Ruling in an ACLU lawsuit, U.S. District Judge William Smith has held that Providence police violated the free speech rights of a local resident when she was barred from peacefully leafleting on a public sidewalk in front of a building where then-Mayor David Cicilline was speaking. In a 35-page opinion, the judge left for further proceedings the question of whether the three named police defendants, including former police chief Dean Esserman, could be held individually liable for violating Ms. Reilly’s First Amendment rights, or whether only the City itself was liable.
On February 2, 2010, Providence resident Judith Reilly was distributing flyers on a public sidewalk adjacent to the Providence Career and Technical Academy where Cicilline was scheduled to give his annual “State of the City” address. The flyers, prepared by the Olneyville Neighborhood Association, were critical of a Mayoral appointee. While leafleting, Reilly (along with another ONA supporter) was confronted by two police officers who ordered her to move across the street with her leaflets or else face arrest. She reluctantly moved, but then returned to the front of the auditorium, where she was confronted by two other officers who again ordered her to move. She complained that doing so would prevent her from handing flyers to her intended audience – people entering the auditorium – thus largely defeating the purpose of the activity. However, after again being threatened with arrest, she moved back across the street.
Arguing that the officers’ conduct was a clear violation of Reilly’s free speech rights, ACLU attorney Richard A. Sinapi sued on Reilly’s behalf in November 2010. The suit sought a court order declaring the officers’ conduct unconstitutional and seeking damages for violation of Reilly’s First Amendment rights. In opposing the ACLU’s suit, the City’s major argument for ordering Reilly to move was a supposed concern for keeping the sidewalk clear in case of the need for an emergency evacuation from the building. But Judge Smith noted: “There is no evidence in the record, beyond Defendants’ bald assertions, that Plaintiff’s presence in this area would have posed a hazard in the event of a mass evacuation. Additionally, because leafleters are only marginally more obstructive than other pedestrians, Defendants’ decision to ban only Plaintiff and her companion from the lower sidewalk while allowing all other pedestrians access to that same stretch of sidewalk undermines the credibility of their purported public safety justification.”
The judge said it was unclear whether the police banned Reilly from leafleting because of the specific content of her flyer, criticizing the Mayor, or because of a more general unconstitutional “custom of clearing vast public spaces in order to keep exit passageways open.” As a result, he was unable to determine whether the defendants could be held individually liable for their conduct, or whether only the City was liable due to its unconstitutional policy, and therefore concluded that a trial would be necessary to ascertain liability.
Reilly said today: “I am very pleased with Judge Smith’s decision recognizing that Providence police violated my free speech rights. More importantly, his decision has put Providence police on notice that they can no longer arbitrarily deem wide swaths of public sidewalks off-limits to leafleting under the guise of keeping exit passageways clear. This is a victory for all Providence residents and for the First Amendment.”
RI ACLU attorney Sinapi added: “Ms. Reilly's peaceful leafletting represented a time-honored method for sharing political views with other members of the public. It is disconcerting that purportedly well trained police officers in a large municipal police department like Providence could be unaware that banning such activity from a public sidewalk violated First Amendment rights. It is also disturbing that the city would spend tens of thousands of taxpayer dollars defending such patently unconstitutional conduct. While Judge Smith's decision leaves unanswered for the time being just who will be held responsible for this egregious violation, this decision will hopefully ensure that citizens exercising free speech rights in the City of Providence will not be subjected to unreasonable restrictions in the future."
