JARDINE: New color, same limits on free speech

The paint had barely dried on Modesto's free speech zone before it got a new coat. Thursday morning, a yellow box with the words "Designated Free Speech Area" stenciled on all four sides marked the sidewalk. By Thursday night, it was solid green.

In my Thursday column, I wrote about how the city recently created a free speech area on a sidewalk at the transportation center downtown. The city did this because Kevin Borden, whose ultraloud fire-and-brimstone preaching annoyed visitors at Brenden Theatres in Tenth Street Place a couple of years ago, found a new altar next to the ticket booth at the bus depot.

According to the city, he bellowed so loudly over the street noise and idling buses that folks trying to buy bus tokens or get information couldn't converse effectively with the attendant inside the booth. So, the city established the zone on the county transit side of the station, distancing Borden from the crowds that use the city buses.

Keep in mind that in 2009, Borden sued the city in federal court for abridging his free speech rights and won. He got a $1 settlement and the city had to pay his lawyers $35,000.

Borden began orating at the transportation center last year.

"This was, in effect, to protect Mr. Borden's right to free speech," Modesto City Attorney Susana Alcala Wood said.

They did this, of course, by restricting where he can speak, which she said the city has the constitutional authority to do. Wood said the city also maintains a free speech zone during the farmers markets on 16th Street that run twice each week from April into December.

The zone at the transportation center also addresses safety issues, she said. After all, the station can be a busy place, with people and buses coming and going every which way.

"We had to provide him an area," she said. "He couldn't be run off of the transportation facility. Still, conducting the business of the transportation center is paramount."

Indeed, the city decided to protect perhaps the only person at the station who stood in one place and wasn't trying to go somewhere.

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JARDINE: New color, same limits on free speech