SAN ANTONIO – Progressive activists here are considering further action against a ruling by a three-judge appeals panel that the police department can selectively penalize free speech rights.

The situation started in 2006 when a huge immigrant rights march was slated to be charged $20,000-$40,000 for a marching permit. In 2008, the Women’s Day March was billed $5,000 for a permit to protest, ostensibly to cover traffic control and cleanup. Massive arrests were threatened. In most other large cities, fees for parade permits generally run $50-$200.

The San Antonio Police Department sets the skyrocketing permit costs. The fee is arbitrarily waived in the case of the Martin Luther King Day Parade, Veterans Day Parade, and Cesar Chavez March. As many as 20 different parade groups have been given waivers.

Progressive activists went to court to challenge the ordinance allowing this practice, but the ordinance was upheld. The next step was to take the case to the Fifth Circuit Appeals Court in New Orleans. The challengers argued that the First Amendment right to use the streets for free speech meant that San Antonio could not treat people differently based on the content of their speech or whether or not the city government endorsed that speech.

An amicus brief by the ACLU noted that the examples given by the city which would allow some control as “government” speech were incorrect and not applicable.(www.aclutx.org/Files/0423FifthCircuitACLUAmicus.pdf.)

The Fifth Circuit Court backed up the San Antonio court ruling. The appeals court insisted that the city does not have to provide space for marchers. Instead, it said activists could give out flyers, walk on sidewalks, or march in parks – although residents note that other restrictions apply to sidewalks and parks. The city suggested that marchers could move to other areas where they would be less visible, and it would be cheaper.

The appeals court rejected the argument that the city was discriminating by giving permit fee waivers to groups based on viewpoint. It said the city did not engage in viewpoint discrimination but “instead limited the number of favored messages for special treatment.” In reality, civil liberties advocates say, the city is singling out disfavored viewpoints for penalty.

According to lawyer Amy Kastely, the court is inventing a “new model” in which decisions can be made in a “theocratic” way, not in a neutral democratic manner. Effectively, she said, the city is choosing to subsidize some and not others, and the new model allows the police department to make decisions on what is right or wrong.

The ruling has profoundly changed the law, Kastely said. It has set up the legal infrastructure to prevent protests or events that the city does not like by making them prohibitively expensive or forcing them to go somewhere hidden from view.

Currently, immigrant rights and women’s protests are the focus here. Some groups with city-provided waivers are supportive, but others are divided by their favored position.

On September 15, leaders of the San Antonio Women’s Day March and the Free Speech Coalition met to discuss the decision of the three judges. They decided to seek a rehearing by the full 16 judges of the Fifth Circuit Court of Appeals. The leaders here consider it a real possibility that the issue may need to go to the Supreme Court.

Photo: Lawyer Amy Kastely, taken by Graciela Sanchez of the San Antonio Esperanza Center.