Can’t control the right to freedom of speech
July 13, 2013
I read with interest, in the June 27 issue of The Union's opinion section, Mr. David Johnson's opinion about my right to have a political sign on my property.
In part, he said: "The free speech issue falls within the broader context of the covenants, codes and restrictions (CC&Rs) that are recorded as part of every property deed.
"When people purchase property in Alta Sierra, the escrow papers include a copy of the CC&Rs that are legally part of the deed. Clause VII reads in part, 'No billboards or other advertising device shall be erected or placed upon any lot in said tract without the written permission of the Architectural Committee.'
"Equating the loss of an illegal sign to the loss of freedom of speech is ludicrous, and the insinuation that the BOD was somehow involved in the removal of the sign is insulting."
I am very much afraid that Mr. Johnson has missed several salient points:
First, the CC&Rs are subservient to county, state and federal law. This includes the Constitution.
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In fact, all laws are subservient to the Constitution, so his conjecture that the CC&Rs somehow can control my freedom of speech is, plainly put, backward — the Constitution controls the CC&Rs. Part of that document is the First Amendment, which reads:
"Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances."
If this recall effort is not a petition of the "government" for a redress of grievances, then what is it?
Second, he declares that because the CC&Rs state: "No billboards or other advertising device shall be erected or placed upon any lot," that that makes my petition for redress of grievances an illegal sign.
What he is confusing is commercial speech with political speech. The CC&R cited refers to commercial speech. That is advertisement for goods or services. Please note that the wording is: "no billboards or other advertising device" (emphasis added).
There are a number of Supreme Court rulings that differentiate the two clearly. Perhaps the most relevant is Ohralik v. Ohio State Bar Association (1978) in which the court found:
"We have not discarded the 'common-sense' distinction between speech proposing a commercial transaction, which occurs in an area traditionally subject to government regulation, and other varieties of speech. To require a parity of constitutional protection for commercial and noncommercial speech alike could invite a dilution, simply by a leveling process, of the force of the [First] Amendment's guarantee with respect to the latter kind of speech."
Third, it was my property — somebody trespassed on it. It was my sign — somebody stole it. And it is my right to petition the government for a redress of grievances. That is what was truly stolen.
Paul Reilly lives in Grass Valley.
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