Gallery Night’s First Amendment Showdown

October 16, 2012

It is uncertain if Food Not Bombs will have a presence at the upcoming Gallery Night. If it does, it’s uncertain how the evening will unfold.

“Ultimately, we don’t want to arrest anyone,” said Pensacola Police Chief Chip Simmons. “If there’s even a violation there, let me be clear.”

Along with Gallery Night vendors, Food Not Bombs has been setting up camp on Palafox Street. The local chapter of the international organization spreads out its pamphlets and literature—covering issues such as civil rights, poverty and protest movements—on a table in front of the downtown post office.

In early September, Food Not Bombs’ Gallery Night participation was discussed during a meeting of the Downtown Improvement Board. DIB officials wondered if they could disallow the group from setting up its informational table during the events. Outgoing Executive Director Kim Kimbrough said having the group removed would be a “PR nightmare.”

Police were called during the last Gallery Night, but no actions were taken.

“We looked into it at the time and decided we would not take action,” Simmons said.

Since that time, the chief met with Food Not Bombs’ Michael Kimberl in an effort to discuss the issue.

“A lot of times, if we feel there’s possibly a conflict,” he said. “We do our best to mediate the conflict.”

Kimberl said he was left “a bit confused” following the meeting with Simmons, another police officer and the department’s attorney.

“They basically told me they had received a lot of heat for not arresting me and other Food Not Bombs members,” he said, describing the conversation as cordial. “He even introduced me to Sgt. Martin and told me he would likely be the arresting officer—we politely shook hands.”

Simmons said that he did not tell Kimberl that anyone would be arrested if Food Not Bombs set up at Gallery Night. He said it was “too early” to determine what would happen.

“There’s a very real chance that they could be there and we do nothing,” Simmons said.

Kimberl said that the chief had since spoken with him and further clarified that an arrest was not a definite—“but he saw how we could have taken that conversation the wrong way.”

Following the police’s meeting with Food Not Bombs, attorney Alistair McKenzie was approached to represent the organization. The attorney—who is presently representing Pensacola City Councilwoman Sherri Myers in her lawsuit against Mayor Ashton Hayward, as well as Occupy Pensacola in its suit against the city—sent a letter to Simmons stressing the organization’s First Amendment rights.

“Only because Food Not Bombs is a political organization distributing political literature has the DIB attempted to have them arrested,” McKenzie wrote to Simmons. “This is in direct contravention to the First Amendment rights of citizens at a public forum as set forth in the cases I have brought to your and the DIB’s attention via this email.”

Simmons said that the matter was still being reviewed.

“This is what we’re hashing out, this is what we’re discussing,” he said.

The chief said that free speech was allowed on city sidewalks— “my understanding is, if they are on the sidewalk they do not have to have a permit”—but that the Food Not Bombs table presented a problem.

“We have no intention of keeping somebody from exercising their freedom of speech,” Simmons said. “The issue is the table.”

Kimberl said that the DIB had previously requested that the group get rid of the table. He said Food Not Bombs preferred the stationary table, instead of approaching people as they walked the sidewalk.

“We tried to explain to them that doing that is more obtrusive,” Kimberl said. “Only people who are interested approach us, as opposed to us approaching them.”

Kimberl said he didn’t yet know if Food Not Bombs would be on Palafox for this week’s Gallery Night. The chief said he didn’t know what action police might take—if any—if the group did set up at the event.

“I’m not prepared to say we’re going to do this if this happens, because that’s not the case,” Simmons said. “I’m still trying to do my best to mediate it, see if there’s some middle ground here.”

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