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Questions and Answers Regarding ACLU Letter to Salt Lake City Council About Days of 47 Parade

11 June 2014 Published in Legal Advocacy

We’ve been hearing questions about the letter we wrote last week to the Salt Lake City Council about the City Council’s intent to write a letter to the Days of ’47 Parade organizers. 

We’re happy to clear them up, and will address three of the most common ones below.

You may read the letter, dated June 2, 2014, here >>

Q: Isn’t it important for the City Council to take a stand on anti-discrimination, and isn’t that a position the ACLU supports?

A:  We think that City Councilors absolutely can and should speak up about important issues touching the lives of its constituents, especially on issues touching on equality and inclusion for all.   Indeed, the ACLU of Utah has been a proud leader in working to protect and advance the rights of LGBT people in Utah.  Examples of our work on these issues, such as marriage equality and marriage recognition can be found here >>

But at the same time that City Councilors can express their own views opposing discrimination, governmental officials must be careful not to cross the line into doing something that could be construed as an implicit threat to penalize people who disagree.  What we viewed, and continue to view, as inappropriate is sending a formal letter on City Council letterhead directly to parade organizers regarding the makeup of a private parade.  Sending such a letter carries the serious risk of creating the appearance of the government using its power to coerce and penalize private opinions and speech.  When we heard that the City Council was considering such a letter that mentioned city ordinance, we became particularly concerned.

The First Amendment draws a clear line in protecting private speech from government coercion over the content of the speech.  As champions of the First Amendment rights of all speakers, even those we disagree with, we felt it important to encourage the City Council to respect that line.

This rule applies equally to everyone, regardless of what they believe. For example, if a city council in a city where most residents supported a ban on marriage between same sex couples wrote a letter to local Pride Parade organizers meant to coerce organizers into including a group that also supports such a ban, we would have no hesitation in discouraging such behavior by that city council.

At the end of the day, regardless of their good intentions, we think government officials should not take official steps that use the power of government to pressure private speakers to stop conveying a message the government disagrees with. 

Q:  How does it violate the First Amendment for government officials to try to encourage a private speaker to change his or her message?  After all, they are not forcing the parade organizers to do anything.

A:   After reviewing the June 6, 2014 letter from the City Council to parade organizers, we agree that the letter itself is not a clear violation of the First Amendment because it contains no threat of adverse action should organizers not reconsider their decision.  But when First Amendment rights are at stake, governmental officials should steer clear of taking actions that carry a risk of unconstitutionally chilling speech.  Sending a letter on official letterhead, especially from government officials in the parade’s host city, is one such action.  Seeing a risk that the organizers’ speech would be chilled if they received such a letter, we acted quickly in sending along our concerns to the City Council. 

We continue to think that there are other, more clearly appropriate ways for City Councilors to encourage organizers to change their minds.  These include, for example, boycotting the parade or expressing displeasure during a City Council meeting.  As one recent example, the Mayor of New York City decided to boycott his city’s St. Patrick’s Day Parade this year because of the parade organizer’s bar on allowing LGBT marchers to carry signs that identified them as LGBT.

Q:  How is the Days of ’47 a private event, when it happens on a state holiday, is open to the public, and has public officials march in it?

A:  It is our understanding that there is no state money or other state involvement that goes into organizing the parade, and that the organizers are a private entity with private funding.   That the event takes place on a state holiday does not mean that the state is the sponsor of the parade.  Nor does the fact that public officials take part in the parade make it a government parade.   After all, public officials regularly march in all sorts of parades statewide, from Pride Parades to the St. Patrick’s Day Parade in Salt Lake.  These officials’ involvement does not mean that those events are government sponsored.