BEXLEY, Ohio — Bexley City Council drafted an ordinance in an effort to ban protests that are targeting Ohio Health Director Dr. Amy Acton at her private Bexley residence. But the council ultimately decided Wednesday night not to take action.
The council cited constitutional concerns and the risk of further inciting protestors.
The council held a special session, which lasted more than 2½ hours, with Bexley Mayor Ben Kessler, City Attorney Marc Fishel and Chief of Police Larry Rinehart discussing if a law — which would almost certainly be challenged on First Amendment grounds — should be enacted and how that decision would affect the safety of Bexley residents.
After hearing from Bexley residents, elected officials and a Capital University professor who is an expert on First Amendment law, council president Lori Ann Feibel recommended not putting the ordinance on future agendas.
“I ask, is this really going to change things for our neighbors? I think no,” Feibel said. “Is this something that will just rile up protestors? I think most likely.
“I want them to go away,” she continued. “I don’t know how to make them go away, but I want them to go away.”
Protesters have gathered outside Acton’s home since the weekend to demonstrate against her and Gov. Mike DeWine’s executive orders designed to curb the spread of coronavirus in Ohio. The protesters are a small minority compared to protesters at the statehouse and have not been wearing masks or practicing safe social distancing.
Bexley police and State Highway Patrol troopers have been on site during the protests, but no arrests have been made and the protests have been nonviolent. DeWine and Sen. Rob Portman (R-OH) have denounced the protesters.
Kessler said he is a defender of the First Amendment, but demonstrating in a quiet neighborhood at a private residence is over the line.
“I find it to be despicable, frankly,” he said, adding that the more attention the protesters get then the less likely they are to go away.
In a particularly emotional session, the overwhelming opinion from officials and residents was they wanted to protect the safety of residents without increasing the size of the protests and potentially turning the situation into a violent one.
A 1988 U.S. Supreme Court case, Frisby v. Schultz, ruled via a 6-3 decision that a city ordinance prohibiting picketing in front of a residential home did not violate the First Amendment, only if the law was “content neutral” and served a “significant government interest” while other forms of expressing free speech remained.
Capital University law professor Dan Kobil answered questions from council members on whether such a law would survive a court challenge today. He said possibly, but it’s not a given.
The drafted ordinance by Bexley City Council stated “No person shall engage in focused picketing solely in front of, in the rear of, or the side of the residence, home or dwelling of any individual in the City of Bexley.”
Still, any law would be seen in the eye of the protesters as an infringement of their right to free speech, which would only escalate the situation and potentially turn protests of 15 to 20 people into 150 people, Rinehart said.
“(This law would) probably force me to take enforcement action” because protesters would likely become more of a threat, he said. “It’ll be a fight.”
A particular perspective from a Bexley resident resonated with the council before deciding not to consider enacting the law. Marguerethe Jaede said the characterization of the people on Acton’s lawn in support of the health director as counter-protesters was incorrect.
“There might have been counter protestors at the statehouse, but what I saw at Dr. Acton’s house was neighbors,” she said.