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Santa Ana Mayor and City Council
<br />March 18, 2024 Page 2
<br />privacy interest"). The First Amendment exists precisely to ensure "the unfettered interchange of
<br />ideas for the bringing about of political and social changes desired by the people," and targeted
<br />residential protests of elected officials fall squarely within this purpose. See New York Times v.
<br />Sullivan, 376 U.S. 254, 269 (1964) (there exists a "profound national commitment to the
<br />principle that debate on public issues should be uninhibited, robust, and wide-open, and that it
<br />may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government
<br />and public officials").
<br />Santa Ana residents have previously engaged in targeted residential protests of elected
<br />officials without a suppressive response from the Council. In 2016, for example, following an
<br />unsuccessful hunger strike calling on the City Council not to extend the City's contract with U.S.
<br />Immigration and Customs Enforcement, protesters ended their strike in front of then-
<br />Councilmember Vicente Sarmiento's home. i Since October, Santa Ana residents who want an
<br />end to Israel's war on Gaza have similarly exercised their First Amendment rights by engaging
<br />in targeted residential and commercial protests. On February 22, protesters picketed in front of
<br />the Ebell Club where Mayor Amezcua was hosting a reelection campaign fundraiser, calling on
<br />the Mayor to support a ceasefire resolution. Although Mayor Amezcua purportedly called law
<br />enforcement to the scene, there were no arrests or altercations. Protests in front of Congressman
<br />Correa's home calling for support for a ceasefire have also been ongoing. As stated in the
<br />urgency ordinance, it is only in response to these recent actions espousing pro -Palestinian views
<br />that the Council has now introduced an ordinance to severely limit residential picketing.2
<br />The agendizing of the ordinance in response to ongoing residential protests raises an
<br />inference that the measure is intended to stifle expression of a political viewpoint that the Mayor
<br />and some members of the Council may disagree with, but laws that discriminate based on
<br />viewpoint are unconstitutional.3 Police Dep't of City of Chicago v. Mosley, 408 U.S. 92, 96
<br />(1972) ("under the Equal Protection Clause, not to mention the First Amendment itself,
<br />government may not grant the use of a forum to people whose views it finds acceptable, but deny
<br />use to those wishing to express less favored or more controversial views"). Even if a law is
<br />content -neutral on its face, the law may nonetheless be unconstitutional if it is in fact "a facade
<br />for viewpoint -based discrimination." Cornelius v. NAACP Legal Defense and Educ. Fund, Inc.,
<br />473 U.S. 788, 811 (1985); Reed v. Town of Gilbert, Ariz., 576 U.S.1555 166 (2015) (noting that a
<br />"content -based purpose may be sufficient ... to show that a regulation" discriminates based on
<br />viewpoint) (internal quotation marks omitted). Here, the introduction of the proposed ordinance
<br />to address two ceasefire protests coupled with other actions by the Mayor and some
<br />' See, Jessica Kwong, Santa Ana Moves to Ease Out of ICE Contract for Jail Detainees; Transgender Study
<br />Planned, The OC Register (May 18, 2016), h!tps://www.ocreizister.com/2016/05/18/santa-ana-moves-to-ease-out-
<br />of-ice-contract-for-jail-detainees-transgender-study_planned/; Orange County Immigrant Youth United, We're
<br />Officially Ending the Hunger Strike in Front of Congressman Vince Sarmiento's House. This Isn't an End to Our
<br />Efforts ..., Facebook (May 19, 2016), hitps://www.facebook.com/watch/?v=10154338286001264.
<br />2 The urgency ordinance was drafted at least in part to respond to the February 22 Ebell Club protest and a February
<br />24 protest in front of Congressman Correa's home. No other protests targeting either residences or commercial
<br />buildings located near residences are cited. See City Council Agenda Packet for March 19, 2024 Meeting at 24-5.
<br />3 Santa Ana residents have also raised concerns that the Mayor has limited public comments in support of a ceasefire
<br />resolution and in support of an ethics investigation related to the proposed resolution. During the December 19, 2023
<br />meeting, for example, the Mayor called for a recess following ceasefire chants. After a recess, the meeting resumed,
<br />but the Mayor refused to re -open the meeting to allow members of the public to provide comment either in person or
<br />through Zoom. See Brandon Pho, Santa Ana City Council Kicks Public Out of Meeting After Ceasefire Chants, The
<br />Voice of OC (Dec. 20, 2023), hops://voiceofoc.org/2023/12/santa-ana-city-council-kicks-public-out-of-meeting-
<br />after-ceasefire-chants/.
<br />AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA
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