          TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



                                           NO. 03-03-00235-CV




     Democracy Coalition, Stefan Wray, Risako Kurono, Matthew Korn, Kristan Barber,
          Chandra Ward, Kristin Richardson, Lucinda Beringer, Sonia Santana,
              Douglas Foxvog, Ann Stark, and Susana Almanza, Appellants

                                                      v.

                                      The City of Austin, Appellee


         FROM THE DISTRICT COURT OF TRAVIS COUNTY, 345TH JUDICIAL DISTRICT
           NO. GN101586, HONORABLE MARGARET A. COOPER, JUDGE PRESIDING




                                     --------------------
                                      CONCURRING OPINION
                                     --------------------


                 I join Justice Smith=s opinion but write separately to emphasize that our holding regarding

appellants= state constitutional claim for declaratory relief should not be viewed as categorically precluding

law enforcement officials from undertaking reasonable means of crowd control at protests. Stated another

way, our holding is not that the City of Austin and its police officers conclusively violated appellants=

constitutional rights, but that the City=s lawyers did not adduce evidence at trial that conclusively foreclosed
the appellants= state constitutional claim as a matter of law, as is required to sustain the directed verdict in

this case. The merits of that claim thus remains to be determined by the trial jury.

                 To summarize the evidentiary record before us, viewed in the light most favorable to

appellants, as is required when reviewing a directed verdict:1 A group of protestors was singled out and

their movement restricted based on the views they espoused; demonstrators who espoused an opposing

view, as well as individuals unconnected to the debate, were permitted to enter a more favorable area for

protesting; and individual members of the disfavored group were permitted to remain in the more favorable

protest area so long as they did not advocate their views. Standing alone, such actions are evidence of

viewpoint-based discrimination prohibited by the first amendment.2 See Members of City Council v.


          1
                 E.g., Szczepanik v. First S. Trust Co., 883 S.W.2d 648, 649 (Tex. 1994).
          2
                 I agree with Justice Smith that we must assume the Texas free speech clause is coextensive
with the first amendment for purposes of this case, as appellants have advanced no reason to think
otherwise. See Operation Rescue v. Planned Parenthood, Inc., 975 S.W.2d 546, 559 (Tex. 1998)(AIt is
possible that Article I, Section 8 may be more protective of speech in some instances than the First
Amendment, but if it is, it must be because of the text, history, and purpose of the provision, not just simply
because.@) (emphasis in original); Texas Dept. of Transp. v. Barber, 111 S.W.3d 86, 106 (Tex. 2003)
(After deciding case based on Unites States Constitution, court stated, AHere, Barber has not articulated




                                                       2
Taxpayers for Vincent, 466 U.S. 789, 804 (1984) (A[t]he First Amendment forbids the government to

regulate speech in ways that favor some viewpoints or ideas at the expense of others.@); see also Turner

Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642 (1994) (under first amendment, government cannot

Asuppress, disadvantage, or impose differential burdens upon speech because of its content.@).




any reasons based on the text, history, and purpose of Article I, section 8 to show that its protection of
noncommercial speech is broader than that provided by the First Amendment under the circumstances
presented.@).




                                                    3
                 On a different record, at least some of these sorts of restrictions conceivably could have

been justified as a matter of law under the first amendment. Reasonable time, place, and manner restrictions

may be imposed on expressive activity, Clark v. Cmty. For Creative Non-Violence, 468 U.S. 288, 293

(1984), and some facially content-based restrictions of expression may be deemed content-neutral (and

thus subject to less exacting constitutional scrutiny) when motivated by a permissible content-neutral

purpose. See Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989) (A[a] regulation that serves

purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some

speakers or messages but not others@). Furthermore, even content-based restrictions on expression may be

justified when shown to have been precisely drawn to serve a compelling state interest. See R.A.V. v. City

of St. Paul, 505 U.S. 377, 382 (1992); Consol. Edison Co. of N.Y., Inc. v. Pub. Serv. Comm=n, 447

U.S. 530, 540 (1980).             But that is not the record before us. The City vaguely referenced a

professed interest in protecting the security of President Bush, but did not fully develop that theory.3 It

likewise did little to develop other potential justifications, such as those related to public safety and order.

Accordingly, I agree with Justice Smith that we should reverse the directed verdict on appellants= suit for

declaratory relief on their state constitutional claim.

                 I also echo Justice Smith=s observations regarding the nature of our constitutional inquiry.

Slip op. at 25. Our duty to apply constitutional principles often arises amid raging political debate, yet our


        3
           Nor did the City fully develop whether or how it or its police officers were merely following the
directives of Secret Service, or the validity of such a justification.




                                                          4
outcomes Acannot be determined by the subject matter of the dispute, nor can the personal sympathies of

judges to one side or the other affect their duty to draw lines.@ Id. (quoting Operation Rescue-Nat=l v.

Planned Parenthood of Houston & Southeast Tex., Inc., 975 S.W.2d 546, 555-56 (Tex. 1998)). Our

constitution, after all, is intended to embody timeless foundational principles of our body politic; its meaning

does not change with each fleeting controversy of the day. In the next case, moreover, the Asides@ may well

be reversed.

                 Accordingly, I respectfully concur in the opinion and judgment.




                                                   Bob Pemberton, Justice

Before Justices B. A. Smith, Patterson and Pemberton

Filed: July 15, 2004




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