On Aug. 3, 2020, Voice of San Diego (VOSD) revealed that San Diego police officers had been using a 102-year-old city law to ticket citizens for using “seditious language,” generally defined as speech directed at overthrowing the government. On Aug. 10, the city attorney initiated a process to repeal the law, and a week later, VOSD reported that the police chief had directed officers to stop enforcing it.
Section 56.30 of the City of San Diego Municipal Code declares it unlawful to “utter or use within the hearing of one or more persons any seditious language, words or epithets.” San Diego implemented this ordinance in April 1918, a month before the U.S. Congress passed the Sedition Act amid World War I-era suspicion of radicals, according to VOSD. Congress repealed the federal Sedition Act in 1920, but San Diego’s law persisted for over a century.
The San Diego Police Department (SDPD) has issued 83 tickets for seditious language since 2013, as far back as the city keeps copies of tickets; the most recent citation was written in May 2020. One man said he received a ticket in July 2019 for singing profane rap lyrics, after an officer accused him of directing the lyrics at the police. Black San Diegans, only 6.5% of the city’s population, have made up about 30% of the seditious language citations since 2013, and nearly half the tickets were issued to people between 19 and 28 years old. During the seven-year period, 54 different officers wrote tickets for such speech; one officer even ticketed the same person five different times, according to VOSD.
Because the SDPD filed the tickets as “infractions” rather than criminal misdemeanors, alleged offenders had the option of either paying a fine of at least $100 or fighting their case before a judge, commissioner, or other administrative official, as with a speeding ticket. Defendants were not entitled to an attorney or a trial by jury during this administrative process, VOSD reported. In most of the recent cases VOSD reviewed, those charged often failed to attend their hearings and subsequently received an additional $300 fine, which, if unpaid, was turned over to a debt collection agency.
Multiple people who received tickets for seditious language said they had to pay the fines, make an appearance in court, or both, according to VOSD. One person said he spent a night in jail after being ticketed, while others claimed officers employed physical force while detaining them, including handcuffing them or dragging them around.
The offices of the city attorney and the public defender both said they were unaware the SDPD had been enforcing this section of the municipal code. Hilary Nemchik, spokesperson for the city attorney’s office, which prosecutes misdemeanors, called the law “antiquated” and said deputy city attorneys would not prosecute anyone for it.
“If we did see this kind of charge come across our desk, it would kind of raise our eyebrows,” Michael Ruiz, who supervises the San Diego County public defender’s misdemeanors unit, told VOSD. “Because, looking at the charge itself, the language seems to be highly unconstitutional.”
The U.S. Supreme Court ruled, in the 1969 case Brandenburg v. Ohio, that seditious speech is protected by the First Amendment unless it produces “imminent lawless action.” Authorities must be able to prove in such cases, therefore, that the language in question is part of a threatened crime against the government.
Legal experts were skeptical of the constitutionality of this San Diego ordinance, with one even calling it “medieval.” David Loy, legal director for the American Civil Liberties Union (ACLU) of San Diego and Imperial Counties in California, said police officers have likely been using it to punish people for insults or insolence. Indeed, some who were cited under section 56.30 claimed to have received tickets because an officer took personal offense to something they said, and officers involved in seven of the 11 most recent seditious speech cases described the reason for ticketing as “profanity,” VOSD reported.
“It’s well known in some situations that some officers give out citations for so-called ‘contempt of cop,’” Loy told VOSD. “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.”
“Contempt of cop,” a play on the term “contempt of court,” is law enforcement jargon for when police officers consider a civilian disrespectful or insufficiently deferential. But talking back to a police officer is not a legal offense, and “contempt of cop” arrests are a recognized form of police misconduct, according to the ACLU. In fact, as the Supreme Court ruled in City of Houston v. Hill in 1987, such talk is protected speech in the United States. “The freedom of individuals verbally to oppose or challenge police action without thereby risking arrest is one of the principal characteristics by which we distinguish a free nation from a police state,” the court concluded in that case.
After VOSD ran its story on section 56.30, the city attorney’s office uncovered in its archives past discussions about an attempt to repeal the law, an undertaking that ended when Jan Goldsmith became city attorney in 2008, according to Nemchik.
In May 2019, the Community Review Board on Police Practices, a watchdog group that oversees the SDPD, voted unanimously to send the city attorney’s office a letter about the law and recommend the municipal code be updated or rescinded, VOSD reported. But the board did not actually send the letter until Aug. 7, 2020, several days after VOSD ran its story, Nemchik said.
On Sept. 9, 2020, the city attorney’s office proposed an ordinance to do away with the seditious language law to the San Diego City Council’s Public Safety and Livable Neighborhoods Committee, which then voted unanimously to repeal section 56.30, VOSD reported. For the repeal to take effect, the full council must take a vote, for which a date had not been set, as of Sept. 18, 2020.
“Every San Diegan and every American has a constitutional right to free speech to criticize government,” City Attorney Mara Elliott wrote in a reply letter to the Community Review Board. “These rights have never been more important than they are today.”
SDPD spokesman Lt. Shawn Takeuchi said police are “working with the San Diego city attorney’s office to have this portion of the municipal code removed given it is outdated.” In the meantime, Police Chief Dave Nisleit instructed SDPD officers to stop enforcing it.
The ACLU for San Diego and Imperial Counties wrote two letters, the first Aug. 6, 2020, and the second Aug. 31, requesting that officials expunge all seditious language infractions from people’s records and repay any fines or bills paid under the law, VOSD reported. On Sept. 9, councilmembers Vivian Moreno and Monica Montgomery voiced support for this idea.
“If you really harm someone, you shouldn’t get to just say you won’t harm somebody else in the same way,” ACLU attorney John Markowitz said. “You have to owe something to the person that you harmed.”
A lawyer for Elliott, however, said the matter of expunging records and repaying collected fines falls to the courts, not the city, according to The San Diego Union-Tribune.
“Defendants are empowered under a penal code section to seek an expungement of their records by the court,” Deputy City Attorney Paige Folkman said. “Our office would not stand in the way. We think it’s the right thing to do.”