Alameda County Sideshow Ordinance Illegally Blocks the Press, Lawyers Claim

Alameda County’s sideshow ordinance that makes it illegal to watch a street takeover is being challenged in federal court, where lawyers for a local reporter will ask a judge to block its enforcement on the basis that it violates his First Amendment rights.

Jose Fermoso, who covers road safety for The Oaklandside, said he can’t report on sideshows because the ordinance makes it illegal to spectate within 200 feet of one. Violators could be hit with a maximum $1,000 fine, three months in jail or both.

Unlike San Francisco’s recent move to crack down on sideshows, which have raised concerns over noise, disruptions and gun violence that sometimes accompanies them, Alameda County’s ordinance does not carve out exceptions for the press.

Fermoso filed a federal lawsuit on July 2 against Alameda County and Sheriff Yesenia Sanchez, who co-authored the ordinance, alleging that it “effectively prohibits recording or reporting on the sideshow, because viewing, observing, watching, or witnessing an event is inherently necessary to recording or reporting on it.”

The First Amendment Coalition, which is representing Fermoso, will ask the court on Thursday for a preliminary injunction to block the county from enforcing the ordinance against him as a reporter.

“If I’m in public — whether I’m a journalist or anybody else — and I see something happening, I’m entitled to record that,” said David Loy, one of the First Amendment Coalition attorneys representing Fermoso.

After the ordinance passed last summer, Fermoso said he canceled all future plans to report on sideshows because he “reasonably feared citation, arrest, or criminal prosecution.”

In their motion for an injunction, attorneys for Fermoso said the ordinance “compels this self-censorship and violates Fermoso’s First Amendment right to gather and report the news.”

Lawyers representing Alameda County and the sheriff argue that the ordinance isn’t subject to First Amendment scrutiny because it’s “a generally applicable regulation of conduct that only incidentally affects speech.”

“[The plaintiffs] contend that the First Amendment protects a right just to observe criminal conduct, and the First Amendment does not protect any such right,” said Matthew Zinn, one of the defendants’ lawyers.

The defendants also argue that the ordinance has never been enforced because the sheriff’s office hasn’t been aware of any reported sideshows in unincorporated parts of the county since the ordinance was adopted.

However, a witness declaration in support of the injunction states otherwise.

The individual, who lives in unincorporated Alameda County, wrote in the declaration that sideshows have occurred at least once or twice a week since Aug. 1, 2023.