The Frog case: Who owns the sidewalk, city or citizens?
by John Gever
It all started ten years ago with a proliferation of vending carts and sidewalk merchandise displays along 13th Avenue in front of the UO. Established merchants in the area began to complain that these unregulated peddlers were eating into sales and interfering with traffic. Worse, they said, 13th Avenue was in danger of becoming Telegraph Avenue North -- a raucous, dangerous street circus like the notorious Berkeley, Calif., thoroughfare.
The Eugene City Council listened and acted. In May 1985, the council decreed that only food, beverages, flowers and balloons -- because they promoted a "festive atmosphere" -- could be sold on most city sidewalks. It also set strict limits on where those vendors could operate and how many could locate in a particular area. Peddlers with other products could hawk them at Saturday Market, the Eugene Celebration and other special events. A fair compromise? The council and storefront merchants thought so.
Then came David Miller, better known as Frog, who believes the Constitution guarantees his right to sell his infamous joke books on public property.
The city of Eugene has since redrawn the ordinance but continues to fight for the old one, saying that Miller's free-speech claims, if upheld in court, could invalidate every law on the books regulating commerce -- from signage limits to zoning regulations. If the courts side with Miller, city officials warn, "you make regulation of commercial activity all but impossible."
But the issue is also who owns the sidewalk: the city as a political body, or the citizenry as a collection of individuals. The city has gone to the mat to defend its right to control activity on public property. Miller vows to go to the U.S. Supreme Court or to jail, if he has to, to defend his right to sell legal products on city sidewalks. "It's not city property, it's public property, and I'm part of the public," he says.
Born 45 years ago in Cincinnati, Miller moved to Eugene in 1979 and worked for seven years at odd jobs. He mopped floors at Fred Meyer. He pumped gas. He sold flowers and herbal flea collars at Saturday Market. He served lemonade from a cart owned by Jan Tritten.
In 1986, Tritten made a seemingly idle remark to Miller that has now landed him in the Oregon Supreme Court.
"She told me I knew so many jokes I should write joke books," Miller says.
Publishing under the pen name Frog and selling his badly edited, crudely printed books on the sidewalk from a bulging Register-Guard delivery bag, Miller has become a Eugene icon. He appears to have stepped out of an R. Crumb cartoon, with his face half-hidden by a shaggy mane of graying hair and a full beard. He has plied his trade unmolested at Saturday Market, but he has also established a regular position on the sidewalk fronting Fall Creek Bakery on 13th Avenue near the UO Bookstore. For the latter, the city has spent almost four years and more than $16,000 trying to enforce five citations, citing Miller for selling merchandise on public property without a license.
Miller and his attorney, Becky Davis of Eugene, fought the tickets in court. After some initial setbacks, they won a state Court of Appeals ruling earlier this year, throwing out the Eugene vending ordinance as an unacceptable infringement of Miller's speech rights. The city appealed to the Oregon Supreme Court, which heard oral arguments Oct. 29. A decision is expected by next spring. After the appeals ruling in April, the city passed a new, somewhat relaxed ordinance, but both sides say the legal issues remain alive.
They boil down to this: the Oregon constitution says, "No law shall be passed restraining the free expression of opinion, or restricting the right to speak, write, or print freely on any subject whatsoever." On any subject whatsoever. Does this include the man who stands on the sidewalk asking passersby, "Would you like to buy one of my joke books?"
To Miller, the answer is an unequivocal yes. "I believe the constitution applies to everyone." He thinks it ridiculous that the city has pursued him so vigorously. "I'm not selling drugs. I'm not on welfare. I make people laugh."
To the city of Eugene, the answer is more complicated. "This case is not about the City of Eugene trying to collect $25 from Mr. Miller," says Eugene City Attorney Bill Gary.
Gary says the city is primarily interested in protecting its authority to regulate commerce of all kinds to advance the public good. If the Supreme Court rules in Miller's favor, he says, "you will crimp the ability of legislative bodies to function" in regulating commerce.
The city has to hope that the Supreme Court views the issue in those terms, because when attention is focused on this specific law, the city's argument is hard to swallow.
In essence, the city's posture is that the act of selling is not primarily speech. It's a commercial transaction and as such is not covered by the free-expression clause in the state constitution. Gary hypothesizes, "If the city passes an ordinance against playing football in the street, is it an infringement of free speech because football involves calling plays?" Speech is merely an incidental part of football, he says, and speech is an incidental part of a sales transaction too. He says that if selling is considered protected speech, then perhaps every commercial transaction is, too, making the entire world of business immune from regulation.
But this argument and the wording of the ordinance lead the city into some bizarre positions. For example, Gary admits that the speech component of selling, however small or incidental to the overall transaction, is protected by the constitution. He argues instead that the key act which triggered Miller's citation was not Miller's verbal solicitations, but his acceptance of money and the transfer of goods.
So, says Gary, if Miller stands on the sidewalk, offers his books for sale, and concludes the transaction on the sidewalk, he violates the ordinance. If he does the exact same thing, but fails to find a buyer or concludes the transaction on private property, he's protected by the state constitution. But this difficult argument is further undercut by the ordinance itself, which specifically outlaws the "display for sale" of unauthorized goods. Gary concedes that Miller could legally ask passersby to buy his books if he's empty-handed, but he violates the ordinance if he holds a book in his hand during the pitch.
A clearly discomfited Gary emphasizes that the city is not persecuting Frog Miller, but is trying to advance three legitimate goals: to reduce congestion on city rights-of-way, to eliminate unfair competition with merchants on private property, and to promote a festive atmosphere. According to the American Civil Liberties Foundation of Oregon, in a brief filed in Miller's case, "the ordinance prohibits the expressive activity itself, that is, the selling of books, rather than prohibiting the perceived detrimental result of that activity.... The ordinance therefore violates [the constitution] and is invalid."
"If the city wants to control congestion on sidewalks, let them write an ordinance against causing congestion on sidewalks," says Becky Davis.
She also dismisses the city's "festive atmosphere" goal, saying that officials have never explained how food, beverage, flower and balloon peddlers contribute to such an atmosphere while other types of vendors do not. In response, Bill Gary says the city's reasoning (however obscure or strange) is not subject to judicial review.
The history of Eugene's sidewalk vending regulations suggest that it was the unfair-competition argument that the City Council found most persuasive. The council has repeatedly heard from storefront merchants who say that sidewalk vendors, operating on public property, are effectively running taxpayer-subsidized operations.
Bob Lee, owner of Face the Music and a past president of the University Small Business Association, which represents business operators in the 13th Avenue area, says that storefront merchants are not opposed to sidewalk vendors. But, he says, "we are absolutely opposed to unregulated sidewalk vending." He says the association has always sought regulations under which sidewalk vendors pay for the use of public property and which control congestion, but which also allow sidewalk vendors to operate.
Becky Davis denies that vendors on public property enjoy any unfair advantage over storefront merchants. She points out that sidewalk peddlers can't offer customers protection from the weather, for example. Anyway, she says, the overriding point is that the city has no legal right to control expression, including the offer to transact business, regardless of its impact on other businesses. "The sidewalk has always been a public forum," she says.
However, she says Miller would accept some level of city regulation, if he can carry on his trade economically.
The City of Eugene is now drafting permanent administrative rules fleshing out the new ordinance. Early indications are that they will do away with the blanket bans on particular categories of goods and services, although limitations on the number and location of vendors will remain, and the city will levy a license fee and require liability insurance. Davis and Miller say they will consider yet another court challenge if the rules seem unduly restrictive.
Mayor Ruth Bascom, who as a council member in 1985 helped draft the original ordinance, says, "We're just looking for something predictable and implementable. I'm hopeful we can relax the regulations."
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