Freedom of Speech in Handcuffs

Miami police use an obsolete law to arrest two union activists. Too bad they didn't know the ordinance was being taken out of the code.

Angel Dominguez and Anthony Romano are organizers with the Union of Needletrades, Industrial and Textile Employees (UNITE). On April 9 they were standing outside Terner's of Miami, a company in Allapattah that manufactures luggage and handbags, handing out flyers protesting the dismissal of a worker who had been trying to organize a union election for Terner's employees.

"By firing one of our strongest activists, Primitivo Salcedo, Terner's is once again breaking the law," the flyer stated, referring to the federal law that prohibits employers from firing workers for lawful union activities. Dominguez and Romano believed they were exercising their First Amendment right to free speech by informing other Terner's employees about the dismissal. So when a City of Miami police officer appeared and told them that they were about to be arrested, Dominguez laughed.

"What about the U.S. Constitution?" Dominguez asked. Ofcr. Paul Rodriguez responded by pulling out a copy of the City of Miami Code. According to Ordinance 37-28, passed by the Miami City Commission in 1967, "It shall be unlawful to distribute any handbill, dodger or other advertising to pedestrians upon any street or in any park or other public place in the city or to passengers in any bus."

Minutes later Dominguez and Romano found themselves sitting in the back of Rodriguez's patrol car, charged with a misdemeanor and faced with a maximum punishment of up to 60 days in jail and a $500 fine.

Dominguez was stunned. In his twenty years of labor organizing he has been arrested countless times, but never for passing out flyers. "I told Rodriguez that we live in a country where you are supposed to be able to express yourself freely," he recalls.

Dominguez and other UNITE organizers had been leafletting outside Terner's for three weeks, remaining on public property so they could not be charged with trespassing. A few days before the arrest, Dominguez had even given his business card to a police officer passing by. "That's the way I work," Dominguez says, explaining that he tries to maintain a good relationship with law enforcement.

Dominguez called the police two days after the arrest to let them know UNITE was planning a rally in front of Terner's. Scott Weingarden, a lawyer who is representing Dominguez and Romano on the misdemeanor charges, attended. "The day I was there the people who ran the factory were begging the police to arrest everyone," Weingarden remembers. "They even showed one of the officers a copy of the ordinance, but he told me he wasn't going to honor it."

Robyn Blumner, executive director of the American Civil Liberties Union of Florida, was surprised that the law hadn't been repealed. "The Constitution clearly protects the First Amendment rights of people to distribute information and literature in the public domain. In some ways this [ordinance] is an infringement on the rights of the common man. Most people don't have the means to get their message across by buying television time or by taking an ad out in the newspaper. But anyone can stand on a street corner or go to a public park and hand out a written message."

In fact, the city clerk received a memo on March 16, 1995, written by Alyce Whitson of the Municipal Code Corporation, which publishes the code for the city. The memo states that Ordinance 37-28 "will be deleted" from future editions because giving a handbill to a person "may not be prohibited as protected by the First Amendment." The memo does not state who had ordered the deletion.

Miami City Attorney Quinn A. Jones III did not return phone calls seeking an explanation for the amending of the code. Chief Deputy Clerk Sylvia Lowman says the ordinance is not included in the revised code, which took effect on April 21.

A spokesman for the City of Miami Police Department, who was unaware of the change in the law, compared the ordinance to other obscure prohibitions on activities such as spitting on a sidewalk or cross-dressing. Strictly speaking, police officers are responsible for enforcing any law that is included in the code book, he pointed out. "There are a lot of laws that you haven't heard of that are only enforced because of citizens' complaints," explains Ofcr. Joe Cruz. "On a misdemeanor the officer has the right to make an arrest or not. There's nothing illegal about [selective enforcement]. Each officer has the power to make that decision."

But union activists complain that Rodriguez abused his discretion in order to help the owners fight the union, and they question his relationship with the management of the factory.

As a courtesy to local police, Terner's maintains an office marked with a large City of Miami decal where patrol officers can complete paperwork, have a cup of coffee, and make phone calls. According to Primitivo Salcedo, the worker who was fired, Officer Rodriguez regularly stopped by and chatted with the owners.

Marcia Terner, one of the factory owners, did not respond to a request for comment.

Organizers estimate there are about 125 workers at Terner's. They labor in a variety of occupations, from cutters and sewing machine operators to people who assemble the final product. Employees earn between $4.75 and $6.75 per hour. Aside from one week's paid vacation, they do not receive any benefits.

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