Occupy Defiance is an outgrowth of the “Occupy Wall Street” movement. On October 26, 2012, several members of Occupy Defiance met in downtown Defiance, Ohio to chalk art and messages on the public sidewalks the night before the annual Halloween parade. While chalking, they were told by a Defiance police officer that what they were doing was illegal and they must stop chalking. The officer stated that he was told the Occupy group would have to stop if they wrote political messages. Several months later, a picture from the local newspaper showed several children drawing in chalk on the sidewalk. Members of the Occupy group brought this to the attention of the City Council. At the meeting, the City Law Director David Williams stated that the young individuals drawing on the sidewalk in chalk did not violate any laws because the law only prohibited the writing of words, names and advertisements -- not the drawing of pictures. The ACLU sent a letter on September 25, 2013 to Mr. Williams stating that the classification between words and pictures was irrational and unconstitutional. Mr. Williams replied that he would continue to enforce the laws against Occupy.
Legal Theory
The laws that the City of Defiance attempted to enforce against members of Occupy Defiance were inapplicable. They would only apply to painting on public property in such a manner that defaces or disfigures the property. Chalk is water-soluble and temporary, and it therefore does not deface or disfigure. Moreover, the distinction between drawings and words was unconstitutional because there is no rational basis or significant government interest in keeping chalked messages off sidewalks but not chalked drawings. Further, the City’s actions during the Halloween parade and the legal opinion of David Williams demonstrated unconstitutional content-based and viewpoint discrimination in violation of the First Amendment.
Status Update
We filed a complaint and a motion for temporary restraining order and preliminary injunction on October 22, 2013 in the United States District Court Northern District of Ohio. The case was assigned to Judge James G. Carr. The Court held a status conference on October 23, 2013 and set a deadline for a status report from the parties for November 15, 2013. Following an October 23, 2013 status conference, the City of Defiance agreed to stipulations prepared by the ACLU pursuant to which the plaintiffs would be granted a permit to chalk on City of Defiance public sidewalks pending a hearing on our motion for preliminary injunction. Based on the parties’ stipulations, plaintiffs submitted their application to the City of Defiance for a license to chalk. After the City of Defiance approved that license, Occupy Defiance held a Chalk Walk event in Defiance on October 25, 2013. At the Court’s request, and in cooperation with the City of Defiance, we filed a Joint Status Report on November 15, 2013 that apprised the Court of the parties’ progress with the case. The City of Defiance and Defiance city officials filed their Answer to our Complaint on December 20, 2014. The Court requested that we file an abbreviated motion for a preliminary injunction by March 17, 2014 and scheduled a hearing for March 24, 2014. The parties served each other with discovery requests and began settlement negotiations. Because of the then-ongoing settlement negotiations, the Court vacated the motion deadline and hearing date. We filed a status report on May 7, 2014.
Following further negotiations, we were able to reach a settlement with Defendants. The final Settlement Agreement was signed by all parties at the end of June, 2014. The terms of the settlement included: (1) payment to Plaintiffs in the amount of $1,000 each and to the ACLU of Ohio in the amount of $2,000; (2) an agreement that the Defiance City Ordinances requiring permits for signs do not apply to writing on sidewalks in chalk; and (3) an agreement by the City of Defiance to provide training on the First Amendment and free speech to every police officer employed by the City of Defiance.
Defendants provided evidence that the City of Defiance complied with the terms of our Settlement Agreement, and on July 1, 2014, we filed a stipulated notice of dismissal. A week later, on July 8, 2014, the court ordered the permanent dismissal of the case.
