Lynn Hogue

Hogue

The Jackson County Branch of the National Association for the Advancement of Colored People (NAACP), which also draws its membership from Macon and Swain counties, has been in the news lately, in stories on Blue Ridge Public Radio and elsewhere. I write this letter out of concern that important reasons behind the NAACP’s involvement may have been lost.

The NAACP works for justice, freedom and peace. And it confronts claims to entitlement and group supremacy on the basis of racial, ethnic or religious heritage that denigrate the essential dignity, equality and liberty of all persons. In order to do its work the NAACP has had, since its founding in 1909, an important stake in the First Amendment rights of speech and press which it needs to demonstrate against and publicize iniquitous inequality whenever and wherever it is encountered.

Members of the Jackson County Branch of the NAACP became concerned about an amendment to a Sylva Town Ordinance adopted around the time of the solar eclipse in 2017.

The amendment was understood to require a permit from the police seven days in advance “for parades and demonstrations.” Because the NAACP sometimes requires demonstrations to get its message across, and might someday want to hold a parade for the same purpose, the Branch convened an internal Free Speech Task Force to review the provisions of the Sylva Code of Ordinances that caused concern.

I am an attorney who chairs the Branch’s Legal Redress Committee, and I agreed to review the ordinance. My analysis concluded that the Sylva ordinance is limited by what it says: “It shall be unlawful for any person to obstruct or block the streets or sidewalks of the town by any exhibition, demonstration, organized demonstration, picket line or commercial venture, so as to prevent the normal flow of pedestrians or vehicular traffic .... “ The ordinance provides for a special permit from the police for “temporary and peaceful occupancy of a limited portion of said streets or sidewalks” as an exception to a rule against obstructing or blocking the streets or sidewalks. The evil the law aims at is obstruction or blockage of streets or sidewalks. If there is no anticipated or actual obstruction or blocking of streets or sidewalks, then the ordinance doesn’t apply and no permit is necessary. The bottom line is that no permit is necessary to exercise one’s right of free speech, which is protected by the First and Fourteenth Amendments to the Constitution. Demonstrating and protesting are not just a part of the NAACP’s DNA, they are part of America’s DNA. Exercising one’s First Amendment rights doesn’t require, indeed cannot ever require, any license, permit or permission from the government – national, state or local.

Out of excess of caution, representatives of the Branch including its president, Enrique Gomez, met with Police Chief Tammy Hooper and another member of her staff as well as Eric Ridenour, the Sylva town attorney. Ridenour noted that the government can’t interfere with free speech. All agreed that the ordinance’s permit requirement did not apply to sidewalk demonstrations at the old courthouse or anywhere on public sidewalks or other public areas so long as there was no interference with pedestrians going about their business.

This clarification and conclusion, shared by the police, the town’s legal advisor and, of course, the members of Jackson County NAACP Branch, is important not only to the Branch and its mission of confronting discrimination and inequality, but also should be welcomed by everybody.

All Americans have a stake in the First Amendment freedoms of speech and press. It is important to realize that like any law, the ordinance can be applied in an unconstitutional way, for example, if a town official such as a police officer ever tried to demand that anyone merely protesting or demonstrating without otherwise obstructing or blocking a street or sidewalk apply for, have a permit or show such a permit from the government. The NAACP Branch does not question the constitutionality of the town’s ordinance. The town can keep its streets and sidewalks free of obstruction. To be absolutely clear, though, if streets or sidewalks are not blocked by demonstrators or protesters, free speech prevails; no permit or seven-day notification period are required.

Lynn Hogue is a law professor emeritus and chair of the NAACP Legal Redress Committee.