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ACLU of Utah Writes Farmington City About Its Proposed Ordinance for Free Expression Activities

06 December 2001 Published in Local Policy Work

The ACLU of Utah hopes that unnecessary litigation can be avoided and offer these suggestions in an attempt to address what we believe to be the most serious constitutional defects with the Farmington City’s plan to limit free speech during the Olympic Games. 

 December 7, 2001

Lisa Romney
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).

Time Limitations:

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.[1] 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.

Application Fee:

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 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).

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.[2] 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
Staff Attorney

cc: Farmington City Council
Max Forbush


[1] 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).

[2] 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).