The Cornell First Amendment Clinic recently stepped in to object to two proposed amendments to the Burlington City Code of Ordinances that would have threatened the First Amendment rights of residents of Burlington, Vermont. At its meeting on December 9, 2024, Burlington City Council members voted against one of those amendments, with some echoing the very concerns expressed by the Clinic.
The Clinic’s objections were set forth in a December 6, 2024, letter sent to members of Burlington’s City Council and Burlington Mayor Emma Mulvaney-Stanak on behalf of Clinic client William Oetjen, who was targeted last spring by local law enforcement for using stickers to express a message opposed by many City residents. The City used its “graffiti ordinance” to fine Mr. Oetjen, even though numerous others had been stickering in the city to express any number of political viewpoints without sanction. The Clinic sent an initial demand letter to the city seeking Mr. Oetjen’s release from the fines and noted that the selective enforcement of otherwise neutral laws against disfavored speech was unconstitutional.
By early fall, the City Council was presented with a new set of amendments aimed at silencing unwelcome speech. Most concerning was an amendment that created a private right of action, allowing “any member of the public” to sue for a violation of any Burlington city ordinance—including the graffiti ordinance—if the violation was “done maliciously and with the intent to intimidate or harass another person because of, or in any manner reasonably related to, associated with, or directed toward” that person’s membership within a defined protected class.
The Clinic argued in its letter that the City Council would be acting without authority (“ultra vires”) in enacting such an amendment, since the City only has as much power as the Vermont legislature vests in it. The letter also indicated that the proposed amendment would run afoul of the US and Vermont Constitutions because it was substantially overbroad, vague, and viewpoint discriminatory. And due to the proposed amendment’s vague language, the Clinic argued it would not just encourage, but ensure, arbitrary and discriminatory enforcement against disfavored viewpoints. Finally, the Clinic demonstrated that Burlington’s effort to insulate the amendment from constitutional scrutiny by foisting enforcement power onto ordinary citizens—as has been done in other contexts across the country—would not prevail, as “state action” is broadly construed in the free speech context.
When the City Council met on December 9, it voted against the private right of action amendment. Some members of the Council referred to the Clinic’s letter, and others raised points expressly made by the Clinic. Clinic students Grace Braider, Gregory Jameson, John Seo, and Alex Venditti worked with Adjunct Professor Jared Carter and Stanton Fellow Daniela del Rosario Wertheimer to oppose the proposed ordinances. Wertheimer explained the import of the team’s work on this matter: “The Clinic is committed to safeguarding First Amendment rights across the political spectrum, including the right to spread messages that are unpopular and with which we ourselves disagree. We are pleased that the City Council voted against amending its law.”