home > legal work > legal advocacy
ACLU of Utah Writes Farmington City About Its Proposed Ordinance for
Free Expression Activities
December 7, 2001
2118 East 3900 South B-300
Salt Lake City, Utah 84124
Fax (801) 272-1551
Dear Ms. Romney,
It has come to our attention that Farmington City plans to adopt Chapter 8, Free Expression
Activities, on Wednesday December 12, 2001. The ACLU of Utah would like to take this
opportunity to comment on Chapter 8. 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.
First, we would like to applaud the City for its recognition of the need to accommodate short notice
free expression activities in part 7-8-030. It is important to recognize that many free expression
activities are not planned in advance and may best be accommodated without a formal permit
process. We therefore encourage the City to adopt this part of the ordinance.
The remainder of the ordinance contains several constitutional defects that should be addressed
before adoption. 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).
The permit process outlined in Chapter 8 does not provide any time limits for the issuance of a
permit. The Supreme Court has made clear that any system of prior restraint must place adequate
time limits on the decision-making process. FW/PBS v. City of Dallas, 493 U.S. 215, 226 (1990).
“A license for a First Amendment-protected business must be issued within a reasonable period of
time, because undue delay results in the unconstitutional suppression of protected speech. Thus,
at least two safeguards [time limits on licensor and prompt judicial review] are essential . . ." Id. at
228, citing Freedman v. Maryland, 380 U.S. 51 (1965); see also Riley v. National Fed”n of the Blind,
487 U.S. 781, 802 & n. 14 (1988) (because the licensing scheme was unconstitutional – it did not
ensure an administrative decision within a specified, brief time – the Court said there was no need
to decide whether the licensor had unbridled discretion to grant or deny a license). Salt Lake City’s
plan for free expression activities deems applications granted if not denied within a specified
number of days from the date of the application. We hope Farmington will include a similar
provision in Chapter 8.
Advanced Notice Provisions:
Farmington proposes in section 7-8-050 that a permit application must be filed with the events
coordinator no less than fifteen (15) days prior to the event. Advance notice provisions "drastically
burden free speech." Grossman v. City of Portland, 33 F.3d 1200, 1206 (9th Cir.1994) (quoting
Rosen v. City of Portland, 641 F.2d 1243, 1249 (9th Cir.1981); NAACP v. City of Richmond, 743
F.2d 1346, 1355-56 (9th Cir.1984)). The procedural hurdle of filing permit applications, and the
temporal hurdle of waiting for applications to be evaluated, discourage potential speakers.
Grossman, 33 F.3d at 1206. Numerous advance notice provisions have consequently been struck
down. Therefore, the fifteen day advanced notice provision is troublesome. Although the
advanced notice provision does not have to reflect the least restrictive means of regulating
expression, it cannot be substantially broader than necessary for processing the permit
application. Ward v. Rock Against Racism, 491 U.S. at 797-99. In order to keep such an
extensive advanced notice requirement, the City should provide some evidence that it will take more
than two full weeks to process a simple permit application or that there is such a large demand to
demonstrate in Farmington that it would be difficult for the City to process applications in a shorter
period of time.
The application fee in section 7-8-060 is set according to the City Fee Schedule. Having not
reviewed the City 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 venue cities, such as West Valley City, Park City and recently,
Summit County 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 Farmington City will also include an indigent waiver and other
similar provisions in its ordinance so that all persons have equal opportunities to demonstrate in the
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).
Section 7-8-080 requires that demonstrators obtain one million dollars in general liability insurance
“when deemed necessary by the City.” This section 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 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. 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).
Section 7-8-090 (e) is also troublesome for the same reasons. Section (e) states that a permit can
be denied if it creates “immediate danger of disorderly conduct, likely to endanger public safety or
result in significant property damage.” 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 (g) states that a permit can be denied if the applicant has “repeatedly failed to
conduct a previously authorized event in accordance with the law or the terms of a permit.” This
section is also 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 prohibit all 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.
We appreciate your consideration of our concerns. Please contact my office if you have any
questions or require any clarification of our position.
Janelle P. Eurick
cc: Farmington City Council
 See, e.g., Grossman, 33 F.3d at 1206-07 (seven day notice requirement for every demonstration
in a public park too restrictive); City of Richmond, 743 F.2d at 1357 (twenty day advance notice
provision for any parade on public street struck down); Rosen, 641 F.2d at 1247-50 (twenty four
hour advance notice provision for pamphleteering struck down).
 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