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Free Speech and Noise Regulation Collide in Santa Monica

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Roque & Mark Real Estate
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Harding, Larmore
Kutcher & Kozal, LLP

Convention and Visitors Bureau Santa Monica


By Jonathan Friedman
Associate Editor

April 13, 2016 -- Against the advice of City staff and at the urging of the hotel workers' union, several council members want Santa Monica’s noise ordinance amended to protect protest speech in commercial areas.

City staff and one council member said making this changes could create unintended consequences.

Current law prohibits noises that “unreasonably disturb the peace, quiet and comfort of persons of normal sensitivity.”

Council member Kevin McKeown proposed on Tuesday that the law be modified so that non-commercial free speech in a commercial zone from 7 a.m. to 10 p.m. “shall be presumed to be a legal activity.”

Four council members supported this proposal.

“The progressive values of Santa Monica recognize sometimes we have to live with a little bit of disruption in order to give voice to all people who have something to say, and we equally have a First Amendment right to ignore it if we choose,” Councilmember Gleam Davis said.

McKeown’s proposal would not apply to places such as the Promenade that have specific noise rules. Also, noise affecting residences, hospitals and schools in violation of the existing ordinance would not be protected.

Pam O’Connor was the council’s lone dissenter. She noted that noise regulations are shaky ground and agreed with City staff that making certain adjustments could lead down an unintended path.

She also alleged the council members were taking actions to satisfy UNITE Here Local 11.

The union requested the ordinance changes so that people can protest in front of the Shore Hotel on Ocean Avenue, which it alleges mistreats workers.

“This council frankly has an ongoing commitment to do what HERE Local 11 says to do,” she said. “I’ve seen the pattern. This is what it’s about.

"You can spin it all you want about broad ability to protest. But that’s allowed now. Nothing prohibits that.”

Prior to O’Connor’s comments, the council heard from several members of UNITE and its supporters who said existing regulations prevent people from properly protesting in front of the Shore Hotel.

“This proposed change will support free speech,” said Gabriel Rosco of Clergy & Laity United for Economic Justice (CLUE). “Free speech needs this kind of protection.”

She added, “When people’s well-being is threatened, there is a moral obligation to speak out and to speak loudly and to disrupt unjust practices.”

Several speakers talked about a recent incident in which some protesters were placed in handcuffs during a protest in front of the Shore Hotel.

They were not formally booked or jailed. A City staff report to the council addressed this incident.

“The circumstances resulting in the temporary detention of protesters was triggered by the physical conduct of the protesters, not just the noise that was being generated,” the report states.

A UNITE staff member told the council this description was not accurate and that the union advocates non-violent protest.

City Manager Rick Cole told the council he could “vividly imagine” specific modifications to the ordinance “could come back to hurt the City Council.”

He said people would be upset that certain types of protest and speech would have to be allowed, but the City would not be able to do anything about it.

“Given that we can’t regulate content, taking away from the Police Department the discretion to weigh these issues and try to work out amicable solutions could have a very significant unknowable adverse consequence,” he said.

City Attorney Marsha Moutrie is opposed to making modifications. She says the City’s existing law, which was delicately approved in 2005 and has been moderately modified since, can stand up to legal challenges.

Moutrie told the council that “it’s hard to come up with a satisfactory resolution to this because it’s just very hard to do what you want to do without affecting other activities that you’re trying not to affect.”

She said although she does not support making the changes, if the council wanted to make them, then creating regulations for Ocean Avenue specifically rather than commercial areas in general would be better.

Since a majority of the council supported McKeown’s proposal, City staff must return to the council with legal language for a proposed amendment based on his instructions.

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