Flagler Beach commissioners have taken to calling them “Saturday gatherings,” the now weekly displays of pro-Trump zealots who routinely unzip large signs betraying curiously libidinous desires for Joe Biden, who flip the bird at passing cars, who bellow and at times make it difficult for other pedestrians to navigate the maniacal gauntlet. Commissioners are worried about the disrepute it’s bringing to the heart of the city and the hub of its busy beach.
“This is a number one topic that I received phone calls on within the city right now,” Mayor Suzie Johnston said Thursday evening. “Lots of residents think that we’re doing nothing. This is a very difficult subject and it’s happening across multiple cities across America, and we are trying, but we’re trying to do it safely so we don’t find ourselves in a lawsuit. Just so everyone knows.”
Unless they are breaking the law–impeding traffic, harassing or physically aggressing passers-by, damaging or soiling public property–nothing the pro-Trump protesters are doing is illegal, including the brandishing of rude signs or gestures or the yelling out of obscenities. They are exercising their First Amendment right no differently than street-corner preachers declaiming from the Bible or, as Drew Smith, the city attorney, told commissioners in an aside: ” I’ll give you an example where probably lots of you have stood on the sidewalk have stood still on the sidewalk and waved a sign: campaigning.”
At the same time, commissioners and the city administration don’t want to be seen as impotent in the face of the zealots or their effect on the city’s image. But the measure the city is considering–surveillance cameras–is already raising questions.
City Manager William Whitson was cryptic Thursday evening when he said he was working on a strategy. “The staff may appear to be doing nothing, but we are studying every aspect of this, and we’ll be bringing you back a recommendation at the appropriate time when we are ready,” he said. But he and City Police Chief Matt Doughney, in separate interviews, said a measure in the works is the installation of surveillance cameras–but cameras not designed to surveil the protesters.
“We’re going to put up a couple of license plate readers in the city but more wide surveillance cameras in different locations is in the planning process,” Whitson said. “If we plan it correctly we will have camera in high visibility spots, so if there are incidents of vandalism or what have you, we can go back and check it. We don’t plan to have somebody sitting there watching these things 24-7. That’s not going to happen.”
“We’re in the infancy process of looking at different areas in the city to have cameras, so the answer is no, the answer is not to film demonstrators,” Doughney said, but to potentially place the cameras at parks such as Wadsworth park, or the library. “It’s just to enhance our ability to keep our community safe.” Doughney gave the example of the recent discovery, after a commission meeting, that the fountain in Veterans Park had been tipped over. No one could establish whether it was the wind or an act of vandalism. Had the city had cameras at Veterans Park, it could have checked the footage, Doughney said. That’s the approach it’s now examining.
Protesters, of course, conduct their Saturday displays on the rim of Veterans Park, so cameras there would capture them by default. In other words, the city could well claim, on the pretext of installing surveillance cameras to keep an eye on its public properties, that it is not targeting the protesters. But such cameras typically have excellent capabilities to tilt, scan and zoom. And Flagler Beach would be far from the first city to install surveillance cameras, in or beyond Flagler. Palm Coast has installed surveillance cameras at all its public parks and has live “traffic cameras” routinely accessed by the Sheriff’s Office. Bunnell several years ago installed what, at the time, was a controversial network of surveillance cameras in South Bunnell, clearly targeting the Black section of town. Newark, like London, has blanketed the city with surveillance cameras, though Newark, unlike London, provides the public access to the camera footage, something Flagler Beach is not considering.
For Flagler Beach, going the route of actual surveillance cameras is a paradox fraught with contortions: the protesters have prompted the city’s move toward some form of surveillance through cameras, but the city is aware that it may not legally target protesters themselves for surveillance without suspicion, nor can it perform what the U.S. Supreme Court described as “dragnet-type law enforcement practices” in a 1983 decisions forbidding what amounts to fishing for suspicion. When law enforcement agencies transgress that line, usually illegally, controversy or lawsuits follows. As recently as last year, the FBI spied on Black Lives Matter marchers, it did so in 2006 with anti-war marchers in different parts of the country, and it did so regarding civil rights marchers and other dissenters over the decades. The New York City Police Department was sued in 2012 and forced into a settlement that included $1 million in legal fees after revelations that it had conducted a broad surveillance program of Muslim communities in the city and beyond for a decade.
The latest discussion about the pro-Trump zealots began Thursday when Commissioner Rick Belhumeur asked how to keep demonstrators from harassing pedestrians. Smith, the attorney, channeled his Black and Douglas defense of the First Amendment. “If me speaking to you, even if I’m speaking in a loud tone of voice, even if I’m saying something you don’t want to hear, that is not harassment,” Smith said, “and I want to make sure we’re all still on the same page there.” Smith said a direct attack and any physical contact is different from yelling from a distance.
Smith and his colleague Patrick Brackins last month had sent a detailed memo to the city manager, later disseminated among commission members, addressing the Saturday demonstrators. “Whatever passions arise, the City must keep in mind that the First Amendment’s protections from state or government action abridging the freedom of expression have always been intended and applied to protect those expressions that many or most citizens find offensive,” they wrote, citing a 1989 Supreme Court decision to that effect, especially when the targets of the language are government officials.
“Specifically, with respect to a sign or placard which reads ‘F#$% Biden,’ there is a binding United States Supreme Court case directly on point,” the lawyers wrote in their memo. “It has been the law of the land in this context for four decades. In Cohen v. California, 403 U.S. 15, 16-17 (1971), Paul Robert Cohen was arrested and convicted for ‘maliciously and willfully disturb[ing] the peace or quiet . . . by offensive conduct’ for wearing a jacket bearing the words ‘F#$% the Draft’ into a California courthouse. Id. Women and children were present and viewed Mr. Cohen’s jacket. The conviction was based solely upon ‘the asserted offensiveness of the words Cohen used to convey his message to the public.’  In short order, the Supreme Court overturned the conviction as violating the First Amendment.” The court also ruled that the language was not categorized as an “obscenity” under the law, “because obscenity deals only with expressions which ‘must be, in some significant way, erotic'” (the justices would have been on firmer ground using the word prurient, eroticism having its own protections under the law going back to the 1933 New York case ruling Joyce’s “Ulysses” defensible free expression.)
The other avenue regarding aggressive language in public spheres is “fighting words,” which have less First Amendment protection. But Flagler Beach’s lawyers wrote that the words used at Veterans Park don’t fit that definition, as even a 2021 decision involving a high school cheerleader using coarse language concluded. Rather, the pro-Trump protesters’ message unequivocally deals with a matter of public concern, which is very strongly protected by the First Amendment. “There is no question that anything remotely related to the president, our former president, elections, or our federal government is a matter of public concern,” the attorneys wrote. “Accordingly, any attempt to regulate such expression would have to be supported by a compelling governmental interest to avoid violating the First Amendment.”
That in essence leaves Flagler Beach without avenue to deal with the words or messages of the pro-Trump protesters, while the city still has the option to deal with their behavior, should it break the law. But for that to be proven, the city must have solid evidence, and it can’t gather that evidence through fishing expeditions by placing a camera that films the protesters. What the city appears to be exploring is placing a camera at Veterans Park that would incidentally capture the protesters as well, along with, presumably, a few cameras elsewhere, though legally, the city–through its ongoing discussions and rationales–has already made clear that whatever step it takes is not divorced from addressing the protests. In other words, those who may object to a camera in the vicinity of Veterans Park can now argue that the city may be using general security as a pretext to get surveillance going anyway.
Mark Weiss, a Flagler Beach resident, addressed the commission at the end of Thursday’s meeting regarding those implications. “I believe that there are probably good guidelines and some case law that will shed a light on what we might be getting ourselves into by introducing a camera into our city,” he said, “which you should probably look hard at before we make that decision lightly.” He proposed a pro-and-con approach drafted by the city attorney and raised the question of the cost of data storage of such cameras, which can be burdensome. “I personally feel that this could be a Pandora’s box in every way and I really think it should be looked at a little bit further.” Word of surveillance cameras had apparently already spread on social media.
The city is preparing to install two license-plate readers, one likely at the intersection of State Road 100 and State Road A1A, though those are designed to take pictures of license plates, not swivel and take video. As for the surveillance cameras, Whitson told the commission, “We are having active conversations with the city attorney, so that we don’t violate or create any issues. And so my response to that is that we’re well aware of the legal environment we’re operating in and the cameras are not for monitoring or surveillance, they are for taking care and addressing public vandalism or security type issues on an as needed basis only.”