Guest commentary: Does First Amendment protect some sidewalk vendors? Here are the tests to be passed

Vendors operate at Scripps Park at La Jolla Cove in 2021.
Vendors operate at Scripps Park at La Jolla Cove in 2021. La Jollans are questioning how to curb vendors currently operating under a First Amendment exception to San Diego restrictions.
(Bob Evans)

The issue of whether the sidewalk vendors in La Jolla’s shoreline parks are even engaging in constitutionally protected activity has thankfully been broached (“La Jolla group seeks high-level input from S.D. on how to curb ‘so-called First Amendment’ sidewalk vendors,” April 6, La Jolla Light).

The First Amendment, it should be noted, protects freedom of speech, not conduct. So the first determination would have to be whether any of the vendors’ activity constitutes speech protected by the First Amendment.

As a First Amendment advocate, I have worked with San Diego Parks & Recreation and others in the city to try to draft protections for artists and buskers.

In Spence v. Washington, the U.S. Supreme Court fashioned a two-part test to determine when non-verbal communications are “sufficiently imbued with elements of communication to fall within the scope of the First Amendment.” First, there must be an intent to communicate a message. And second, the message is likely to be understood by those who view it. If either of those elements is missing, it’s likely the non-verbal communication is not protected by the First Amendment.

If, on the other hand, it’s determined that the activity is expressive, then another test applies. This test comes from United States v. O’Brien and, naturally enough, is called the O’Brien Test. First, the regulation of expressive conduct must be within the constitutional power of the government to enact. Second, the government must be advancing a substantial interest. Third, that interest must be unrelated to the suppression of speech. And finally, the regulation must regulate no more speech than is necessary to advance the interest.

Here, the city of San Diego undeniably is empowered to protect our open spaces and to ensure that our walkways and sidewalks are free from clutter. Second, the protection of open spaces for all is, for many reasons, substantially important. Third (and this is the issue on which any litigation will focus), the city’s regulations must be unrelated to suppressing the vendors’ speech rights — i.e., it must be content-neutral.

If the enactments are, as one would expect, simply to ensure that open spaces are protected and that all have an opportunity to enjoy nature without visual pollution, then it’s more likely than not that a court will uphold the ordinances. (Here, a review of the legislative discussions and intent will take place.)

And finally, the city will have to show that the ordinances are the least restrictive means of achieving the goal of maintaining open spaces. In other words, there are no alternative means. This last element might pose a problem for the city, as it could be conceivable for open spaces and a very limited number of vendors to coexist. If this last compromise proves promising and a limited number of vendors is allowed, the government will rely on its undeniable power to regulate the time, place and manner of the speech.

However a court decides this percolating issue, it’s exciting to know that these constitutional questions are unfolding right here in our own backyard. The Constitution is indeed a relevant and living document for us all.

James Rudolph is a lawyer who lives in La Jolla.