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Santa Ana Mayor and City Council <br />March 18, 2024 <br />Page 3 <br />councilmembers raises serious concerns that the intent behind the ordinance is to discriminate <br />against pro -Palestinian speech. <br />The distance requirement imposed by the draft ordinance is also concerning. <br />Congressman Correa's home is surrounded by a tall fence and dense greenery. Requiring <br />protesters to picket nearly a football field away from the Congressman's home will largely <br />insulate him —but not his neighbors —from the protesters. The draft ordinance includes the same <br />restrictions as the ordinance at issue in Klein, and the ordinance's likely impact on the Correa <br />protests mirrors concerns that the Ninth Circuit raised with 300-foot restrictions more broadly. <br />Although the court in Klein held that San Diego County's ordinance was facially constitutional, <br />i.e., not unconstitutional in every conceivable application, it acknowledged that the ordinance <br />was nonetheless problematic. Id. at 1031, 1036. Among the many issues, the ordinance did not <br />include more limited restrictions on speech. Id. at 1036. The ordinance was also problematic <br />because it had a one -size -Fits -all approach that allowed picketing at the property line for large <br />lots with homes that were set back but, as is the case with protests directed at Congressman <br />Correa, forced picketers several lots away from their target audience in neighborhoods with <br />smaller lots. Id. <br />The San Diego County ordinance was also a lot more restrictive than targeted residential <br />picketing laws upheld by other courts. Id. The Eighth Circuit, for example, upheld an ordinance <br />in Douglas v. Brownell, 88 F.3d 1511, 1520-21 (8th Cir. 1996), that banned picketing directly in <br />front of a targeted residence but permitted picketing across the street. That same year, the Eighth <br />Circuit struck down a ban that prohibited picketing within 200 feet of a targeted residence. <br />Kirkeby v. Furness, 92 F.3d 655, 660 (8th Cir. 1996). Other courts have also banned restrictions <br />over 200 feet. See, e.g., Murray, 138 N.J. at 232-33 (banning a 300-foot restriction). The draft <br />ordinance, like the San Diego ordinance, is thus on the more extreme and restrictive end of <br />residential picketing laws that courts have upheld. The draft ordinance is particularly concerning <br />in a city like Santa Ana, where the City Council has historically shown a commitment to civil <br />rights and liberties by adopting progressive policies following robust public discourse. There is <br />no reason why Santa Ana should have more restrictive protest laws than Arkansas, a state in the <br />Eighth Circuit that is not known for its respect for civil liberties. <br />While the proposed ordinance may be likely to survive a facial constitutional challenge in <br />court, it is less likely to survive an as -applied challenge and there is strong evidence of viewpoint <br />discrimination. Councilmembers should also consider whether stifling speech in this way aligns <br />with the City's values. We believe that the draft ordinance does not align with Santa Ana's <br />values and urge the Mayor and the Council to reject the ordinance. If you would like to discuss <br />further, please do not hesitate to contact us at jmarkovitzgaclusocal.org and <br />igomezLaclusocal.org. <br />Sincerely, <br />Jonatan Markovitz <br />Free Expression and Access to <br />Government Staff Attorney <br />Julia A. Gomez <br />Senior Staff Attorney <br />AMERICAN CIVIL LIBERTIES UNION FOUNDATION OF SOUTHERN CALIFORNIA <br />