A popular online columnist who writes about the Pensacola Ice Pilots is charging that the City of Pensacola has violated his civil rights in the First Amendment areas of freedom of speech and freedom of the press by denying him the right to distribute a Pilots game-day program on public sidewalks.
Scott Gregory is planning to distribute "The Five Hole" -- an independent news, opinion and features publication about the Pensacola Ice Pilots, the East Coast Hockey League and the game of hockey -- outside of the Pensacola Civic Center prior to Pilots home games. He has been writing "The Pilots Seat," a weekly online commentary about the team, since December and has gained an extensive following among fans.
The Supreme Court of the United States has long held that city sidewalks are considered a public forum for citizens to express spoken or written views.
"Barring significant threats to human health and safety, no American is to be prevented from expressing his or her views on public sidewalks in an orderly fashion," Gregory said. "Our plans are unquestionably safe and limited in scope. The City of Pensacola apparently feels it is above the authority of the Bill of Rights.
"The city is saying that no citizen can express his or her written views on public sidewalks, period. That fact that the city sees fit to censor one citizen's opinions should chill each and every American to the bone. I can't believe that, less than four months away from the year 2000, the city is saying no to an issue that our forefathers thought so vital more than 200 years ago, and the Supreme Court has upheld time and time again throughout this century."
Three months ago, Gregory outlined his plans to the city to ensure he was operating within the law. After the city's denial two months ago, Gregory appealed to the city to reconsider its position after presenting officials with extensive Supreme Court information supporting his position that the First Amendment gives him the authority to proceed with his plans.
Although assistant city manager Al Coby told Gregory city staff met Aug. 31 and that Gregory would have an answer last week, no response was given. Gregory asked the city if the First Amendment gives him the authority to proceed with his plans as outlined without fear of being arrested, ticketed or harassed. If not, Gregory asked which ordinances would apply, and what the city is asking he do so his plans may proceed.
The city initially denied Gregory's request under a ordinance that prohibits business from being conducted in the city right-of-way.
"This is not a business issue -- it's a free speech issue," Gregory said. "The city is trying to play a shell game with me. The city might have the right to prevent me from selling melons on city sidewalks, but it cannot prevent me from distributing a news and opinion publication in the manner I have discussed. The latter is unquestionably protected by the First Amendment."
Gregory emphasized he went out of his way to make his request reasonable, including self-imposed promises not to distribute in the streets nor obstruct sidewalks. He also limited distribution to the hour before each home game, and promised to have no more than four vendors.
The courts have held that municipalities cannot enact broad bans against the distribution of news and opinion, and regulation of any sort must be made with legitimate and substantial public health and safety issues in mind, and reasonable alternatives must be given.
"While the First Amendment gives me the authority to enact my plan without permission from the city, I certainly don't want to be thrown in jail for expressing my rights to free speech and freedom of the press," Gregory said. "That's why I've been working to get the city to do the right thing and clear this matter up. I've tried for three months now. But the city isn't interested in working with me. It is clear that city staff members have not acted in good faith from the start. They haven't even given me as much as a meeting despite my repeated requests."
Gregory is hoping the Pensacola City Council will intervene on his behalf. He also is consulting with attorneys and the American Civil Liberties Union about the matter: "The city is violating my civil rights. What choice do I have left?"
Gregory said that, given the time-sensitive nature of his publication and the hockey team's lease with Escambia County, the public sidewalks are the only realistic place he can reach his audience with his speech. The Pensacola Ice Pilots, as renters of the Civic Center for the events, have the authority to decide what may be sold and distributed within the building.
"The Five Hole" is a hockey term that refers to the open space between a goalie's pads that scorers attempt to shoot the puck through.
Gregory, 31, is the publisher of Bookhome Publishing, a book and Internet publishing company in Navarre. He is a former sports editor for Copley Newspapers, and he has written about 1,000 news and feature articles for Chicago Tribune. He has won first-place Associated Press awards for feature writing and investigative reporting.
On June 9, Gregory spoke with Donna Harris, special events coordinator for the city, about his plan. She encouraged him to follow up with a letter, which was mailed days later.
On July 9, Gregory received a phone call from Harris, who stated she had met with Chief of Police Jerry Potts, Jennifer Fleming from the community redevelopment department, Leo Doidge from planning and a representative from inspections. Gregory spoke with Harris and Potts -- and William Muldoon from Treasury later that day -- and all stated the request was denied under a single city ordinance, Section 11-4-2, which states: "No person shall use any portion of the streets or sidewalks of the city for the location or operation of any private business unless such person obtains a permit or franchise for the use of such streets or sidewalks from the council."
In sum of the discussions with Harris, Potts and Muldoon, Gregory said the consensus seemed to be that the request was reasonable, but they didn't want to grant it because, as Potts said, "it would open a whole can of worms." Potts said he was concerned about other sorts of vending taking place if the request were granted.
The First Amendment states: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press." The Fourteenth Amendment makes this applicable to the states.
A publication is categorized by the U.S. Supreme Court as pure speech, and is protected as such. Gregory says his request to distribute information cannot be viewed in the same light as that of all other traditional business activities, as the Bill of Rights and U.S. Supreme Court state otherwise. This makes Section 11-4-2 inapplicable to his situation, as it deals only with business issues and not speech/press issues.
