In the United States, traffic islands with pedestrian access are most likely protected under the First Amendment to the U.S. Bill of Rights for peaceable assembly and free speech. What does “most likely” mean for Island Law?
The law in the U.S. is created by a complicated interplay among the Supreme Court, the U.S. Constitution and Bill of Rights, the legislature, cities and individuals. For example, the First Amendment defines certain rights. Cities create ordinances that may or may not be constitutional according to the court. But a city does not need a court’s approval for a city ordinance or for citizens to vote for a proposition. But, if an individual or organization believes that the ordinance is unconstitutional, they can file a law suit and challenge it in court.
The court must then interpret the law, for example the First Amendment, and make a ruling. Appeals by the losing party can be accepted by a higher court and, eventually, the Supreme Court can choose to hear the case and make a ruling. Once a ruling is made, one can say that a particular issue is no longer “most likely” true. But the Supreme Court has been known to reverse a previous ruling. A classic example is the court’s initial acceptance of the separate but equal concept affirming segregation (see Plessy v. Ferguson) and later overturning that ruling in Brown v. Board of Education.
This is usually how the law works but in the case of traffic islands, it is different. Instead of a city passing an ordinance that is being challenged in order to establish or create law, individuals can use these spaces in accordance with their interpretation of the First Amendment. We can also document our use and other people’s use. Through our use and documentation, we are creating a legal context rather than through a law suit. This becomes a placemaking/community building/participatory democracy project around the use of a seemingly absurd, quotidian space. Through our use and documentation, we are able to show that this spaces are used and have been used. This will serve to help protect and save pedestrian accessible traffic islands in the U.S. It will ensure that they are there for our children’s children, that there will always be pockets of publicly owned space in highly visible areas of our urban spaces where people can peaceably congregate at any time, since w now live in a 24 hour city, for a picnic, to serenade a lover at midnight or share our voice with the bustle of undifferentiated humanity. These are national parks of our culture, emblems of our constitution. But the laws is contingent on how the Supreme Court rules, which can change over time. The status of traffic islands, like all legal questions, is an open question of the law. The declaration of traffic islands as Islands of LA Nat’l Park is in the spirit of saving these treasures for our future.
Note: There is, in fact, one case where a city restricted use of an island and was challenged. In Rita Warren v. Fairfax, Fairfax County restricted use of a large, grassy traffic island in front of a government building. Rita Warren filed for a permit to erect a holiday display on the Center Island mall but was denied because she wasn’t a resident or employee of the county. The 4th Appellate court ruled in favor of Rita Warren indicating that traffic islands are traditional public fora and the restriction based on her not being a resident or employee of Fairfax county was unconstitutional.
