Last week the 11th Circuit upheld a St. Petersburg ordinance after a minster who had been trespassed from a public park complained that the ordinance violated his First Amendment rights.
The minister is Bruce Wright, co-director of an addiction recovery program, and advocate for the poor and homeless in St. Petersburg. He hands out flyers and offers counseling through his recovery program. He has organized and attended demonstrations to help the homeless. He frequented Williams Park, in downtown St. Petersburg, because poor and homeless people visit it.
According to the case, In 2013, Wright interrupted two police officers while they questioned a man who had an arrest warrant. Wright told the officers to stop harassing the man. The officers warned Wright to step back, but he did not, and the officers arrested him for obstructing an investigation and resisting arrest.
The officers also issued him a “trespass warning” under City Ordinance § 20–30, which empowers police to issue such warnings “to any individual who violates any City ordinance or State law which was committed while on or within a City facility, building, or outdoor area, including municipal parks.”
Wright was blocked from re-entering the park for a year.
“Wright is Wrong”
Wright appealed the trespass warning and argued the ordinance prevented him from re-entering the park to exercise his First Amendment rights. Writing for the 11th Circuit, Chief Judge Ed Carnes could not help but include the pun, “Wright is wrong.”
While there was “no question that the First Amendment protects Wright’s ministerial outreach and political speech,” the court said, the “unlawful behavior that led to his arrest and trespass warning was not protected expression.”
Wright had argued that the trespass warning made his ministerial outreach more difficult because it stopped him from interacting with people in the park or attending a press conference on police brutality also held in the park.
“[J]ust because the law has an incidental effect of burdening protected speech or expression” did not mean that it was unlawful or even subject to First Amendment strict scrutiny analysis. Wright (citing Arcara v. Cloud Books, Inc., 478 U.S. 697, 705–06 (1986). As an example, any imprisoned thief is unable to speak in public places during the time of confinement; however, that effect does not make the prison sentence a First Amendment violation. Essentially, “every civil and criminal remedy imposes some conceivable burden on First Amendment protected activities.” Id. at 706. “By the same token,” the court said, ”Wright also could have been incarcerated for his unlawful conduct, which for the duration of his incarceration would have prevented him from engaging in expressive conduct in any of the City’s many public parks.”
First Amendment scrutiny would apply only if the conduct that caused the trespass warning in the first place had “a significant expressive element” or where the city ordinance had the inevitable effect of singling out people engaged in expressive activity.
Here, on the other hand, Wright was not arrested as a pretext for suppression of protected speech. As such, Wright lost his appeal, and the 11th Circuit upheld the ordinance.
The one-year trespass warning was issued in March 2013, which means it was lifted in March 2014. The order on appeal was entered by the Middle District of Florida in December 2014. Appellate cases are a lot of work where both parties are required to draft lengthy briefs, and, here, it took a year and a half before a final opinion was entered. Of course, there is more to the underlying story because Wright also filed a civil-rights lawsuit for his arrest. However, the practical affect of this opinion, entered August 15, 2016 — more than two years after the trespass warning was lifted — is probably more beneficial to the attorneys than Mr. Wright, who has had access to the park for two years by the time it was entered.
The case is: Wright v. City of St. Petersburg, Florida, No. 15-10315, 2016 WL 4269796 (11th Cir. Aug. 15, 2016)