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ACLU of Utah Responds to Summit County
November 30, 2001
David L. Thomas
Chief Deputy Attorney
P.O. Box 128
Coalville, UT 84017
Re: Summit County Ordinance 425 Clarification of GRAMA Response
Dear Mr. Thomas,
Thank you for your letter dated November 5, 2001. We write to request additional clarification to
inform our consideration of the constitutionality of Summit County’s plans to accommodate free
speech during the Winter Games.
You make clear that even traditional public forums within the two-mile radius will be off limits to free
speech activities, and you justify this by indicating that the two principal roads into the Kimball
Junction area (SR 224 and Kilby Road) will be under heavy use during the games for spectator
traffic. This begs the question of whether the County can properly decommission those traditional
public forums. Will the roads be used for pedestrian traffic, or will they be closed partially or
entirely to pedestrians and dedicated exclusively to vehicular traffic? If they will be used for
pedestrian traffic, they must be open for protected First Amendment expressive activities, subject
only to reasonable time, place and manner regulations narrowly tailored to ensuring safe and
efficient pedestrian flow.
Further, you state that Ordinance 425 combined with Ordinance 193-A will apply to demonstrations
of more than 20 persons. If this is the case, we have grave concerns over the constitutionality of
the combined ordinances.
First, in Ordinance 193-A Chapter 3, before a permit can be granted the applicant must meet
various conditions, including provisions for a crowd control fence, potable water, separate enclosed
toilets, waste disposal methods, alcohol monitors, lighting for evening events, parking and parking
personnel, trained security guards, or any other conditions that the county feels may be reasonable
to protect the health and safety of the public but not that unreasonably interfere with First
Amendment rights. On its face, this language imposes onerous pre-conditions on the public’s
use of a public forum. More seriously, it vests Summit County with the power to forbid the use of a
public forum for virtually any reason it might deem to be in the public’s health and safety interests.
Such broad discretion to attach terms and conditions to a permit can be abused in a manner that
could limit the use of public land by parties who hold views that the County disfavors – a result
clearly at odds with the constitutional requirement that standards for granting or denying a permit
be clear and objective. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769
Second, under Ordinance 425 (b)(1)&(5) a $50.00 permit fee is required along with a $500.00
refundable clean up deposit. Ordinance 193-A(b)(2) & (3) allows the Summit County Sheriff’s
Department and the Summit County Health Department to impose additional fees for unknown
sums. 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). The County has made no effort
to demonstrate that the fees imposed are reasonably calculated to offset actual expenses.
Moreover, the clean up deposit and other fees that could be assessed to protesters in Summit
County may be prohibitive to most if not all demonstrators who are planning to protest in the
designated areas in Summit County. "(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 venue cities, such as West Valley City and Park City, have recognized an indigence waiver
for application fees for demonstrations during the Olympics. Salt Lake City decided not to assess
a permit fee for the use of any of the designated protest areas in the downtown area and the City
makes it the responsibility of the demonstrators to clean up the designated public forum area in
order to defray the costs of any city incurred clean up fees. We hope Summit County will also
include an indigent waiver and other similar provisions in its ordinance so that all persons have
equal access to the designated demonstration areas.
If Summit County truly wishes to accommodate free expression during the Olympic Games, as
your letter suggests, the ordinance applying to expressive activities should be amended to address
the concerns raised above. Please find attached a copy of the Park City Demonstrations Policy,
which we consider to be a reasonable plan for accommodating First Amendment activities during
the Olympics. We are willing to meet with you to help revise Summit County’s plan so as to
minimize the potential for costly litigation. Please contact me at your earliest convenience if you
are interested in such a meeting.
Janelle P. Eurick