At issue is the enforcement of the Town of Campbell’s ordinance, 9.12, which prohibits the display of signs and flags on, or within 100 feet, of the only pedestrian overpass managed by the Town of Campbell. The Town enacted the ordinance on October 8, 2013 in response to some angry calls about the “Impeach Obama” expression on the t-shirts and the resulting media attention.The lawsuit was filed in the U.S. District Court for the Western District of Wisconsin on behalf of La Crosse residents Gregory Luce and Nicholas Newman against the Town of Campbell, its police chief, and one of his officers. Luce and Newman were participating in a nationwide movement called “Overpasses for America.”
Erin Mersino, a TMLC attorney and frequent guest on Faith on Trail, who is handling the case, said, “Viewpoint discrimination is one of the most harmful threats to our freedom of speech. The answer to contempt of a certain viewpoint is not to silence that viewpoint, but to invite more speech and create a discourse. That is one of the most fundamental tenets of our Republic. The ordinance at issue turns the public sidewalk on the overpass, which is otherwise open to the public into a dead speech zone.”The lawsuit claims that the Plaintiffs’ constitutional rights to freedom of speech and peaceful assembly have been violated and that the Ordinance is unconstitutional on its face and as applied by the police. Because the Plaintiffs wish to continue their constitutionally protected speech, they asked the Court to enter a Preliminary Injunction banning further enforcement of the ordinance during the pendency of the lawsuit.
Gregory Luce is a Catholic who is pro-life and opposes President Obama for many reasons including the President’s actions in support of abortion. On October 24, 2013, Luce along with a few of his supporters appeared on the pedestrian overpass wearing t-shirts that collectively spelled out “IMPEACH” on one side and “OBAMA” on the backside. A Town of Campbell police officer confronted Luce and his supporters and ordered them to leave or receive citations. Luce and his supporters left as ordered. This police action also thwarted a similarly planned demonstration by Luce on public land 100 feet from the overpass in question, which was also prohibited by the challenged ordinance.Plaintiff Nicholas Newman is a patriotic American. On October 27, 2013, Newman appeared on the overpass in question carrying an American Flag to express his pride for his country and the ideals on which it was founded. Police issued Newman a citation for displaying the American Flag in violation of the ordinance, which carries a fine of $139.00.
The pedestrian overpass consists of only a sidewalk with a fence on either side. Sidewalks are considered by the courts as traditional public forums.Richard Thompson, President and Chief Counsel of the Thomas More Law Center, commented, “The Supreme Court has repeatedly stated that a bedrock principle of the First Amendment is that government cannot ban the expression of ideas just because some find it offensive. In fact, the Supreme Court has allowed the burning of the American Flag on the grounds that it is matter of free expression. So I’m astonished that the Town of Campbell and the police department think it can ban a citizen from displaying the American Flag.”