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The Right of Association

State Representative Ruth Jones McClendon (D-San Antonio) has introduced a measure that would allow the City of San Antonio to exclude people arrested for drug offenses from entering certain parts of the city except to go directly to their homes and places of employment.
My first reaction was that this was an offensive law that should be rejected out of hand, and that it seemed likely to be unconstitutional — it’s possible that Ruth McClendon missed the part in the First Amendment that states:

Congress shall make no law… abridging… the right of the people peaceably to assemble…

along with Supreme Court law that has subsequently established a right of association.
But the proposed law also troubled me in that it sounded strangely familiar. So I did a little looking and, sure enough, they tried the same thing in Cincinnati a few years back:
Drug War Chronicle, 6/13/03

The US Supreme Court rejected for the second time Monday a Cincinnati law that created a “drug exclusion zone” banning anyone convicted of certain drug offenses from the city’s poor, black Over the Rhine neighborhood. The court rejected without comment an appeal by the city asking it to overturn a US appeals court ruling that found the ordinance an unconstitutional violation of the First Amendment right to freedom of association and movement. The Supreme Court had earlier rejected the city’s appeal of an Ohio Supreme Court ruling throwing out the law on similar state constitutional grounds.

That’s right. The U.S. Supreme Court rejected it twice. And listen to what the Ohio Supreme Court had to say:

In his majority opinion, Chief Justice Moyer was sharply critical of the ordinance, noting that “a person subject to the exclusion ordinance may not enter a drug-exclusion zone to speak with counsel, visit family, attend church, receive emergency medical care, go to the grocery store or just stand on a street corner and look at a blue sky.”

But wait, I wondered… Are the laws really the same? Maybe the San Antonio provision is significantly different so as to survive constitutional scrutiny. Well, let’s compare:
Cincinnati, Ohio

Under the ordinance, police could order residents arrested on certain drug charges out of the Over-the-Rhine neighborhood for up to 90 days based solely on the fact of their arrest. Those actually convicted of drug offences could be banished from the neighborhood for a year.

San Antonio, Texas

The law would ban people who had been arrested for a drug offense — even if they were not convicted — for 90 days. People who had actually been convicted would be excluded from the community for one year.

Yep. Same law. Unconstitutional before. Unconstitutional now.

[cross-posted at The Agitator]

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