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Thread: Arlington PD defend innocent civilians from crime of solicitation of the constitution

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    Regular Member stealthyeliminator's Avatar
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    Arlington PD defend innocent civilians from crime of solicitation of the constitution

    How does Arlington PD feel about 'solicitation' of the constitution? Like this: https://www.facebook.com/photo.php?f...02178723090978

    Arlington Code of Ordinances
    Streets and Sidewalks
    Chapter 15.02 Prohibited Acts
    C.
    No person shall stand or walk on or in any manner occupy a shoulder, improved shoulder, sidewalk, median or public right-of-way for the purpose of distributing literature or any other object to the occupant of a vehicle, other than a lawfully parked vehicle.

    Chapter 16.01 Violations
    Violation of any provision of this Chapter shall be considered a misdemeanor offense punishable by a fine not to exceed Five Hundred and No/100 Dollars ($500.00). Each day that a violation is allowed to continue shall be a separate offense.

    So why are they being threatened with arrest for violation of this statute? Perhaps some of the officers at Arlington PD have some issues. https://www.youtube.com/watch?v=ZAdv0uP2OXE
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    Violates 1st amendment rights ...

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    Regular Member stealthyeliminator's Avatar
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    Is it that simple? Are they creating, or could they create, a traffic hazard by passing the literature out to drivers? And would that hazard be sufficient to justify a prohibition on their actions?

    Just playing a little devil's advocate
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    Regular Member Fallschirmjäger's Avatar
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    Sorry, NOT a First Amendment issue; not anymore than prohibiting the shouting of "Fire!" in a crowded restaurant is a restriction on the 1st.
    The issue is the safety of pedestrians (bill profferers) and drivers (that may be caught unawares by another driver's unpredictable movements as they try to escape or accept the solicitation.)

    Edit: to be more accurate, I should say "Falsely shouting "Fire!" as shouting "Fire!" if there is an actual fire is a considerate act.
    Last edited by Fallschirmjäger; 03-28-2014 at 10:14 PM.

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    Quote Originally Posted by Fallschirmjäger View Post
    Sorry, NOT a First Amendment issue; not anymore than prohibiting the shouting of "Fire!" in a crowded restaurant is a restriction on the 1st.
    The issue is the safety of pedestrians (bill profferers) and drivers (that may be caught unawares by another driver's unpredictable movements as they try to escape or accept the solicitation.)
    That old "yelling fire" is an old wifes tale you know.

    Parts about sidewalk etc unconstitutional

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    That old "yelling fire" is an old wifes[sic] tale you know.
    Really? If falsely shouting "Fire!" in a crowded theater is protected speech, then I guess falsely phoning a school to tell them of a bomb threat is just as protected?

    Maybe people should be allowed to stand on the dotted lines of the Interstate highway to offer pamphlets to motorists as they speed by at 70 mph? It's the First Amendment, right?
    Last edited by Fallschirmjäger; 03-28-2014 at 10:23 PM.

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    Quote Originally Posted by Fallschirmjäger View Post
    Really, well how 'bout you prove it.
    Go to a crowded theater, falsely yell "Fire!" in the middle of the performance as to panic the attendees and show me where you don't get charged for anyone injuring themselves.

    Put up or shut up, David.
    I'll lend you a video camera if you need one.
    how can I prove a negative .. sorry, up to you to show that "shouting fire" case.

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    how can I prove a negative .. sorry, up to you to show that "shouting fire" case.
    Yeah, that's a real head scratcher, isn't it?
    I mean obviously recording the non-reaction of people reacting to someone falsely yelling "Fire!" in a crowded theater wouldn't work because the camera wouldn't be able to record the non-reaction of the people not reacting to the false alarm.

    Maybe you could come up with a way to do it and get it patented... in your spare time, of course.

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    Regular Member stealthyeliminator's Avatar
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    IMO the only way shouting a false alarm could be "wrong" is if you violated someone's property rights by doing so, and/or caused damage. For instance, if you went into an abandoned theater and shouted "fire!" at the top of your lungs, and nobody but the roaches heard you, you would not have done anything wrong, but you could still be in violation of the law if there was a city ordinance prohibiting the shouting of fire in a theater. Another example might be that it would obviously not be wrong for an actor to shout fire as part of his act.

    On the other hand, if a patron shouted fire in a crowded theater, and it alarmed to a degree of panic, and caused people to potentially or actually injure themselves attempting to exit the theater, you might have a case that the "fire"-shouter caused damages. Not to mention that he shouted fire on someone else's property which could probably be considered a violation of their contract/a condition of entry onto the property, and also caused damages in that the theater own may lose business or profit.

    This brings up an interesting topic to me. Let's examine the current disorderly conduct statute. Essentially it prohibits one from carrying a firearm in a manner calculated to alarm. I've always thought of this as, basically, a regulation on the second amendment right to bear arms. Perhaps it could actually be viewed as a regulation on the first amendment speech. It is not illegal to carry a firearm, it is illegal to use that firearm to communicate a certain message.

    In closing, perhaps it should not simply be illegal to hand out documents in certain places, perhaps it should be a crime to hand out documents in a certain place, when it causes a certain problem. I have a hard time subscribing to any theory that an act should be prohibited as a preventative measure.

    On another forum somewhere, there was a long thread about gun control and the whole theater-fire issue was of course on of the subjects brought up. There were some excellent posts in that thread. I wish I could remember where it was.
    Last edited by stealthyeliminator; 03-29-2014 at 02:50 PM.
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    Regular Member papa bear's Avatar
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    I'll have to agree with Fallschirmjäger on this, you do have the right to do lots of things as long as you don't interfere with other people. if they were handing them out on the side walk, and offering them to people (people could turn them down if they wanted to). i could see the protesters point. one thing you don't want to be when you are trying to make a point is don't be an a$$

    Stealthy, just to let you know. there are no private property rights in the US. but i do get the point you are making
    Luke 22:36 ; 36Then said he unto them, But now, he that hath a purse, let him take it, and likewise his scrip: and he that hath no sword, let him sell his garment, and buy one.

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    i you call a CHP a CCW then you are really stupid. period.

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    Regular Member stealthyeliminator's Avatar
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    Yeah, personally I'm not a fan of the shouting and name calling. Also I understand the difference between your rights being suppressed, and you being prohibited from doing something which would be your right to do in other circumstances. For instance, I can't go break into your house in the middle of the night to hand you a copy of the constitution, even though 'handing out the constitution' (or other literature) would generally be a constitutionally protected act. By the same token, prohibiting handing materials to others who are actively driving a vehicle on the roadway isn't necessarily a violation of your right to free speech or press just because speech/press is one aspect of your overall action.

    I'm not saying I agree or disagree with the regulations in Arlington, just saying I think I can see more than one perspective to the issue.

    Probably if anything, I'd say that the law needs to be changed to more accurately prohibit the problematic aspect of the act, and more clearly communicate the intent of the prohibition.
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    I agree that the so-called prohibition (prior-restraint) againt shouting 'fire' in a crowded theater is pure baloney. Think about it for a minute.

    - What if the theatre is actually on fire?
    - What if the theatre is not really crowded, ok to yell fire?
    - What if the theatre performance requires an actor to yell 'fire' as part of his/her performance?

    A lie repeated becomes the truth.
    Last edited by OC4me; 03-31-2014 at 08:49 AM.

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    Regular Member Fallschirmjäger's Avatar
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    "Shouting fire in a crowded theater" is a popular metaphor for speech or actions made for the principal purpose of creating unnecessary panic. The phrase is a paraphrasing of Oliver Wendell Holmes, Jr.'s opinion in the United States Supreme Court case Schenck v. United States in 1919, which held that the defendant's speech in opposition to the draft during World War I was not protected free speech under the First Amendment of the United States Constitution.

    The paraphrasing does not generally include the word "falsely", i.e., "falsely shouting fire in a crowded theater", which was the original wording used in Holmes's opinion and highlights that speech which is dangerous and false, as opposed to speech which is truthful but also dangerous.
    - What if the theatre is actually on fire?
    Then it wouldn't be falsely shouting "Fire!" would it?

    - What if the theatre is not really crowded, ok to yell fire?
    Then no one would be at risk of injury and no harm would be attached.

    - What if the theatre performance requires an actor to yell 'fire' as part of his/her performance?
    No malum in se, the same as if someone as part of a theater performance threatened to kill another actor, libeled another actor, or pressed the red button that would launch ten thousand nuclear warheads to destroy the world, it's ... what's that word? Pretend? Yes, it's pretend.

    I know everyone enjoys a good debate, but this is getting into the 'how many angels can dance on the head of a pin' territory. As one will note, the handing out of tracts is not prohibited but only "walk on or in any manner occupy a shoulder, improved shoulder, sidewalk, median or public right-of-way for the purpose of distributing literature or any other object to the occupant of a vehicle, other than a lawfully parked vehicle." In such a venue anything other than a lawfully parked vehicle is going to be one that's either moving or illegally parked. As I stated, it's not a "First Amendment" issue, it's a traffic safety issue. One could as easily be prohibited from exercising one's freedom of speech by flashing the text of the Constitution to other drivers by using one's high beams or one's brake lights.
    Last edited by Fallschirmjäger; 03-31-2014 at 09:43 AM.

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    Regular Member Primus's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    - What if the theatre is actually on fire?
    Then it wouldn't be falsely shouting "Fire!" would it?

    - What if the theatre is not really crowded, ok to yell fire?
    Then no one would be at risk of injury and no harm would be attached.

    - What if the theatre performance requires an actor to yell 'fire' as part of his/her performance?
    No malum in se, the same as if someone as part of a theater performance threatened to kill another actor, libeled another actor, or pressed the red button that would launch ten thousand nuclear warheads to destroy the world, it's ... what's that word? Pretend? Yes, it's pretend.

    I know everyone enjoys a good debate, but this is getting into the 'how many angels can dance on the head of a pin' territory. As one will note, the handing out of tracts is not prohibited but only "walk on or in any manner occupy a shoulder, improved shoulder, sidewalk, median or public right-of-way for the purpose of distributing literature or any other object to the occupant of a vehicle, other than a lawfully parked vehicle." In such a venue anything other than a lawfully parked vehicle is going to be one that's either moving or illegally parked. As I stated, it's not a "First Amendment" issue, it's a traffic safety issue. One could as easily be prohibited from exercising one's freedom of speech by flashing the text of the Constitution to other drivers by using one's high beams or one's brake lights.
    Well said. +1

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    "The wicked flee when no man persueth: but the righteous are as bold as a lion" Proverbs 28:1

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    Regular Member OC for ME's Avatar
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    I guess firemen, at intersections, holding a boot out for donations is out in Arlington, too.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Regular Member Fallschirmjäger's Avatar
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    Quote Originally Posted by OC for ME View Post
    I guess firemen, at intersections, holding a boot out for donations is out in Arlington, too.
    I was wondering the same, myself. But the way the code is written, it's the coupling of "purpose of distributing literature or any other object " and the danger of standing in traffic that's prohibited. "Accepting any object" in this case dollars, does not seem to trigger the prohibition.

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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    - What if the theatre is actually on fire?
    Then it wouldn't be falsely shouting "Fire!" would it?

    - What if the theatre is not really crowded, ok to yell fire?
    Then no one would be at risk of injury and no harm would be attached.

    - What if the theatre performance requires an actor to yell 'fire' as part of his/her performance?
    No malum in se, the same as if someone as part of a theater performance threatened to kill another actor, libeled another actor, or pressed the red button that would launch ten thousand nuclear warheads to destroy the world, it's ... what's that word? Pretend? Yes, it's pretend.

    I know everyone enjoys a good debate, but this is getting into the 'how many angels can dance on the head of a pin' territory. As one will note, the handing out of tracts is not prohibited but only "walk on or in any manner occupy a shoulder, improved shoulder, sidewalk, median or public right-of-way for the purpose of distributing literature or any other object to the occupant of a vehicle, other than a lawfully parked vehicle." In such a venue anything other than a lawfully parked vehicle is going to be one that's either moving or illegally parked. As I stated, it's not a "First Amendment" issue, it's a traffic safety issue. One could as easily be prohibited from exercising one's freedom of speech by flashing the text of the Constitution to other drivers by using one's high beams or one's brake lights.
    People are murdered in the name of "safety" - it's no good argument to justify coercive prohibition. IMO, probably, only when actual damages are done or potentially when you substantially increase the level of danger a person is in to a degree that it is threatening them should your action be prohibited. Perhaps the fact that 100's of documents have been handed to drivers stopped at intersections without incident lends to the argument that there isn't a real safety concern, at least not one that justifies prior restraint.

    The original question I asked, though, is, why are these men being threatened with arrest for a simple class c misdemeanor violation which hasn't even actually caused damage at the time of the threat? For the slow ones (not directed at anyone in particular): that means as opposed to issuing a citation.
    Last edited by stealthyeliminator; 03-31-2014 at 06:45 PM.
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    Regular Member Fallschirmjäger's Avatar
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    A Class C misdemeanor is essentially an offense similar to a traffic ticket where it’s punishable by fine only, and by a fine only of up to $500; it is the lowest, least criminal of misdemeanors.

    See Atwater v. Lago Vista (TX).
    (the opinion itself)
    The Court held that officer “[An Officer] was authorized (though not required) to make a custodial arrest without balancing costs and benefits or determining whether [the accused] arrest was in some sense necessary.” I suspect in this case that the department is exercising the opportunity to make known what may happen as a way to discourage an incident before it does happen.
    Also know as, "You may only have to pay a $10 fine, but we're gonna make your day a little more miserable iffin we can, y'hear?"
    Last edited by Fallschirmjäger; 03-31-2014 at 08:12 PM.

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    Regular Member OC for ME's Avatar
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    Quote Originally Posted by Fallschirmjäger View Post
    I was wondering the same, myself. But the way the code is written, it's the coupling of "purpose of distributing literature or any other object " and the danger of standing in traffic that's prohibited. "Accepting any object" in this case dollars, does not seem to trigger the prohibition.
    So, can't give to a stopped driver, but ya can take from a stopped driver.
    "I would rather be exposed to the inconveniences attending too much liberty than to those attending too small a degree of it." - Thomas Jefferson.

    "Better that ten guilty persons escape, than that one innocent suffer" - English jurist William Blackstone.
    It is AFAIK original to me. Compromise is failure on the installment plan, particularly when dealing with so intractable an opponent as ignorance. - Nightmare

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    Quote Originally Posted by davidmcbeth View Post
    Parts about sidewalk etc unconstitutional
    No, someone else already said it - it's not a free speech issue - it's a public safety issue. If the car is legally parked, you can still hand the occupants literature from the sidewalk.

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    Regular Member stealthyeliminator's Avatar
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    Quote Originally Posted by jsimmons View Post
    No, someone else already said it - it's not a free speech issue - it's a public safety issue. If the car is legally parked, you can still hand the occupants literature from the sidewalk.
    The claim is probably that it's a safety issue. That it actually is a safety issue hasn't been proven. In fact, I think there is far more evidence to the contrary, given the group has handed out many pamphlets at these intersections without incident.

    It has not been proven what the intent is behind prohibiting the distribution of these pamphlets. That it's due to safety concerns is pure speculation.

    It is quite possible that the officers or their command are using the city ordinance for the specific purpose of suppressing the group's activities as much as possible. and if that is the case then this instantly becomes a free speech issue.
    Last edited by stealthyeliminator; 04-22-2014 at 02:07 PM.
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    Falsely shouting "Fire" in the crowded theater scenario is actually a case of Fraud. By doing so the owner is deprived of the receipts from the ticket sales. Everyone who exits the theater because of the fraudulent claim of "Fire" will want compensation for their loss, i.e. refund or free ticket(s) at a future date.
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    Campaign Veteran MAC702's Avatar
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    Quote Originally Posted by bullseye View Post
    Falsely shouting "Fire" in the crowded theater scenario is actually a case of Fraud. ....
    Especially in older times, it was a far more dangerous issue than that.

    Before fire exits were regulated and planned well, it was extremely likely that major injuries and deaths would occur from a fire panic in a crowded theater. It is still a cause for concern.
    "It's not important how many people I've killed. What's important is how I get along with the people who are still alive" - Jimmy the Tulip

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    What if your wanted to hand out safety related flyers?

    http://postimg.org/image/y5t5e9pl9/

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    Campaign Veteran marshaul's Avatar
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    Quote Originally Posted by davidmcbeth View Post
    What if your wanted to hand out safety related flyers?

    http://postimg.org/image/y5t5e9pl9/
    Most folks involved in government seem to have a marked preference for safety over the Constitution.

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