October 17, 2014

Weslaco City Commission
c/o Leonardo Olivares
255 S. Kansas Ave.
Weslaco, TX 78596

RE: Public forum for campaign speech

Dear Commissioners and Mr. Olivares:

I write on behalf of Greg Kerr, candidate for Weslaco City Commission.

As I understand it, the City of Weslaco operates a polling place at the visitors center
adjoining City Hall, and has for at least the last several election cycles permitted the campaigns
to place campaign signs and tents in certain public spaces in that area (subject to the 100-foot
zone required by state election law).

For constitutional purposes under the First Amendment, this public space is either a
traditional “public forum” akin to sidewalks and parks, or a “designated public forum” based on
the fact that the city has permitted this speech activity in the same space in past elections.
Whether it’s considered a traditional public forum or has been “designated” as such by practice,
the rules are the same. Two of the fundamental rules applicable here are that any government
regulation must be (1) content-neutral and (2) must be a reasonable “time, place, manner”
restriction that serves an important government interest.

Content-neutrality means at a minimum that “the government cannot regulate speech
based on its viewpoint or its subject matter unless strict scrutiny is met.”

I understand that the City has traditionally allowed campaigns to place signs and tents in
front of City Hall before and through early voting. If the City (or rival campaigns) attempt to
demand that a certain campaign remove its materials despite this practice in the past, the City
will be open to liability for violating the First Amendment rights of all the campaigns whose
materials are removed, because this raises the specter of viewpoint discrimination. In other
words, the City has permitted this exact activity in the past, and if a campaign’s opponents (or
the City officials on their own initiative) demand that the materials be removed now (apparently
because my client’s opponents are upset that they were beat to the punch), the City is potentially
liable for a constitutional violation.
Chemerinsky, CONSTITUTIONAL LAW: PRINCIPLES AND POLICIES (3d ed. 2006) § (emphasis added); see,
e.g., Niemotko v. Maryland, 340 U.S. 268 (1951).

Najvar Law Firm

Additionally, the City has always allowed campaign materials during this period before
early voting without any formal or informal “drawing” to determine spots. This past practice in
repeated election cycles undermines any possible argument that the City must now implement an
ad-hoc drawing procedure to determine which campaigns get the prime spots. Therefore, the
City has no apparent argument that changing the procedure now is necessary as a “time, place,
manner” restriction. In other words, imposing this drawing procedure amounts to an
unjustifiable restriction of First Amendment rights that would not stand up in court.

Lastly, there appears to be a motivation on the part of my client’s opponents to refuse his
campaign the same opportunity for campaign speech that has been offered to others in the past.
This raises the specter of an equal protection violation. The City may not deny a certain
candidate the equal protection of the laws, and it certainly may not selectively enforce city law to
achieve a political result. This could result in liability for a violation of the Fourteenth
Amendment equal protection guarantee. See, e.g., Police Department of Chicago v. Mosley, 408
U.S. 92 (1972); Carey v. Brown, 447 U.S. 455 (1980).

In Carey, the Supreme Court said “when government discriminates among speech-related
activities in a public forum, the Equal Protection clause mandates that the legislation be finely
tailored to serve substantial interests, and the justifications offered for and distinctions it draws
must be carefully scrutinized.” In this case, there is no way for the City to argue that any
distinction it draws to remove signs of certain campaigns this year is justified under any level of
scrutiny, when the same activity has been permitted in the past. The decision would be even less
justifiable if made administratively, rather than through studied legislation, because this would
be akin to a discretionary licensing regime, and such discretionary regimes have been treated as
presumptively unconstitutional prior restraints on speech. See, e.g., Lovell v. City of Griffin, 303
U.S. 444 (1938) (permit system leaving discretion to licensing authority invalidated as prior
restraint on speech). Therefore, the apparent ad-hoc and unexplained informal decision—which
has not been made by the Commission pursuant to its normal legislative process—is on shaky
ground indeed.

Be advised that constitutional violations such as this present a very significant financial
liability to the City, because federal law permits the recovery of all attorneys’ fees and expenses
that would be necessary to rectify any First Amendment violation.

Please let me know if I can be of further assistance.

Very respectfully,

J erad Najvar

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