August 27, 2012
All forms of solicitation would be prohibited in an area of downtown Colorado Springs under a proposed city ordinance that the American Civil Liberties Union of Colorado says would “surely” violate the First Amendment.
“I would advise them not to pass this severely flawed ordinance,” said Mark Silverstein, legal director of the ACLU of Colorado.
But City Attorney Chris Melcher, who presented the proposed “no solicitation zone” to the City Council on Monday, said the measure would pass legal muster. Melcher said the city borrowed language that the federal courts have deemed constitutional.
“What the downtown ‘no solicitation zone’ is seeking to do is not to prohibit content of speech but to prohibit conduct, which is to approach a person to solicit,” he said.
“The solicitation definition in the ordinance … was taken directly from the ordinance that was successfully implemented in Fort Lauderdale, Fla., and which was upheld as constitutional under both state and federal law by the 11th Circuit,” he said.
Melcher said the government can restrict free speech but those restrictions must be content neutral and narrowly tailored, among other factors.
Still, Melcher said the city will meet with the ACLU to work on a compromise or solution.
“If we can, we’d be very pleased with that. If we can’t, then obviously we’ll have to follow council direction and move forward with what council would like us to do,” he said.
The proposed ordinance, which will go back to council for first reading and a public hearing Sept. 11, is designed to fight panhandling, which downtown business owners say has turned people away.
Two council members — Merv Bennett and Tim Leigh — said their wives won’t take their grandchildren downtown.
“One of the obstacles that the downtown faces in trying to become a more robust economic community is making it more comfortable for people to come downtown,” said Dave Munger, a member of Mayor Steve Bach’s Downtown Solutions Team.
“Many folks who would otherwise come downtown to shop are put off by a perceived lack of safety,” he said.
The proposed no solicitation zone is bordered roughly by Boulder and Cucharras streets and Nevada and Cascade avenues. It excludes places traditionally considered “areas of public forum,” including Acacia Park, City Hall, the Pioneer’s Museum, the county courthouse and the downtown library.
Several council members said excluding Acacia Park was problematic.
“I think we’re making a big mistake by not (including) Acacia Park. That’s where families go,” City Councilman Bernie Herpin said.
City Councilman Tim Leigh agreed.
“You might as well just forget this whole thing,” he said. “You really missed the picture, I think.”
Melcher said including a place of public forum would bring much more legal scrutiny if challenged in court. But he promised to do more research on the matter.
“We’ll search high and low,” he said. “Maybe we overlooked something or maybe we reread the cases and see if we can find a good argument.”