Michael Zeleny, a free-speech and Second Amendment activist has sued the City of Menlo Park, California, and a number of city and state officials for denial of his civil rights under the First, Second and Fourteenth Amendments. The reason: he was denied a permit to protest while carrying an unloaded AK-47 rifle.
Zeleny has an ongoing dispute against Min Zhu, the founder of Cisco WebEx and a former Chinese banking official. He was previously deputy managing director of the International Monetary Fund.
Zeleny applied to the city last year for a special event permit to demonstrate outside of a venture capital firm Zhu was formerly associated with, New Enterprise Associates at 2855 Sand Hill Road, next to the Rosewood Hotel.
But the city denied the permit because it involved the display of a gun.
Open carry is, of course, illegal on the left coast, but Zeleny argued that his protests were different.
Zeleny’s suit contends that his protests are an entertainment ‘event” that he’s filming, and therefore he is eligible for an exemption in the concealed carry law that’s used by the movie industry for performers using guns on camera.
“The city asserts that Zeleny is required to have a permit from the city for his events in order to qualify for state law exemptions to the firearm carry ban,” the lawsuit states. “Yet, the city refuses to grant Zeleny a permit for his entertainment events, even though he is willing to comply with lawful time, place, and manner restrictions. Indeed, the city refuses even to advise Zeleny what the requirements are for seeking a permit.
“Instead, the city has made clear that it will not grant Zeleny a permit because it considers his message offensive, and that if he continues his protests, the city will prosecute him for violating California’s obscenity laws and its open and/or concealed carry statutes,” the lawsuit said.
The idea that the carry of firearms is a form of strong, symbolic, protected political speech, isn’t new. If burning a flag is protected political speech, it’s hard to see how open carry of firearms is not, especially in the context of a political protest.
At the time, (Police Chief Dave) Bertini and the city’s special counsel, Greg Rubens, told Zeleny that he’s free to demonstrate without a permit on a public sidewalk without guns.
Zeleny appealed to City Council, which sided with Bertini and Rubens on Aug. 29, 2017.
Councilman Peter Ohtaki said at that August hearing he was concerned that the guns would be distracting to drivers just coming off of Interstate 280 and could cause an accident.
“You never know these days when someone is standing outside with a gun what they are going to do,” said Councilwoman Catherine Carlton.
In 2014, in an article published in the New York Times, Patrick Blanchfield came to the reluctant conclusion that openly carrying a firearm may, in fact, be considered political speech. While Blanchfield dislikes the idea that carrying weapons can be protected under the First Amendment, he concludes . . .
…if I stand outside an event featuring the president of the United States with a loaded handgun and a sign invoking Thomas Jefferson’s injunction that the “the tree of liberty must be refreshed from time to time with the blood of patriots and tyrants,” I’m in the clear.
Blanchfield theorizes about how this may be negative, without mentioning any of the reasons why it can also be positive.
In California, free speech is under assault, with “progressive” activists taking the position that oppositional speech — anything with which they disagree — is hate speech. It’s the default position taken by autocrats everywhere. Speech that the authorities don’t like is banned.
It’s especially telling that the Menlo Part authorities will not inform Mr. Zelany of the requirements he’d have to meet to obtain a permit for his protest. While he may be stretching the intent of what he’s doing, the linkage of First and Second Amendment rights in this case is clear.
©2018 by Dean Weingarten: Permission to share is granted when this notice and link are included.