McCalip (center) in conversation with the officers who cited him for passing out fliers. Photo by Greggory Moore

After a five-year run, the annual TED Conference is moving on, but it leaves the City of Long Beach with a pair of First Amendment questions put into play by a pair of security guards.

On Monday, February 25, George McCalip says he was passing out fliers on the northeast corner of Long Beach and Ocean boulevards—in other words, across the street from the conference—when two TED security guards let him know, in no uncertain terms, that he could not do that. McCalip informed the Long Beach Post that he intended to pass out fliers again two days later.

That Wednesday, the Post witnessed what McCalip says were the same two burly, nattily-attired security guards monitoring McCalip from the east (as opposed to in front of the TED Conference itself). After conferring with someone on the other end of a two-way radio, the guards approached McCalip and told him he should “get ready to leave,” then walked across the street and asked a Long Beach Police Department motor officer to stop McCalip from passing out fliers. The officer summoned a patrol unit, which arrived within five minutes. Those officers issued McCalip a citation for distributing “advertise[ments]/handbills in [a] public place,” a violation of LBMC Sec. 5.46.060.[1] The officers also confiscated not only the fliers in McCalip’s hand, but also the ones in his pocket.

Once the officers departed, McCalip crossed the street and attempted to make a citizen’s arrest of the security guards, claiming they “willfully deprived me of my First Amendment right to distribute fliers,” thus violating a pair of federal criminal statutes.[2] The motor officer summoned his sergeant to handle McCalip’s complaint. The sergeant declined to take the security guards into custody, but took a report.

McCalip says he has filed a report with the FBI concerning the criminal statutes; and that he is contemplating civil lawsuits against both TED Conferences LLC and the City under a separate federal statute.[3]

Aaron Caplan, associate professor of law at Loyola Law School Los Angeles and former staff attorney for the American Civil Liberties Union (ACLU), believes there is constituional ground for a case against the City.

“We ordinarily refer to the sidewalk as a ‘traditional public forum,’ and there’s long line of Supreme Court cases that goes back to the early 1940s that says people get to engage in free speech in traditional public forums,” Caplan says. “They don’t need the government’s permission, and it’s improper for the government to force them to get a license [to do so] or anything else. The only thing that that a city is allowed to do to restrict speech in a traditional public forum is what’s known as a ‘reasonable time, place, or manner restriction.’ […] But something that just says, ‘You can’t pass out leaflets at all’ […] would definitely be unconstitutional.”

Caplan notes that although “commercial speech” such as advertising fliers can be regulated in ways that ordinary speech cannot, and the Long Beach ordinance restricts only commercial speech—with an exception for newspapers—the City is probably not on solid constitutional ground.

“The [Supreme] Court has been pretty protective in recent years of commercial speech,” he says. “It’s getting more and more similar protections to what is enjoyed by non-commercial speech. I would be amazed if a city can have a ban on commercial speech in a traditional public forum, especially when it has an exception for newspapers. I can give out newspapers, but I can’t give out leaflets? Why are they playing favorites like that?”

Among the case law that appears germane to the constitutionality of the City’s ordinance is Cincinnati v. Discovery Network, Inc. In that 1993 decision, the Supreme Court ruled that the City of Cincinnati’s prohibition of “hand[ing] out or distribut[ing] or sell[ing] any commercial handbill in any public place” was unconstitutional.

“The city’s selective and categorical ban on the distribution, via newsrack, of ‘commercial handbills’ is not consistent with the dictates of the First Amendment,” the Court held. “[…] Because the city’s regulation of newsracks is predicated on the difference in content between ordinary newspapers and commercial speech, it is not content neutral and cannot qualify as a valid time, place, or manner restriction on protected speech.”

Caplan speculates that the City may have passed the ordinance with an eye toward minimizing leaflet litter and/or preventing leaflet distributors from interfering with pedestrian right of way; but he notes that the Supreme Court has ruled that while cities may prohibit litter and obstructing the sidewalk, they cannot ban leaflet distribution based on those concerns.

Deputy City Attorney Gary Anderson tells the Post that he is not aware of any law that renders the Long Beach ordinance unconstitutional, and that to his knowledge the City has never been challenged on the ordinance.[4]

The court date on McCalip’s citation is May 28. Meanwhile, the Post has submitted a Public Records Act Request (PRAR) to find out how many times last year the LBPD cited persons for violating 5.46.060. The City has informed the Post that it will respond to the PRAR on or before April 4.

***

By a strange stroke of constitutional coincidence, while McCalip was attempting to make his citizen’s arrest, one of those same security guards chased off a pair of photographers by telling them they were not allowed to take photographs of the conference’s approach area—a restriction that may be included in agreements the City of Long Beach makes with conventions and other special events, according to a police officer on the scene. Come back next week for that story.

Second photo: One of McCalip’s fliers (the QR code links to a discount at local businesses)