Local unions made some noise about free speech regulations at this week’s City Council meeting.
The council was scheduled to discuss the broad enforcement of Santa Monica’s noise ordinances in commercial zones, but the debate quickly focused on an ongoing and specific protest outside a hotel on Ocean Avenue.
The First Amendment guarantees some rights pertaining to public speech but municipalities also have the ability to regulate speech in some circumstances, including the enforcement of noise ordinances.
Current rules use a subjective standard for determining a noise violation. When responding to a complaint, officers are evaluating if the action unreasonably disturbs the peace, quiet and comfort of people of normal sensitivity and if the noise is so harsh or prolonged or unnatural or unusual in its use, time or place as to cause physical discomfort.
The standard is enforced throughout the city’s commercial districts and is commonly used in relation to street performers on Third Street Promenade and Santa Monica Pier. However, it applies to all kinds of noise, including
protests. Staff said any rules must apply to all noise, regardless of content.
“A person on the Promenade playing drums or a person proselytizing using a bullhorn are the same in the eyes of the law,” said Salvador Valles, assistant director of planning and community development. “For example, city-issued performance permits are entirely content-neutral. Noise regulations must be adopted without regard to content, as such the removal of any existing limitations on noise must also be content neutral.”
As agendized, the discussion was described as a follow-up to a 2015 review of the city’s noise ordinance. However, the April 12 discussion quickly centered on a dispute between Unite Here Local 11 and the Shore Hotel.
The union has been protesting the non- union hotel for months. The union has accused hotel owners of abusing employees and creating a hostile work environment, allegations hotel ownership has steadfastly denied.
The hotel has filed several complaints over the protest and in one incident protesters were briefly handcuffed and detained but not arrested. In that case, staff said police actions were prompted by protester conduct, not noise levels.
In a letter to the council, the union asked for the City’s noise rules to be amended to read “Any non-commercial, constitutionally protected speech conducted in an area in which commercial activity is an allowable use.”
That language would remove prohibitions on protests based on their noise level and restrict the ability of law enforcement or code compliance officers to disrupt or regulate a protest in a commercial area.
Staff recommended against changing the rules and said the flexibility of the current ordinance provides a balance between protecting free speech and ensuring the rights of others in a public setting.
Councilman Kevin McKeown said the current system puts law enforcement in a difficult position.
“It also creates a lack of predictability for both those that are demonstrating on behalf of a labor dispute and the business that is the target of a labor dispute,” he said. “I think it would be important for us in protecting free speech to be as predictable as possible so people know what to expect. I don’t agree with the staff recommendation, I’ve been very vocal about that and I’ve told staff that I’d prefer we say that any noncommercial free speech activity in a commercial zone that doesn’t impact a residence or hospital or school would be assumed to be a legal activity.”
McKeown ultimately made a motion directing staff to return with new language that assumes noise to be legal, regardless of its intensity, if it is: noncommercial free speech in a commercial zone not already covered by specific laws like the promenade and pier, not disturbing a residence, hospital or school and occurring between the hours of 7 a.m. and 10 p.m.
Councilwoman Gleam Davis supported the motion, saying it was in keeping with Santa Monica’s longstanding commitment to progressive ideals.
“There is no way that by promoting free speech we can guarantee everyone comfort,” she said. “The fact of the matter is protest is, by its nature, supposed to be discomforting.”
She said the council and community needed to accept the discomfort caused by protest as part of the nation’s historic commitment to the First Amendment.
Councilman Ted Winterer also cited larger concerns when supporting McKeown’s motion.
“We heard a lot about a specific labor dispute tonight, but, to me, I want to put this in the broader context,” he said. “We want to make sure that people can protest in the interest of civil rights, we have a history in this country of anti war protests, and I acknowledge that along with allowing those kinds of activities that we might be predisposed to support politically you run the risk of having some activities that you don’t like but again that’s both the strength and peril of the First Amendment.”
Councilwoman Pam O’Connor was the lone “no” vote on the request (Councilman Terry O’Day was absent). She said the exist- ing laws clearly allow protests and despite discussion of broader concerns, all that was being discussed that night was how loud a protest could be. In this case, she accused the council of working under orders from the union.
“I think in spite of all the words that have been said, I think this council frankly has an ongoing commitment to do what H-E-R-E Local 11 says do, says jump,” she said. “I’ve seen the pattern. This is what this is about. You can spin it all you want about the broad ability to protest, but that is allowed now. Nothing prohibits that.”
Council voted 5-1 to have staff return for a future discussion of the proposed changes.