FOR IMMEDIATE RELEASE
February 25, 2021
Contacts:
ORD2 Indivisible Steering Committee
contact@ORD2Indivisible.org
Sarah Alvarez, CLDC Staff Attorney
(541) 687-9180 or info@cldc.org
CLDC Client Prosecuted for First Amendment-Protected Chalking Outside of Representative’s Office
Medford, OR — Over the past two years, the City of Medford spent inordinate public resources and time to prosecute local political activist and mother, Teresa Safay, after she and other Indivisible activists used water-soluble chalk on a public sidewalk in front of the public, tax-funded office of their elected U.S. Representative. Despite the widespread First Amendment-protected use of chalk as a form of expression by children, activists, artists, and the community at large, the City chose to prosecute Ms. Safay in a fashion that can only be interpreted as an attempt to silence her political message. Despite the facts and law on her side, and the City’s witnesses changing testimony throughout the legal proceeding, the Court upheld the prosecution as constitutional.
On October 9, 2019, Ms. Safay chalked the sidewalk in front of former Republican U.S. Representative for the 2nd congressional district Greg Walden’s office with messages encouraging him to support the effort to impeach then-President Donald Trump. Ms. Safay and other activists’ message came at a time former President Trump had recently declared that he would refuse to participate in the (first) House impeachment inquiry and House subpoenas.[1]
The President’s flouting of the law, and Rep. Walden’s silence, spurred Ms. Safay and other activists to action. “Mr. Walden represents the people of Oregon, and we wanted him to know that his tacit approval of an authoritarian president was not acceptable to our community. We chose to exercise our First Amendment rights in a playful but noticeable way, with washable spray chalk. We hoped that Mr. Walden would take notice and act on behalf of his constituents, including me,” Ms. Safay said in a statement. Instead, the City decided to employ a strategy intended to chill Ms. Safay and other activists’ speech.
Ms. Safay’s case was prosecuted under a civil infraction meant to punish graffiti, after the building owner, the law firm Hornecker Cowling, claimed it took over seven hours to clean the chalk. Both of the prosecutors on the case formerly worked for Hornecker Cowling,[2] and the City’s star witness and partner at the firm, James Wallan, is the husband of a Republican state representative. Ms. Safay recognized she was being bullied for her speech, so she stood up and fought her case without an attorney in Medford Municipal Court. After being convicted in that court, she appealed her case to Jackson County Circuit Court.
CLDC represented Ms. Safay in the Circuit Court appeal pro bono, because no political activist should be punished for exercising their constitutional right to dissent. Ultimately, Judge Lorenzo Mejia convicted Ms. Safay of the infraction and imposed $494.03 in restitution in February 2021. The City found the money to pursue this case relentlessly while the community suffered intense financial stress from summer wildfires, the COVID-19 pandemic, and City layoffs within “the planning department, fire department, parks and recreation, human resources, and information technology.”[3]
“Pursuing a violation against Ms. Safay for using chalk on a public sidewalk is outrageous,” said Sarah Alvarez, CLDC Staff Attorney, who represented Ms. Safay. “The cost of this litigation for the City was probably much more than the fine the City recovered. Even the police agreed that the material Ms. Safay used was chalk-like or chalk paint. Cases like Ms. Safay’s are important to highlight because prosecutions like this attempt to suppress political speech; they make people afraid they could be criminalized for speaking their mind or broadcasting an unpopular opinion. That is not the equal and just democracy we fight for.”
Despite the City’s wasteful and intimidating efforts to criminalize Ms. Safay’s speech, future activists will not be deterred by these kinds of tactics. CLDC will continue to fight to support the First Amendment and the right to express dissent, regardless of State repression tactics.
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Civil Liberties Defense Center supports movements that seek to dismantle the political and economic structures at the root of social inequality and environmental destruction.