Guest commentary: Free speech for vending needs clarity

A vendor sets up shop at Children’s Pool Plaza in La Jolla in 2019.
(Ashley Mackin-Solomon)

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.

I had a suggestion to use the Supreme Court’s definitions when it comes to art and expressive activity. I was very clear how eventually it would be called into question if there was not some clarity. And within less than a year it is already being called into question (“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 reason is a lot of people who are not art or expressive activity are using the First Amendment to get buy on selling things they didn’t even make with their own hands. I see people selling rings that were obviously bought from a warehouse, and they have no significant religious or political messages on them. I have seen people selling polished rocks, though they don’t have a spiritual message to convey.

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 rangers [at shoreline parks] ignore anyone who claims the First Amendment because there is no standard being used to educate the rangers.

The current exemptions of the city code read:

“The following persons, entities or activities are exempt from the requirements of this division:

• Any vendor or individual engaged solely in artistic performances, free speech, political or petitioning activities, or engaged solely in vending of items constituting expressive activity protected by the First Amendment, such as newspapers, leaflets, pamphlets, bumper stickers or buttons

• Agencies of any federal, state or local governments

• Any vendor of services that are otherwise permitted or authorized by the city of San Diego

• Any lessee or permittee of the city vending on city-owned property where vending is authorized under a city lease or permit.”

The city ignored the suggestion to use the definition from Sparks v. White in 2007, a well-known [U.S. 9th Circuit Court of Appeals] case that sets a precedent for First Amendment protections of art and busking. The parts that should have been added are listed below:

• “The protection of the First Amendment includes music, pictures, films, photographs, paintings, drawings, engravings, prints and sculptures.”

• “The degree of First Amendment protection is not diminished merely because the [protected expression] is sold rather than given away.”

These things make the language clear and concise and there wouldn’t be much room for errors in interpretation. I also suggested following the port code for vending in the tidelands, as the port code is very clear on what art and expressive activities are and what they are not.

My suggestions were ignored. Since then, instead of educating rangers on what is protected speech, the city has them allow anyone who says they are free speech, leaving lots of room for people who are not to oversaturate areas.

There are standards for testing, but regulations are tricky because any regulation that is a restriction might be considered prior restraint on free speech, and that can lead to multimillion-dollar lawsuits that are funded by taxpayers. Not something the city should want or need.

Yet the people don’t seem to understand the laws or care. They just want to control free speech and kick out anyone who disturbs their idea of public space.

This is a major issue and is causing a lot of static for artists and buskers. I am pretty sure lawsuits are already forming concerning these issues.

William Dorsett is a San Diego artist and street entertainer.