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For the past month, San Clemente City Council members have been struggling to establish new special permit rules for large gatherings that will affect people’s ability to protest and publicly get together in large groups. 

So far, they haven’t decided on an answer, but they need to find one soon according to city staff who say the current rules around the issue are unenforceable. 

But it also comes as various residents and the American Civil Liberties Union have raised concerns that the proposed rules would restrict constitutionally protected speech. 

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The city’s current special events permit rules don’t currently define what events are covered by the policy according to the city attorney, who suspended the permitting process altogether years ago over the controversy. 

“There’s been a lot of conversation and frankly a lot of friction over the course of my tenure here about what this includes and what it excludes,” said city attorney Scott Smith at the council’s meeting Tuesday night. “This is…unconstitutionally vague, I can’t figure it out and I’ve tried since 2019.” 

Those rules can apply to events such as block parties or any event that would require a street closure, but most of the discussion from the council has centered on people’s ability to protest. 

The council discussions come after a year of large protests in San Clemente, including fights over a fence put up along the beach during the early days of the COVID-19 pandemic and police reform protests following the death of Kurt Reinhold, a homeless black man, in a jaywalking stop with OC Sheriff’s homeless outreach deputies in the city. 

[Read: Orange County Sheriff Threatens To Pull Patrols Out Of San Clemente]

Mayor Kathy Ward, the council’s chief proponent of the new rules, says they’re not intended to restrict anyone’s freedom of speech, but to ensure everyone has equal access to public utilities like parks and the sidewalk. 

“You have to weigh the uses of everyone wanting to use that spot, and because of COVID we’re kind of getting some things that are getting lax. It’s our public space, someone who’s going to use a public park should kind of say who they are,” Ward said in the council’s discussion of the issue on August 17. “A permit lets every staff member, police, fire, all of our staff know that something is happening there.”

But during that August meeting, the council voted 3-2 to approve new permit rules that required each applicant fill out a detailed checklist including a parking plan, offered medical supplies or first aid stations, the contact information for all organizers and trash disposal plan.  

They also have to provide proof of a $1 million liability policy to qualify for the permit according to the ordinance, which City Manager Erik Sund said cost around $200 for a day through the city. 

All that paperwork would need to be filed at least 48 hours in advance, a timespan some free speech advocates called unrealistic due to the city council’s ability to agendize an item the Friday before their Tuesday meeting, leaving just two days where city hall is open to file the permit. 

If the city decided protesters violated the limits of their permit after they marched, they could be banned from organizing in the city for three years.

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At their meeting on Tuesday night, public commenters came out in force against the proposed policy alongside the American Civil Liberties Union, who sent a letter to the city outlining their concerns. 

“The city’s proposed ordinance … would violate the First Amendment and expose the City to significant risk of litigation if adopted,” wrote Sari Zureiqat, a First Amendment Legal Fellow with the ACLU’s Southern California branch. “The City Council should decline to adopt it or at least delay the vote for further discussion, review, and amendment.” 

Those comments led to a lengthy discussion between the council, with arguments from council members Steve Knoblock and Laura Ferguson that the policy should be left the way it is to ensure freedom of speech despite the law enforcement costs the city incurred over the summer responding to those protests. 

“Just because we have that ability doesn’t mean we should,” Knoblock said. “What happens if they don’t do it? They’re subject to fines, arrest, and imprisonment? Come on! Are we in favor of liberty or not?”

Councilman Chris Duncan, who originally voted for the new permit requirement, was the first to change his vote on Tuesday, saying he still supported his original idea of keeping parks and sidewalks open for protestors while restricting all other access points.  

“When we’re trying to balance these issues, it’s an extraordinary cost for the city,” Duncan said. 

Duncan asked staff to return with a new program that would ask protestors to file notice with the city they were coming to protest, but not require the city approve their protest, and ultimately moved to delay the vote on the issue. 

The item is set to come back at the council’s next meeting on September 28 with the proposed modifications for a third vote. 

Noah Biesiada is a Voice of OC Reporting Fellow. Contact him at nbiesiada@voiceofoc.org or on Twitter @NBiesiada.

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