By Roger Lanse
At its March 9, 2021 meeting, the Silver City Town Council discussed an offensive flag located on Swan Street near the Opportunity High School.
Town Clerk Ann Mackie read an email addressed to her dated Feb. 25, 2021, which seemed to reflect the mood of council, which stated, "Would you please forward this email to our city councilors, mayor, and City Manager Brown. I would like this public input to be read out loud into the record. I am old school, believing in old city election ordinances. The old city election ordinance stated campaign signs, banners or flags should go up 30 days before the election. All signs of campaigns were to be removed within seven days after the election was held. An ordinance no longer enforceable because our old city attorney stated that removing campaign material might infringe on our first amendment rights. Every day I drive by a 'Fuck Biden' flag, below a self-described confederate flag, and a yard sign for Trump 2020 campaign on the corner of Swan and 33rd Street.
"Can I put up my Biden signs again? Can I put up several hundred Biden signs and be held harmless? What if they were covered with offensive language, too? Doing nothing over offensive language fosters lower community standards, like leaving graffiti on private property until it, too, gets tagged by a rival gang. I would like the city to research this matter of the offensive language flying high across from the school right across Swan Street, I would like a response to my public input. Thank you for your time. (signed) Glenn Griffin."
Assistant Town Manager James Marshall then read the town's written response to Griffin's public input email regarding the flag issue. "I (Marshall) was assigned to address the complaints regarding an offensive flag being flown on Swan and 32nd(?) Street. I did some research regarding the issue of profanity that is displayed in public as well as sign laws that apply. This is not an issue that is isolated to Silver City. Various information is available. In one particular municipality in another state where this particular flag was the questioned issue. The short answer is that other municipalities have determined the flag should be a protected freedom of speech right. I have not found that any municipality forced the removal of offensive language on sign or flag or other display that did not incite harm on any individual or group.
"I have spoken with the town attorney regarding this issue. He agrees that the offensive flag does not meet the criteria that is set by the Supreme Court for enforcement action. While the Supreme Court has established clearly what is allowed on signs, they have not been so clear on establishing criteria for a word or phrase to be determined profane and not protected by the Constitution.
"As we apply the sign ordinance to this issue, we have some other issues that come into question. In the Reed vs Gilbert, Arizona case, the Supreme Court made several determinations. Conscience-based laws targeting speech based on its communicative content, they are presumptively unconstitutional. The town of Silver City's sign code is content-based in some ways and not in some ways. Laws that are content-based depend on the communicative content and this is not constitutional. Laws that are based on the size of the sign with no regard to the contents may be regulated. Government discrimination among viewpoints is a more blatant and egregious form of content discrimination.
"The town of Gilbert, Arizona has ample content-neutral options available to resolve problems with safety and esthetics, including regulating size, building materials, lighting, moving parts, and portability. This case has established some very important guidelines for signs and thus forms of displaying a message can be established to be constitutional or what is unconstitutional. In short, the town is limited to enforcement of signs, flags, or messages that requires one to read the message upon the sign or flag to determine the legality of the object upon which a message is displayed. The town can enforce the ordinance that is based on safety, size, esthetics, building material, moving parts, or portability.
"If the town were to ban the flag in question, we would be required to ban all flags that don't incite harm to others. You can't yell 'Fire' in a crowded movie theater as it may cause harm to others. Yes, the current town of Silver City ordinance does contain sections that would not be determined constitutional as outlined in the Reed case. The town has not been able to enforce the unconstitutional sections of the ordinance since the Reed case was determined. At some point the town may choose to clean up the current sign ordinance to remove the unconstitutional portions and add to or amend areas that are constitutional. While the town is sympathetic to the parties that expressed displeasure with the offensive signs, we find our hands tied, to prevent us from impinging upon the party that is responsible for the first amendment rights.
"I think it's important to say that while we have rights we also have responsibilities that run with those rights. It is a responsibility of living in a civil society to conduct ourselves in a civil manner as to not offend anyone else. This may be by offensive noises, signs, reckless driving, or in numerous other ways that people may act uncivil and disrespectful of others. Numerous parts of our code are just trying to gain stability in our community."
Silver City Police Chief Freddy Portillo, answering a question by Mayor Ken Ladner, stated the same language on signs directed at President Trump during the last general election were also treated as freedom of speech.
Marshall told council the demolition of the old U-Haul business on Silver Heights Blvd. was done without permits and was red-tagged, which caused the demo to stop until a permit could be acquired. Marshall said he assumed a permit had been obtained as a couple of hours ago about half the demo pile was gone.
Marshall also mentioned a house on 12th Street, that although the demolition was done expeditiously, it was accomplished without a permit. There will potentially be enforcement action taken.
Ryan England and Eric Gibson representing Better Cities, a consulting firm out of Ogden, Utah, hired by the town in 2020 to prepare a recreation master plan, presented what they have accomplished in the last four months. England told council that $8 million is available with more to come for construction of a new Rec Center for the town. Town Manager Alex Brown told the Beat that the $8 million includes $4 million from the state last year for construction, $475,000 from the state last year for design, and $4 million from the town. The "more to come" refers to an expectation of additional funds from the state legislature, Brown said.
England's and Gibson's work so far has centered around gathering information from residents and town leaders to determine what the community would like to see in the new facility and where it should be placed. More than 500 people were contacted both directly and on-line. England also said the $8 million will not get everything desired so priorities will have to be set.
Brown said Western New Mexico University has suggested a partnership, placing the new Rec Center on WNMU property, and the university would help with financing and maintenance. Brown cautioned that the town would have to abide with the university's rules.
Councilors expressed concern with locating the new Rec Center on WNMU property. District 2 Councilor Lynda Aiman-Smith wanted to make sure middle, high, and at-risk students had access to the new facility, while District 4 Councilor Guadalupe Cano needed assurance the building and grounds would be handicapped accessible. District 3 Councilor Jose Ray Jr. wanted to see more regular people on the steering committee and "not so many in politics."
This steering committee was formed to arrange information received from residents and leaders in an organized and prioritized format, Brown told the Beat. Ray was concerned that many of the people on that committee were also the ones who would be making the final decisions.