FREE SPEECH — San Clemente city officials say they will abide by a federal appellate court ruling that the city's ban on leafleting windshields on parked cars violates the First Amendment. But they call the outcome a victory because they weren't ordered to pay the challenger's attorney fees, reports Fred Swegles for the Orange County Register.

San
Clemente is prepared to rescind or modify an anti-leafleting law that a federal
court has ruled is unconstitutional.

The city
announced the court decision Tuesday in a news release that asserted the city
had defeated a lawsuit challenging the ordinance because the court awarded no
dollar damages to the plaintiffs.


The release
acknowledged that the ordinance was declared unconstitutional. Mayor Jim Dahl,
reached by phone Tuesday afternoon, said it is too early to say whether the
City Council will rescind the ordinance or amend it.

 

"We
haven't talked about it," he said.

Bill
Gillespie, an attorney for the plaintiffs, said his clients prevailed on three
of their four claims.

 

"The
ordinance was found to violate both the federal and California constitutions'
free-speech clauses," Gillespie said Tuesday afternoon via e-mail. He said
that while his clients did seek damages, those "were a distant secondary
objective."

 

Steve
Klein, who owns an insurance company in Hemet, challenged San Clemente's ordinance
after sheriff's deputies in 2007 stopped a group opposed to illegal immigration
from placing handbills beneath windshield wipers on cars parked on San Clemente
streets.

 

Klein and
nine other plaintiffs filed a complaint in a federal court asserting that the
city had violated their right to free speech.

 

The city
said it was an anti-litter ordinance, pointing out that the law didn't prevent
person-to-person leafleting.

 

The court
decided not to halt the law, but a plaintiffs' motion for a temporary
injunction led the 9th Circuit Court of Appeals to issue an opinion that
ordinances like San Clemente's are unconstitutional "unless the city
involved can produce specific, objective evidence that such leafleting causes
significant amounts of litter."

 

Gillespie
said at least two other cities have repealed similar ordinances in response to
the 9th Circuit's opinion.

 

The city
asked the U.S. Supreme Court to review the matter, but the high court chose not
to intervene and left it to a U.S. District Court to decide.

 

Tuesday's
news release quotes Dahl as saying "the City Council is now prepared to
rescind or amend the ordinance to abide by the suit."

 

"This
lawsuit was very unfortunate, as the city's anti-litter ordinance was
established for no other reason than as a beautification tool," Dahl said
in the statement.

 

The City
Council will consider what to do about the ordinance during a closed session,
but officials couldn't immediately say when.

 

The city's
news release described the ordinance as "an effort to lesson the amount of
trash and annoyance to beach visitors … caused by the frequent placement of
fliers and other literature on parked cars."

 

The release
urged residents to continue efforts to keep litter off streets and beaches
"by properly disposing of unwanted trash."