Anyone caught within 200 feet of a sideshow to watch the stunt driving exhibition could face a $1,000 fine or six months in jail under a new law being considered by the Alameda County Board of Supervisors.

The ordinance is jointly authored by Supervisor Nate Miley and Sheriff Yesenia Sanchez.

At Tuesday’s Board of Supervisors meeting, the supervisors had the opportunity to consider the ordinance but delayed a discussion on the item to their next meeting on June 27.

This proposed countywide ban on spectators at sideshows follows a similar ordinance passed by the Oakland City Council in May. That law made it illegal to promote, organize, or facilitate sideshows on the streets or through social media. Oakland also considered making it illegal for anyone to watch sideshows but dropped this part of the law after District 1 Councilmember Dan Kalb said he was concerned about police targeting people near sideshows who didn’t have a role in organizing them but just happened to be there. 

Some Oakland residents criticized Kalb’s stance, saying that spectators are the most influential “enablers” of sideshows because they popularize the events through social media. 

The county resolution introduced this week includes fines and potential jail time for spectators under the logic that they encourage sideshow activity. 

“This behavior can expose street racing and reckless driving exhibitions to a broader audience and potentially perpetuate the activity,” the draft ordinance states. 

In recent years, Oakland has tried to stop sideshows by adding Botts Dotts and hardline medians in streets to create physical obstacles to stunt driving. However, a recent Oaklandside investigation into nearly four years of sideshow data from the Oakland Police Department found that those interventions have not stopped people from organizing sideshows.

Other cities and counties, like San Francisco, have tried to reduce sideshows through tougher laws such as mandating 30-day car seizures of sideshow participants. In April, Pico Rivera, a Los Angeles suburb, made it illegal for spectators to be present within 500 feet of sideshows, fining violators up to $2,000. Turlock also recently passed a similar law

Related: These Oakland intersections are hotspots for sideshows

Is it a First Amendment violation?

Cars line up near an East Oakland intersection taken over for a sideshow.

David Loy, the legal director of the First Amendment Coalition, a nonprofit civil liberties group, said in an interview that the county’s proposed ban on spectators at sideshows is unconstitutional for a variety of reasons.

Loy sent a letter to Alameda County supervisors Monday objecting to the planned ordinance because it infringes on people’s “constitutional right to observe and report on events of public concern, even if those events are unlawful.” 

According to Loy, the law would make it illegal for a journalist or any member of the community to record the sideshow for any reason, including to inform the public, let the police know about it. Other bystanders who also just happen to be in the area could also be targeted by police, Loy told The Oaklandside.

“I could be there at a video or fashion shoot, or to report or record something else,” Loy said. “So it’s not only unduly restricting protected speech but doing so based on content and content-based restrictions on speech are the most unconstitutional and virtually never upheld by the courts.”

Loy noted that recording or reporting on events in the public interest is a right that has been upheld by U.S. courts, including most recently in a 9th circuit case in 2018 which held that an Idaho law outlawing people from filming farms and ranches was unconstitutional.

Loy also said that streets and sidewalks are considered public forums that are legally protected. These are the same kinds of spaces where important news has been recorded by bystanders, including in civil rights cases.

The resolution appeared well-intentioned, said Loy, but the First Amendment violation, in his view, merited pausing and redrafting. He said his organization would look at potentially challenging the ordinance in court if the supervisors approve it.

Oakland tried to ban spectators at sideshows in the past but ran into legal obstacles. In 2005, the City Council passed an ordinance imposing penalties on anyone watching a sideshow. The law stayed in place for two years but was repealed in 2007 after three residents sued the city challenging its constitutionality.

Jose Fermoso reports on traffic and road safety for our sister site The Oaklandside.