home > legal work > legal advocacy ACLU of Utah Asks Summit County to Clarify Its Free Speech Plans October 12, 2001 Robert Adkins Summit County Attorney P.O. Box 128 Coalville, UT 84017 Re: Summit County Ordinance 425 Dear Mr. Adkins, We recently received a copy of Summit County’s Ordinance No. 425, entitled An Ordinance Temporarily Amending Ordinances 191-A and 193-A by Providing for the Regulation of Temporary Business Licenses and Mass Gatherings of Less than Five Hundred People During the Winter Olympic Games of 2002. First, we would like to complement the County on trying to accommodate up to one thousand demonstrators that may wish to demonstrate in that area during the Olympics. We are aware of the difficulty and complexity involved in balancing important security issues with First Amendment rights. We write this letter in order to obtain further clarification on your plan to accommodate peaceful demonstrators. Please regard any information requested in this letter as a request for public records in accordance with the Government Records Access and Management Act, Utah Code Ann. §§ 63-2-101 et seq. First, we are unclear as to whether persons exercising their First Amendment rights must follow the provisions outlined in Summit County Ordinance No. 193-A. That Ordinance states: “It is not the intent of the Summit County Commission to in any way, shape, or form regulate speech and this Ordinance shall not be interpreted, nor construed in such a way.” Chapter 1, Intent. However, Ordinance 425 states that from “December 1, 2001 to March 1, 2002, all mass gatherings of more than twenty persons, but under 500 persons, must comply with Summit County Ordinance 193-A in obtaining an assembly permit.” Ord. 425, § 2(a). This leads us to believe that Ordinance No, 193-A will in fact regulate the expressive activities of groups of more than 20 but fewer than 500 persons during that period. If Ordinance 193-A does apply to such activities it may impose prior restraints on speech in traditional public forums. We write this letter in hopes that you will clarify any misunderstandings we may have regarding the application of Ordinance 193-A to expressive activities. If 193-A does not apply to such activities, we would like more information on any permit process the County is considering or has adopted that may apply to such activities, including relevant fees, information on the availability of permits, and the objective standards that will be used in deciding whether to issue permits. Second, as we understand Ordinance 425, §2(c), Assemblies within two miles of Olympic Venues and/or Park and Ride Lots, mass gatherings of more than twenty persons who are required to obtain a permit in accordance with Ordinance No. 193-A or individuals who wish to exercise their First Amendment right to protest within two miles of an Olympic Venue site and/or Park and Ride Lot, may do so only in two designated areas – one located in the Park and Ride Lot of the Utah Olympic Park, and one located at the Ecker Hill Rest Stop on I-80. First, we would like more information about the location and configuration of the designated areas at each of these locations, including maps if they are available. We would also like to review all other relevant information such as any information on the amount of traffic passing by these areas, the type of traffic, the fencing that will be used to designate the areas and any other obstructions or barricades that may be near the areas that may interfere with demonstrators’ ability to reach their intended audiences, and any other relevant information on a permit process that will be used to regulate the use of the areas at various times during the games. Finally, we are very concerned about the language in Ordinance 425, §2(c) that restricts any individuals exercising their First Amendment rights to the two designated areas. Specifically, we are troubled by what seems to be a blanket prohibition on expressive activities, even by isolated individuals or small groups, within two miles of any venue site or park and ride lot. We are concerned that leafletters, small groups of demonstrators, individual persons displaying disagreeable messages on their clothing, or larger groups that want to reach a particular audience out of sight and earshot of one of the two designated areas will be relegated to those areas. It is our belief that even during the Olympics, the public streets and sidewalks in Utah remain “traditional public forums.” Any restrictions on speech in such forums are subject to the highest constitutional scrutiny. We acknowledge that officials responsible for public safety have legitimate security concerns for which some security measures can be taken. As important as it is to maintain public safety, however, that aim cannot be accomplished by restrictions that constitute blanket prohibitions on the exercise of constitutional rights. As you know, “There is no authority that the government may by fiat take a public forum out of the protection of the First Amendment by behaving as if it were a private actor.” Mahoney v. Babbit, 105 F.3d 1452, 1457 (D.C. Cir. 1997). Blanket restrictions on access to traditional public forums are “presumptively impermissible.” United States v. Grace, 461 U.S. 171, 180 (1983). While the government may impose a permitting scheme in order to regulate competing uses of public forums by those wishing to hold a march, parade or rally (see Cox v. New Hampshire, 312 U.S. 569, 574-76 (1941)), it must be content neutral, narrowly tailored and leave open ample alternatives for communication. Moreover, enjoining or preventing First Amendment activities out of fear demonstrators may act illegally or before they create a clear and present danger similarly is presumptively invalid. Collins v. Jordan, 110 F.3d 1363, 1371 (9th Cir. 1996), citing Carroll v. Commissioners of Princess Anne, 393 U.S. 175, 180-81 (1968). Generally, instead of imposing such prior restraints, the government must permit free expression and rely on criminal civil penalties to address unlawful conduct. Carroll, 393 U.S. at 181. Therefore, we would like the County to clarify this section of the ordinance, including its applicability to leafletters, small groups of demonstrators, and any other forms of First Amendment expression that may be regulated by the section. We appreciate your consideration of our concerns and look forward to hearing from you. Sincerely, Janelle P. Eurick Staff Attorney cc: Eric D. Schifferli Patrick Cone Shauna L. Kerr Summit County Commission

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