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ACLU of Utah Urges South Salt Lake City to Reconsider Unconstitutional Ordinance

24 April 2002 Published in Local Policy Work

The ACLU of Utah sends a letter to City of South Salt Lake commenting on constitutional defects with the City's plans to limit free speech under proposed “Mass Gathering” ordinance.

 

April 25, 2002

By Facsimile and U.S. Mail

Dave Carlson
South Salt Lake City Attorney
220 E. Morris Avenue
South Salt Lake, Utah 84115

RE: An Ordinance Providing for the Licensing and Regulation of “Mass Gathering” Events, Describing The Nature of Fees Required for a “Mass Gathering” License, and Creating Chapter 5.25 of Title 5 of the City of South Salt Lake Municipal Code

Dear Mr. Carlson,

It has come to our attention that the City of South Salt Lake plans to adopt the ordinance mentioned above pertaining to mass gatherings. The ACLU of Utah would like to take this opportunity to comment on the Mass Gathering Ordinance. In hopes that unnecessary litigation can be avoided, we offer these suggestions in an attempt to address what we believe to be the most serious constitutional defects with the City’s plan to limit free speech.

Zoning:

The ordinance contains several constitutional defects that should be addressed before adoption. It appears on the face of the Mass Gathering Ordinance that those holding a mass gathering for “purposes of expression protected by the First Amendment of the United States Constitution” are required to submit a safety plan and, I assume, abide by the other restrictions in the ordinance. §5.25.020(D). As you know, permit systems controlling the exercise of First Amendment rights are prior restraints on speech. There is a heavy presumption against the validity of such prior restraints. Bantam Books v. Sullivan, 372 U.S. 58 (1963). However, courts have recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade or rally. Cox v. New Hampshire, 312 U.S. 569 (1941). Any permitting scheme, however, must meet certain constitutional requirements. Permits may not be granted or denied based on the content of the message, and any restrictions on speech must be narrowly tailored to serve a significant governmental interest and must leave open ample alternatives for communication. United States v. Grace, 461 U.S. 171 (1983).

Section 5.25.030 restricts all Mass Gatherings to areas zoned as business or commercial districts. Further, the section prohibits Mass Gatherings within 600 feet of an establishment that serves liquor or 600 feet from a residential zone. The ordinance does not offer any explanation for these restrictions. These zoning restrictions foreclose any freedom of speech activities in residential districts and near any commercial establishment serving alcohol without providing a reasonable alternative channel of communication for persons wishing to conduct protest activities within these areas. For instance, if 51 teachers strike at a local school in a residential zone, they will be in violation of this ordinance. The zoning restrictions are highly suspect and are not narrowly tailored.

Application Fee:

The application fee in section 5.25.050 is set according to the consolidated fee schedule. In addition, persons exercising their First Amendment rights are required to pay for basic city services under this section. Having not reviewed the consolidated fee schedule, the ACLU would like to offer these suggestions. The Supreme Court generally condemns imposing fees as a condition to the exercise of First Amendment rights. See Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); Jones v. City of Opelika, 319 U.S. 103 (1943). A permit fee that is used to defray administrative costs is presumptively valid, but only to the extent that the fees are necessary as a means of offsetting expenses associated with the applications. Cox v. New Hampshire, 312 U.S. 569 (1941); Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992). Chapter 8 does not contain an “indigence waiver” for those demonstrators who may not be able to pay an application fee. "[F]reedom of speech ... [must be] available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). Other local cities, such as Salt Lake City, Park City and Farmington City have recognized an indigence waiver for application fees for protected First Amendment Activities. We hope the City of South Salt Lake will also include an indigent waiver and other similar provisions in its ordinance so that all persons have equal opportunities to demonstrate in the City.

Unfettered Discretion:

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151 (1969), stands for the proposition that an ordinance that vests an official with uncontrolled discretion to choose who can exercise a fundamental right is a prior restraint upon the enjoyment of that right. In Shuttlesworth, a regulation permitting decisions to grant or deny a parade permit based on “public welfare, peace, safety, health,” was found to be unconstitutional. Similarly, in City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769-70 (1988), discretion was found to be impermissibly unfettered where officials could impose such other terms and conditions as they deemed necessary. A regulation cannot delegate overly broad licensing discretion to government officials. Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992). That is because such discretion creates the risk of suppressing speech on particular points of view. “To curtail that risk, ‘a law subjecting the exercise of First Amendment freedoms to the prior restraint of a license’ must contain ‘narrow, objective, and definite standards to guide the licensing authority.’” Id. at 130-131, quoting Shuttlesworth, 394 U.S. at 150-51. It is precisely when “political and social pressures” are most likely to effect decision making that objective standards to limit government discretion are most essential. NAACP v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984).

Chapter 5.25 has several sections that offend the fundamental principles of First Amendment law stated above. Section 5.25.040 (B) allows the City’s Police Chief and Fire Chief and for First Amendment activities the City Attorney to review the “safety plan” and in their “discretion” add additional requirements “deemed necessary for the safety of the Mass Gathering.” This determination will necessarily involve assessing the content of the speech of the applicant and the public’s anticipated response to that speech. In Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 181 (1968), the Supreme Court recognized that prior restraints threaten the very foundations of free expression. The Court recognized that those in positions of authority may use prior restraints to block the spread of critical views. Id. States must generally permit free expression and rely on criminal or civil penalties after the freedom to speak has been grossly abused. Id. Enjoining or preventing First Amendment activities before demonstrators have acted illegally or before a demonstration poses a clear and present danger is presumptively a First Amendment violation. Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996), citing Carroll, 393 U.S. at 180-81.

Further, Section 5.25.050 (D) states that based upon the nature of the determination that the event is “High Risk,” which includes an analysis of the event activities and necessarily implies a review of the message or content of the speakers, the City may impose at least $1,000,000 in liability insurance up to $2,000,000 aggregate for injury caused by the organizers’ negligence. The “High Risk” review also includes looking at past similar events to assess this cost. This section is exceptionally troublesome for the reasons stated above. The government is not free to foreclose expressive activity in public areas on mere speculation about danger. Bay Area Peace Navy, 914 F.2d at1228. The government may not place a prior restraint on speech in a certain area in advance of its expression in order to prevent unlawful conduct simply because past similar activity led to violence. United States v. Baugh, 187 F.3d 1037, 1043-44 (9th Cir. 1999), citing Collins, 110 F.3d at 1371-72. “The generally accepted way of dealing with unlawful conduct that may be intertwined with First Amendment activity is to punish it after it occurs rather than to prevent the First Amendment activity from occurring in order to obviate the possible unlawful conduct.” Id. at 1372-2.

The “High Risk” review also does not specify any objective standards that will be used to determine when insurance will be required. This may lead to the use of unfettered discretion by the City official in charge of making this decision and may require insurance based only on the content of the applicant’s speech. Generally, insurance requirements and permit fees cannot take into account the nature of the applicant’s speech or the public’s anticipated response to such speech. Forsyth County v. Nationalist Movement, 505 U.S. 123, 133 (1992). Moreover, insurance requirements cut off the free speech rights of those without economic resources, as well as those who espouse controversial issues. Therefore, several federal district courts have invalidated insurance requirements.[1] Insurance requirements have been upheld when the City delineates specific objective standards that will be used to assess whether or not insurance is required. Such standards include the size of the event and the value of facilities to be granted for use by the applicant. Thomas v. Chicago Park District, 227 F.3d 921, 927 (7th Cir. 2000).

Curfew

Section 5.25.060 makes it unlawful for an organizer to admit any person under the age of 18 or for a person under 18 to gain admittance to an event that lasts past 12:00 a.m. midnight. This curfew ordinance is constitutionally flawed. The section is not broad enough to recognize the right of parents to permit their children to participate in many legitimate activities that may take place at a Mass Gathering. The proper response to juvenile crime is to arrest the criminals, not to place all law abiding young people under house arrest. Juvenile curfew laws that do not respect parents’ authority to allow their children to engage in legitimate activities past a curfew hour have been found unconstitutional in a variety cities and states.[2] Because this ordinance is vaguely written, the curfew restriction may apply to a variety of legitimate First Amendment gatherings that should not be foreclosed to law-abiding minors.

We appreciate your consideration of our concerns. Please contact my office if you have any questions or require any clarification of our position.

Sincerely,

Janelle P. Eurick
Staff Attorney

[1] See Eastern Conn. Citizens Action Group v. Powers, 723 F.2d 1050 (2d Cir. 1983) (invalidating $750,000 liability insurance requirement and $200 administrative fee for public demonstration); Collin v. Smith, 578 F.2d 1197 (7th Cir. ___) cert denied, 439 U.S. 916 (1978) (Invalidating Skokie ordinance requiring $300,000 liability insurance for public demonstration); Marks v. City of Newport, 344 F.Supp. 675 (E.D. Ky. 1972)(invalidating ordinance requiring posting of $10,000 bond conditioned on not possessing or displaying any obscene material); Houston Peace Coalition v. Houston City Council, 310 F. Supp. 457 (S.D. Tex. 1970) (Houston liability insurance requirement for parades invalidated because it bestowed unfettered discretion upon city attorney to grant or withhold parade permits); Hurwitt v. City of Oakland, 247 F.Supp. 995 (N.D. Cal. 1965) (refusing to require unassociated organization sponsoring political rally to post security bond under rule 65(c) of the FRCP for issuance of preliminary injunction requiring city to provide adequate police protection).

[2] Curfew ordinances have been struck in Trenton, New Jersey; Anchorage, Alaska; West New York, New Jersey; Washington D.C.; and in the Supreme Courts of Washington, Iowa and Hawaii.