Court of Appeals denied the city of Austin's attempt to, once again, have dismissed a free speech case brought against the city by the Democracy Coalition in connection with a 2001 protest outside the Governor's Mansion. The D.C. activists claim the city, via policies carried out by the Austin Police Department, 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 residence.

The activists had marched from the Bullock Museum to 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. Police banned them from crossing to the west side of Lavaca, where a handful of sign-waving Bush supporters and a group of reporters were already camped out. The D.C. activists sued, claiming the city and police violated their right to free speech and assembly, as protected under both the state and federal constitutions.

During a January 2003 trial, a civil jury cleared two APD mounted patrol officers of any liability for violating the protesters' federally protected free speech rights. Travis Co. Civil Court Judge Margaret Cooper, however, pre-empted the jury's ability to decide whether the city should be held liable for any violations when she ruled (at the city's urging) that the protesters had failed to proffer any evidence of a city policy that unconstitutionally thwarted their free speech. In a July 15, 2004, opinion, the 3rd Court ruled that Cooper had erred in dropping the city as a defendant and sent the case back to district court for a trial based on the D.C. activists' state constitution claim. While the city's policies did not appear "facially violative" of their rights, the court opined, there remained a question of whether the policies, as applied in this case, violated the protesters' free speech rights under the Texas constitution.

The city apparently didn't like that and countered that the entire matter should be dismissed – arguing that since the federal and state constitutions have similar free speech protections, and since the district court jury cleared the two individual officers of violating federal free speech rights, the city, by extension, should be cleared of violating the state speech rights. On Nov. 2, the 3rd Court again disagreed, sending the case back to district court for trial. "This argument is without merit," Judge Jan Patterson wrote for a three-judge panel. "The Coalition's current claim involves the City of Austin, not these individual police officers. As might be expected, this claim has some distinct factual issues. … Merely applying the same analytical framework in this trial as that used in the earlier trial does not guarantee an identical outcome." At press time, a trial date had not yet been set.