San Diego's Offensive Speech Ordinance Temporarily Halted by Federal Judge

Enforcement of San Diego's Offensive Speech Ordinance Blocked

A federal judge on September 23 temporarily halted the enforcement of San Diego’s ordinance that prohibits "offensive or disorderly" behavior in public spaces, including loud noises and the use of vulgar language. The complaint against the city was filed by Busker William J. Dorsett on July 8, after he was cited by a park ranger for violating the ordinance. Dorsett had criticized the ranger for ticketing another individual who was creating bubbles for children in Balboa Park without safety equipment.

First Amendment Violation Alleged

U.S. District Judge Barry Ted Moskowitz issued a preliminary injunction after Dorsett argued that San Diego Municipal Code Section 56.27 infringes on the First Amendment. In his nine-page ruling, Moskowitz suggested that Dorsett is likely to be successful in demonstrating that the city’s ordinance is "unconstitutionally vague and overbroad." He noted that the ordinance does not provide clear guidance on what qualifies as illegal conduct and speech. He pointed out that Dorsett was cited even though his interaction with the ranger did not pose any additional risk of danger.

Subjectivity of Offensive or Disorderly Conduct

According to Section 56.27, it is illegal to "make any loud noise, or disturbance, or use any loud, noisy, boisterous, vulgar, or indecent language on any of the streets, alleys, sidewalks, square, park, or in any store" and other public places in the city. Moskowitz highlighted that the interpretation of what is considered offensive or disorderly, and whether someone’s speech is indecent or loud, can vary depending on the observer and can differ across locations and age groups. The judge from the Southern District of California stated that these terms are subjective and can only be defined by comparison to a norm of ‘acceptable’ or ‘normal’ conduct and speech.

Restriction of Constitutionally Protected Speech

Moskowitz argued that the ordinance seemed to limit "a substantial amount" of constitutionally protected speech and equates to "little more than a prohibition on ‘annoying’ or ‘inappropriate’ speech and conduct." The city had contended that Dorsett violated the ordinance by interfering with the ranger’s issuance of a citation to another person. However, Moskowitz stated that the city’s arguments were based on "factual contentions" that the court may not adopt at this stage.

Details of Dorsett's Complaint

In his complaint, Dorsett detailed an incident where he observed a park ranger issuing a citation to a man performing "a bubble show" for children in Balboa Park on June 25, 2023. Dorsett filmed their interaction. The ranger cited the man for causing an "environmental impact issue" due to the use of dish soap, and stated that bubble-making requires the use of protective equipment. Dorsett's complaint argued that in the months since he received the citation, the City of San Diego Parks and Recreation Department had been promoting images of an individual performing bubble shows for children without any protective equipment and without violating the safety statute.

Relief Sought by Dorsett

Dorsett asked the court to issue a preliminary and permanent injunctive relief, declare the ordinance unconstitutionally overbroad under the First and 14th Amendments, and grant compensatory damages, including for emotional harm. The San Diego city attorney’s office was contacted for comment but did not respond by the time of publication.

Bottom Line

This case raises important questions about the balance between maintaining public order and upholding the constitutional right to free speech. It highlights the potential for subjective interpretation in legal definitions and the potential for overreach in ordinances aimed at regulating public behavior. What are your thoughts on this issue? Share this article with your friends and let's discuss. Don't forget to sign up for the Daily Briefing, delivered to your inbox every day at 6pm.