April 2007 - The ACLU explains why, despite six months of hard work in the mayor’s SAFE workgroup, it came out against the proposed ordinance
NOTE: The following is an essay submitted for publication in April 2007 to Street Roots, a grassroots newspaper by and for people experiencing homelessness and poverty. Visit Street Roots online.
By Andrea Meyer
Recently, the Portland City Council took public testimony on a new ordinance to criminalize the activity of sitting and lying on a sidewalk in the downtown and Lloyd Center areas, frequently referred to as the “sit/lie” ordinance. The ACLU of Oregon testified before Council urging it not to pass this ordinance in its current form.
The ACLU is alone in its opposition to the ordinance despite its participation and endorsement of the SAFE workgroup report that recommended a revised sit/lie ordinance. As a participant in the process, I wanted to explain why ACLU spoke out against the sit/lie ordinance.
Indeed, I remain supportive of the SAFE workgroup, both the process and the recommendations that were made. This was a unique approach, and we believe it advanced the issues at play. For ACLU, which has opposed earlier sit/lie ordinances as an infringement on lawful activity, the specific language and scope of this ordinance were critical. For example, ensuring that sufficient public restrooms and benches are available in the very same area where people may sit or lie (thus giving them the opportunity to remain in the area) has been essential to ACLU's willingness to even consider supporting a very limited sit/lie ordinance.
Unfortunately, while the SAFE report included detailed concepts of the new ordinance, the members of the workgroup were never given the actual text of the ordinance for review prior to our endorsement of the SAFE report. If I had been given an opportunity to review the actual ordinance, I would have quickly expressed ACLU’s objections. If we could not have come to consensus, ACLU would have been a “no” vote in the SAFE workgroup on the report.
So why did the ACLU come out against the sit/lie ordinance? Because the scope of the ordinance goes well beyond what was agreed to and set forth in the SAFE report.
Over the six months of meetings, I continually questioned the scope of the activity to be included in a new ordinance. Over and over again it was described as restricting only those “sitting and lying on the sidewalk” and nothing more. Indeed, the language of the SAFE report reflects this agreement. “[E]nact a ‘High Pedestrian Traffic Area’ Ordinance [that] . . . would have the following characteristics and oversight elements: No one will sit or lie down on a public sidewalk . . .” (page 7, item 4). However, the ordinance not only prohibits sitting and lying on the sidewalk but goes much further to prohibit a person from sitting or lying down on a “chair, stool or any other object placed upon a public sidewalk.”
These elements unacceptably broaden the prohibition to which ACLU agreed. When SAFE discussed the problems that police and businesses were having with sidewalk use, those problems were articulated as sitting and lying directly on the sidewalk. Sitting on chairs, stools, and other objects was not articulated. We believe sidewalks should be accessible for all people, and we think that our sidewalks, particularly downtown, must remain vibrant and inviting for everyone, regardless of whether they are moving or sitting.
In addition, it appears by other language in the ordinance that it will be used against people lying on benches. The ACLU opposes the use of this ordinance against individuals who are lying on benches. If this had been discussed in the workgroup, ACLU never would have supported that decision.
I also understood that there would be a full embrace of free speech protections as reflected in the language of the SAFE report, page 8. “Exceptions will include . . . free speech assembly (lawful demonstration, parade, etc).” Instead, there is restrictive language in the actual ordinance, and individuals can sit or lie on the sidewalk to engage in lawful political speech only if a permit is obtained. However, most gatherings on the sidewalk do not rise to the level of requiring a permit as established under Chapter 7.22 of the City code. Under this ordinance, anyone without a permit who sat down would be breaking the law, even if engaged in political speech. The second exception allows people to sit on the sidewalk only if there is more than one demonstrator and the gathering is for less than eight hours. Neither the restriction on the number of participants nor the length of time is appropriate as they both chill free speech activities.
In our view, the current proposed ordinance varies unacceptably from language agreed upon in the workgroup and set forth in the recommendations. ACLU has urged Council to fix the problems in the ordinance by removing the language that goes beyond what was stated in the report. However, Council appears unwilling to make any changes, although they still have the opportunity as the ordinance has not yet passed. It has been very disappointing to find ourselves at the end of so much hard work and productive dialogue to be the lone voice in opposition to the ordinance. But it is also very disappointing to have an ordinance that goes well beyond the scope of what was agreed to after six months of discussion.
Andrea Meyer is the Legislative Director for the ACLU of Oregon.