No Free Speech Here — This Is Bourbon Street

New Orleans Code of Ordinances § 54-419(c)(4) provides,

It shall be prohibited for any person or group of persons to loiter or congregate on Bourbon Street for the purpose of disseminating any social, political or religious message between the hours of sunset and sunrise.

The New Orleans police are apparently prosecuting several street preachers for violating the ordinance. The preachers were apparently using bullhorns, something that might be prohibitable, but this ordinance is not at all limited to amplified sound. They were also apparently “yell[ing] anti-gay slurs,” which might or might not be protected depending on the circumstances — especially whether the slurs were individually targeted and thus fighting words — but again this ordinance is not at all limited to “fighting words.” Rather, it applies to all “social, political or religious message[s].”

I understand the city’s desire to let people party without having their buzz killed, but First Amendment law stands in the way. First, it seems that the prohibition is content-based: It leaves people free to disseminate commercial messages (hand out promotional leaflets, urge people to come into businesses, and so on), but restricts social, political, and religious messages. Such discrimination in a traditional public forum against social, political, and religious speech is unconstitutional, see Metromedia, Inc. v. City of San Diego (1981).

Second, even if the prohibition were content-neutral, the dissemination of messages generally can’t be barred on public sidewalks. It can’t even be barred in airports, where the government as proprietor of a nonpublic forum has much more power than it has as proprietor of a traditional public forum such as a city sidewalks. See Lee v. ISKCON (1992). To be sure, the government can impose content-neutral regulations, such as prohibitions on blocking traffic, limits on noise, and the like. But a total ban such as this — which applies even to solitary picketers, leafleters, or speakers — is unconstitutional.

Thanks to Elliot Scott for the pointer.