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January 26, 2012

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I read this and proposed ordinance quickly...I am not sure what David is saying but if unconstitutional yes, you can't regulate ragtag volunteer activists or even revolutionaries, [the 1950 SCOTUS case on Communist Party dealt with this] the whole ordinance is full of 1st Amendment issues re protected speech and expression.

Carl,

You are not reading the ordinance correctly. And you are citing the wrong amendment

If the City is taken to Court over this they will lose.

I read it fast...it's re 'protected activity'...may very well be other amendment issues especially 14th

Another problem I see is lumping Neighborhood Assoc with Civic...Civic is very broad and can mean almost anything...

There is not many cases anywhere on Assoc below link is one of the few

I agree with Texaswoman, its unconstituional...I admit I read it fast but the whole time I was reading it I kept saying Jesus Christ...its just so obviously blatantly laden with constitutional issues.

"The formation of the Willow Tree Civic Association, even for the purpose of formally organizing the community against the plans of the plaintiffs, was constitutionally privileged."

http://pastebin.com/3Mie1RCM

Carl & Texaswoman,

It is not "unconstitutional" because the constitution does not protect neighborhood associations, it protects individuals.

You guys are completely mixing things up here.

Neighborhood Associations - as recognized by the city for special privileges must do certain things and must NOT do other things. It's a pretty straight forward thing here and nobody is having their civil rights violated because their club must adhere to some rules if they want to be recognized.

If you argue that this rule is unconstitutional then the ban on churches retaining their nonprofit status AND participating in direct advocacy is unconstitutional - so you are either going to be with Pastor Brown here, or you are going to be against him - what is it going to be?

Maybe I will read your writings more carefully David, I like that you are not afraid
to cite law as a fellow layperson but where I think this is headed is any misconception that the 1st Amendment only covers speech, the key is activity, to gather...expression.

David K,

1st amendment does not cover political expression once it steps into organized advocacy. You can't call a campaign donation "expression."

Again, these people haven't been banned from participating in politics, they've been banned from using their civic organization as a political tool

I also think the ordinance has prior restraint and content based issues...

A civic org's motivation cannot be a issue

"Since a campaign donation—unlike bags of cash delivered [*20] to the official himself—is protected First Amendment activity and, indeed, the normal course of politics in this country, due process requires that the potential campaign donor have notice of what sort of conduct is prohibited." United States v. Siegelman, 640 F.3d 1159, 1174 n.21 (11th Cir. 2011).

Well if you read my post all I said was I believed that the City would lose if it went to court. I didn't say what the basis was for that opinion. Your assumption of what caused me to make said statement is probably based on your own concerns over the Constitutionality of said rules as you realize that there are indeed First Amendment concerns.

http://pastebin.com/3Mie1RCM

All David or anyone has to do is read the above link to help
see 1st Amendment concerns.

Texaswoman,

There are no "1st amendment concerns" with what the city is requiring. Zero - they are not limiting personal liberties in any way shape or form. The are simply outlining what a "recognized" neighborhood association can do.

You wouldn't know the constitution if you were beat over the head with it.

The city would lose no such lawsuit. A lawsuit won't even by filed because no lawyer in the world would take the case, despite what the armchair lawyer (Starr) claims.

There are plenty of practicing attorneys reading this blog and not a single one has made a peep about the constitutionality or the legality of the proposed amendment. You'd think you'd be smart enough to realize that it's you two and not another single person out of 7 billion that think there's a problem with the constitutionality of this ordinance... You might be wrong - again.

I think the city can choose to recognize groups of 100 or more as stated in ordinance but that does not mean a group of 99 or 1 has any more less or more rights. The problem I see with the city boxing in the 1st Amendment with definitions is that they are vague and overbroad...to say a Neighborhood Association cannot be a 'political action group' and then define political action as 'support or opposition' to any INITIATIVE' chills 1st Amendment, the group with 99 would not barter away such rights ever. Same with part that says a 'political action group' cannot be a RECOGNIZED Neighborhood Association. All attempts to box in and unbox 'protected activity'.

The 1st Amendment battle is not over, no one can deny re the Mayor and Bar lawsuit, that 1st Amendment defenses have every right to be made. I realize the Mayor issue and Bar suit and the proposed ordinance are all different cases, but to me they all strike near 1st Amendment issues.

Dave, your points are valid to a degree but general at best.There are some good people involved in this process who just want their neighborhood cleaned up or preserved. There are a selected few you override the opportunity and give the process a bad name as you have pointed out. The rewrite is needed to give the ordinance teeth to those groups that take advantage of the process. Joe Wardy did this just for notification purposes. The problem is that some people cannot accept the fact that life is not fair and that sometimes you lose. Some politicians, builders and residents refuse to lose, which in turn has created these cases,threats and conflicts.

The intent was to build capacity at the neighborhood level, not play politics. Yes,in some cases, monsters have been created. They need to be exposed and removed from the process in order to allow honest and regular people the chance to improve and preserve their neighborhood.

Well said Mark. It's too bad that we end up revising ordinances because of a few malcontents that can't seem to follow the rules or understand the process and their place in that process.

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