Last October, the New Orleans City Council passed a wide-ranging ordinance outlawing "aggressive solicitation" in the city. The new law was clearly aimed at the French Quarter and other tourist areas. Introduced by District C Councilwoman Kristin Gisleson Palmer, who represents the French Quarter and Frenchmen Street strip, the ordinance outlawed begging in many public areas with considerable specificity (within 10 feet of a gas station, within 20 feet of an intersection, within 80 feet of a bank entrance, etc.). But the tail end of the ordinance contained a vague clause that had nothing to do with begging. It reads:
"It shall be prohibited for any person or group of persons to loiter or congregate on Bourbon Street for the purpose of disseminating any social, political or religious message between the hours of sunset and sunrise."
That portion of the ordinance probably runs afoul of the First Amendment. Everyone knows the council's intent: It sought to avert hostile — and potentially dangerous — clashes on Bourbon Street between rowdy partiers and religious proselytizers. We get that. What we don't get, and what the U.S. Constitution likely won't abide, is the council's heavy-handed attempt to accomplish its aim.
For starters, the ordinance seeks to impose content-based restrictions on free speech; that approach always raises major constitutional issues. Federal law is well-settled when it comes to political speech; it is the most protected form of expression under our constitution. By including political messages in the list of restricted speech, the council casts a wide and probably unconstitutional net. Besides, politicking is hardly a problem on party-hearty Bourbon Street.
On the other hand, the First Amendment is not absolute. Government may limit speech — but it must do so with restrictions that are reasonable as to time, place and manner. Furthermore, depending on the type of speech (e.g., political), government must show that such restrictions are "narrowly tailored" and designed to further a "compelling governmental interest." In other words, government must tread very, very lightly when it comes to restricting people's right to free speech. That does not appear to be the case with the ordinance adopted last year. That ordinance was neither narrowly tailored nor reasonable as to time and place, given the fact that it banned proselytizing during the times that the intended audience was most likely to be there.
Street preachers are drawn like moths to Bourbon Street's gaudy flame, but they don't all take the same tack. Some stand silently, offering pamphlets to passersby who may or may not be interested. The law does not appear to be crafted to discourage them. Rather, it likely was aimed at the rabble-rousing, sometimes belligerent types who come for Mardi Gras and Southern Decadence, many of them bearing signs that visually and verbally bait people who are there to let their inhibitions fly and have a good time.
During this year's Southern Decadence festival, self-styled messengers of God brought their usual statements of anti-gay vitriol to Bourbon Street. Some even repeated the meme that the French Quarter's "sin" triggered God's wrath in the form of Hurricane Katrina. (Never mind that the "sinful" French Quarter was one of the few parts of town unaffected by the federal levee collapse.) Nine of the preachers were arrested; at least one carried a bullhorn. There are legitimate reasons to ban bullhorns on public streets, but that wasn't the city's justification for hauling the preachers off. Instead, cops cited the new anti-solicitation ordinance. Now some of the preachers are threatening to sue the city. While we don't like some of their messages — or their tactics — we have to agree that the preachers are on the right side of the First Amendment.
The First Amendment rightly protects not just popular expression, but also unpopular speech. Last year, the U.S. Supreme Court upheld the right of a right-wing "church" to loudly picket the funerals of fallen soldiers, AIDS patients and others. Writing for the majority in an 8-1 decision, Chief Justice John Roberts noted that if the offensive protest "was at a public place on a matter of public concern, that speech is entitled to 'special protection' under the First Amendment. Such speech cannot be restricted simply because it is upsetting or arouses contempt."
Tolerance of outlandish behavior is what attracts millions to Bourbon Street — and to New Orleans. If we're going to tolerate conduct that many would find offensive in other contexts, we also should tolerate speech that revelers might not like to hear while they're enjoying themselves.