PASADENA, Calif. (CN) - A Bay Area journalist told a Ninth Circuit appeals panel Thursday morning that an Alameda County ordinance that criminalizes being within 200 feet of a car stunt sideshow infringes on his right as a reporter to gather news.

Jose Garcia, who reports for The Oaklandside under the name Jose Fermoso, lost his bid for a preliminary injunction to stop the ordinance in federal court and quickly appealed.

David Loy of the First Amendment Coalition, representing Garcia, said the ordinance is unconstitutional and invalid.

"This case is about the free speech right to record and report on events of public events in a public forum. My client wants to stand in a public forum to document and record a side show and then publish his reporting about those events," Loy said.

U.S. Circuit Judge Holly Thomas, a Joe Biden appointee, asked Loy what the limiting principle should be. She asked: Could Garcia, if he wanted to, pursue a police chase?

"I'm only asserting the right to stand in the public forum and record events. I'm not claiming a right to, for example, drive recklessly," Loy replied.

U.S. Circuit Judge Mark Bennett, a Donald Trump appointee, asked Loy if he believed Garcia had the right to observe any public event, no matter how dangerous it is. Loy said that he believed Garcia had that right as a journalist.

Bennett continued pushing and used a bomb in a public place as an analogy. If there were a bomb in a public place, would Garcia's free speech rights trump public safety orders, Bennett asked?

"If it were genuinely content neutral, genuinely an emergency and applied to everyone and no one could go inside that perimeter for any reason, which is not this case, because this case is content based, but if it were genuinely content neutral, that's the kind of ruling, kind of rule or direction that would probably, if challenged in court, easily survive," Loy said. "The county makes a big deal saying spectators are integral to sideshows, and we can therefore punish someone simply for being present with a purpose to observe and therefore record, but the First Amendment prohibits imputing criminal liability to people who merely exercise their free speech right to record and report on unlawful acts committed in public."

Aaron Stanton, arguing for Alameda County, said the injunction Garcia sought was properly denied.

"The ordinance applies regardless of whether an individual speaks or intends to create speech, and it is thus a generally applicable ordinance that is not subject to First Amendment scrutiny, even if it incidentally affects speech," Stanton said.

Thomas seemed unconvinced.

"I don't understand how a journalist can record a sideshow without observing it. And recording, I think, is a First Amendment protected activity," she told Stanton.

Stanton replied that the ordinance applied to everyone regardless of whether they were reporting or recording it, that observation is not expressive conduct and the purpose of the ordinance is to keep people safe.

U.S. Circuit Judge John Owens, a Barack Obama appointee, also pushed back on Stanton's argument. Owens said he grew up in the Bay Area, used to live in Oakland and knows that some people attend sideshows in the Bay Area to record them and turn them in to police.

"If I'm allowed to record police activity, why wouldn't I be allowed to record police inactivity?" Owens said.

Stanton repeated that the purpose of the ordinance is to keep people safe.

On rebuttal, Loy said the ordinance is not properly tailored to protect public safety.

"If an activity is dangerous, the public has an especially compelling interest in the free flow of information and reporting about it. That's why it's a matter of public concern," Loy said. "A content-based restriction on speech is still a violation of the First Amendment, regardless of intent. I am not asserting a right to commit reckless driving or speeding. Those are independent criminal violations. I'm simply asserting the First Amendment right to stand on a sidewalk and record events of public concern in a public forum."

Loy asked the panel to remand the case to federal court and instruct the federal judge overseeing the case to enter the injunction that Garcia seeks.

The panel took the matter under submission.

Source: Courthouse News Service