SDPD Is Punishing Speech Using a 102-Year-Old City Law
Since 2013, SDPD officers have issued 83 tickets for seditious language. One man says he was cited for singing rap lyrics; another was ticketed inside his own home.
On the morning of July 15, 2019, Jawanza Watson and a coworker were walking to the coworker’s car after finishing their shifts at Firehouse Bar in Pacific Beach. It was close to 2 a.m.
“I was drunk, you know. I was having a good time. I know that I was feeling myself,” Watson, who now lives in Minneapolis, told VOSD. “And I was rapping a song, but it had cursing in it.”
Watson remembers a police car rolling up slowly beside him and his coworker, windows down. An officer got out and stopped Watson, he said, claiming that the lyrics he’d been singing had been directed at the police.
The officer had apparently told Watson through the police car window to stop singing, but Watson said he didn’t hear the order. The coworker, Keylan Chapman, backed up Watson’s version of events.
The officer wound up giving Watson a ticket for violating section 56.30 of the city code, which reads: “(It) is declared to be unlawful for any person within the said City of San Diego to utter or use within the hearing of one or more persons any seditious language, words or epithets.”
If it sounds old, that’s because it was introduced in 1918.
Local codes are often full of odd relics. For example, a section in the Kentucky Constitution requires all public officials swear they have never participated in a duel. They often go unnoticed or unenforced, the subjects of listicles or sitcom jokes.
San Diego police, however, have been enforcing this one.
Since 2013, as far back as the city would provide records, San Diego Police Department officers have issued 83 tickets to people they accused of using seditious language. The most recent was written in May.
Seditious language is generally defined as speech that aims to overthrow the government.
Yet the U.S. Supreme Court has ruled that seditious language can only be regulated if authorities can prove that it’s used as part of an imminent crime against the government. Legal experts questioned the constitutionality of the charge and one wondered whether police weren’t simply writing tickets against people who mouthed off.
The crime data released by the city in response to a Public Records Act request by VOSD did not include the names of defendants or the officers who issued the tickets. But basic information about some of the most recent seditious language cases are accessible at the San Diego County Superior Courthouse.
Those records show that eight of 11 people cited for using seditious language since 2018 were, like Watson, Black.
An SDPD spokesman declined to comment.
‘The Language Seems to Be Highly Unconstitutional’
Lawyers have yet to grapple with the First Amendment ramifications of section 56.30 of the San Diego municipal code, however, because most have never seen the tickets.
Officers are writing the violations as infractions, downgrading them from criminal misdemeanors. This puts seditious language tickets on par with a speeding ticket and removes both the city attorney’s office and the public defender’s office from the judicial process.
“If we did see this kind of charge come across our desk, it would kind of raise our eyebrows,” said Michael Ruiz, who supervises the San Diego County public defender’s misdemeanors unit. “Because, looking at the charge itself, the language seems to be highly unconstitutional.”
Hilary Nemchik, a spokeswoman for the San Diego city attorney’s office, which prosecutes misdemeanors, said her office hadn’t been aware police were enforcing a section of the municipal code prohibiting seditious language. She called it “antiquated” and said deputy city attorneys would not prosecute anyone for it.
After an officer writes a ticket, the defendant can either pay it or fight it before a judge, commissioner or other administrative official.
In most of the 11 cases VOSD reviewed in the court files, however, defendants failed to show up to their hearing. They therefore received an additional $300 fine. Typically, if the debt goes unpaid, the court turns it over a collections agency.
Are People Fomenting Revolution or Just Offending Cops?
While 83 San Diegans since 2013 may have been actively plotting to overthrow city government, said David Loy, the legal director at the ACLU of San Diego and Imperial Counties, it’s more likely police officers have been using the charge to punish people who insult or talk back to them.
As in Watson’s case, officers involved in seven of the 11 most recent seditious language cases described the violation as “profanity” on the ticket.
“It’s well known in some situations that some officers give out citations for so-called ‘contempt of cop,’” Loy said. “When they’re citing this statute, or a disorderly conduct statute, what they’re really getting citations for is people being rude to cops in the eyes of a police officer.”
Being rude to police officers, however, is protected speech in the United States. The Supreme Court in Houston v. Hill struck down a Houston municipal code that prohibited “contempt of police officer,” arguing it violated the defendants’ First Amendment rights.
There are some limitations on speech in the United States. To cite a famous example, the First Amendment won’t protect one for yelling “fire” in a crowded theater.
But as the Supreme Court ruled in Brandenburg v. Ohio in 1969, it remains legal to attempt to incite revolution under certain circumstances.
Clarence Brandenburg was a local KKK leader who was arrested after he held a racist televised rally in which supporters carried weapons, burned crosses and threatened to march on Washington, D.C. The Supreme Court overturned his arrest, stating, “Freedoms of speech and press do not permit a State to forbid advocacy of the use of force or of law violation except where such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action.”
Revolutionary ideas, Loy said, are fundamentally protected, because “under the First Amendment, there is no such thing as an idea which can be punished by the state.”
Most of the 11 most recent seditious language tickets were written in downtown San Diego — although defendant received in his own home in southeastern San Diego. Slightly more than half of the 11 cases were accompanied by another infraction, for minor offenses like spitting on public transportation, loitering or using a bicycle in a bus lane.
Notably, the tickets were written by nine different officers, suggesting that the seditious language charge is part of a broader enforcement strategy.
Correction: An earlier version of this post misidentified the location where Jawanza Watson was ticketed; it was Pacific Beach.