Protesters gathered outside a recent Tempe City Council meeting and dozens spoke inside to try to stop an ordinance they call a violation of free speech and assembly. But, the council approved the measure unanimously anyway.
It all has to do with changes to special events permits — and it all goes back to an ongoing controversy over events to feed the homeless in Tempe city parks.
Taylor Seely, a First Amendment reporting fellow at the Arizona Republic, joined The Show to discuss.
Full conversation
LAUREN GILGER: Begin for us, Taylor, with just a little bit about what this ordinance actually says. What's in it.
TAYLOR SEELY: So this is an ordinance that Tempe has passed to basically better create a permitting system for any public events that happen on city property. So thinking about the public parks here and what it says is that any events, any public events with more than 30 people need to go through the government to apply for a permit and await government approval. It also creates provisions where it says events that may have adverse impacts require certain city resources such as police officers or traffic staff, events like that are going to need government permission before they can move forward.
GILGER: OK. So that sounds relatively innocuous and probably similar to what many other cities have on the books, but this has become very controversial in Tempe. Dozens of people speaking out against it. There was a protest before the City Council voted on this amendment. Tell us why. What are the concerns?
SEELY: Sure, so you're right that this is not abnormal for cities to have permitting processes for events on public property. The controversy here really began a while back when groups in Tempe called mutual aid groups were starting to feed homeless individuals in parks, and they had frankly done this for about five years. It began around 2020.
One of the advocates who did it, Austin Davis, actually was rewarded by the city, you know, named something like Neighborhood Event of the Year for these free picnics for the homeless individuals.
But eventually what you started to see was that large crowds of homeless individuals were upsetting nearby neighbors. The neighbors were claiming that the homeless individuals were littering, that they were leaving behind drug needles or tin foils, and some even say that they were leaving behind human waste. You know, residents that I spoke to were incredibly upset, saying that they were regularly cleaning out waste or drug paraphernalia in their front yards or their back alleys.
And so you see the city start to clamp down and say, “Hey, your events are getting big. You're gonna need a permit for that.” And the advocates said, “Wait a second here. We've been doing this for years. You used to reward us for doing this. Why all of a sudden the change in enforcement?” And what the city says is, “Well, technically, you've always needed a permit, but we kind of let it slide, but now they're getting so big, we really need to crack down on it.” That's where the controversy began.
GILGER: And it's gotten so much more controversial since then, and I'll have you give us a little bit more of that history because there have been lawsuits related to this controversy about the homeless events in particular isn't technically mentioned in this ordinance, but folks definitely say that's what it's aimed at.
SEELY: Correct, because what you saw was essentially the residents saying, wait a second, why would you one day say that we're not subjected to this ordinance, and then the next day say we are. And so the residents actually got together and sued the city in court saying that this was a violation of their First Amendment rights. They're saying that their picnics are actually Freedom of Assembly, their Freedom of Speech, it's their advocacy and they're actually protesting the city's inadequate response to homelessness is what they say.
So technically before that lawsuit the city though did begin revising their ordinance and that's what you saw on July 1. The City Council passed a new revised set of rules that clarifies that this is any event above 30 people and again events with adverse impacts or that require city resources. So trying to sort of clarify that we're not targeting you. This is really everyone. It's about the effects. It's not about the substance of what you're doing, but rather the effect it has on the community, right?
GILGER: So I asked you about what the folks who are upset about this had to say. What about the people on the other side? Like this was a unanimous vote for this ordinance from the City Council. What did council members, what do other people have to say about this on the other side of it?
SEELY: You know, people who are supportive of the permit point to what the city is saying, which is that it's, we're not directly targeting events on homeless people, we're targeting the effects that it has on a community. You know, it's interesting, some residents think that perhaps the advocates have some constitutional rights here to advocacy, to charitable giving. But other residents say, hold up, that those rights stop when they start to infringe on my safety and security.
So you have a real debate here over, you know, whose rights prevail when free expression and charity is pitted against public safety concerns, and I think you see the council say, “well, we need to balance everyone's interests,” and I think they don't believe that these permits will stop the picnics from happening, although the city staff, you know, has been very careful to say, you know, this would probably qualify under a lower impact permit under the revised rules. You probably pay around $25 to go ahead with these events, but they really can't say officially until they get that application in.
And some of the picnic organizers have in the past said, “Well, historically you've required us to get really expensive insurance for every event that we have, and that makes it such a costly burden for us that it is going to shut us down.” So it's going to be interesting to see how it actually plays out, right?
GILGER: So there are some sort of First Amendment concerns that are being brought up here. This is becoming a First Amendment conversation.
SEELY: Absolutely. And like the First Amendment scholars that I spoke with, they all acknowledge modest permits are normal, even for protesting. I think that's something that often people don't realize. A lot of protests have to get permits before they can move forward. But when your protest isn't clear, pure speech, and it's sort of that gray area where you know you're feeding the homeless, or is that a message? Is that not? What is your message? That's when it becomes more expressive conduct.
And so the city's ability to say, well, we want to regulate this because the conduct is having an effect, they get more flexibility in that area. So again, it'll be interesting to see how that court case plays out. How will the judge view feeding the homeless? Pure speech, more in line with pure speech, or more in line with conduct that is subject to regulations?
GILGER: All right, so a lot still up in the air to watch for.
