In light of the fact that the City’s plans for limiting free speech during the Olympics, The ACLU of Utah offers the following comments on the plans in hopes of prompting the City to adopt a constitutionally sound final plan.
September 10, 2001
By Facsimile and U.S. Mail
Boyd A. Ferguson
Assistant City Attorney
451 South State Street Room 505
Salt Lake City, Utah 84111
Re: Request for Records Regarding Free Speech During 2002 Winter Olympics
Dear Mr. Ferguson,
This is further to your letter of August 30, 2001. In light of the fact that the City’s plans for limiting free speech during the Olympics are still being developed, we would like to offer the following comments on the plans in hopes of prompting the City to adopt a constitutionally sound final plan.
1. The “Shaded” Areas
It appears that the City proposes to close every traditional public forum that falls within any of the “shaded” areas on the map you provided – areas covering some 16 square blocks. Within the shaded areas, protests will be limited to six small areas that will accommodate a total of 170 protesters at any given time.
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.
Based on these and numerous other authorities, the ACLU believes that all public forum areas in downtown Salt Lake City, with the possible exception of the SLOS area permitted to SLOC, should be open to persons exercising their First Amendment rights, subject only to reasonable time, place and manner regulations. Instead of proposing such regulations, the City proposes simply demoting traditional public forums to nonpublic forums. “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). Free expression activities that will comply with “normal or usual controls” are not subject to permit requirements under Chapter 3.50 because they do not qualify as “free expression activities” under Chapter 3.50.020(G), and therefore they should be allowed to take place in the traditional public forums outside SLOS.
If the City insists on limiting demonstrations in the shaded areas to what you call designated demonstration zones, we would like to offer the following suggestions.
First, the numerical limitations in the designated public forum areas should be increased. Courts that have addressed this issue have found that numerical limitations on demonstration permits should reasonably accommodate the protesters who are interested in using the space. Quaker Action Group v. Morton, 516 F.2d 717, 732 (D.C. Cir. 1975) (numerical limitations reasonable given likelihood that 90% of proposed public gatherings would meet the size limitation requirement); see also Million Youth March v. Safir, 18 F. Supp. 2d 334 (1998). In light of the City’s and SLOC’s expectations of 70,000 to 80,000 people in just one of the shaded areas – SLOS – and in light of the likely interest demonstrators will have in sharing their messages through lawful demonstrations, a policy that allows only 20 demonstrators at a time inside SLOS, and only 50 more in the vicinity of SLOS, hardly seems the kind of reasonable, balanced accommodation the City has touted. In terms of area, the City plans to reduce the miles of traditional public forums in the shaded areas to 5 boxes that range from 8’ x 10’ to 20’ x 40’. That means the area dedicated to free speech is 1360 square feet out of an area of nearly 7 million square feet and several linear miles. Every group that has contacted our office has expressed concern that they will not fit within the numerical limits imposed by the City. Therefore, we respectfully request that the City increase the number of protesters allowed in each area. We think it is reasonable to expand the two areas inside the Salt Lake Olympic Square to accommodate 100 protesters each. The area in Pioneer Park should be expanded to accommodate at least 1000 demonstrators. The areas designated as numbers 2, 3 and 6 should be enlarged on a case-by-case basis allowing groups who apply for the area to be reasonably accommodated, for up to 100 demonstrators, as long as vehicular and pedestrian traffic will not be unduly impaired.
Second, we are concerned that there are no designated protest sites near the City and County Building or the Gallivan Center. These two areas in particular may draw numerous demonstrators, and the City should provide a large, meaningful space for at least 100 demonstrators to congregate near each of those areas, if they are also considered shaded areas.
Finally, we would like the City to affirm that outside of the shaded areas, including sidewalks adjacent to the shaded areas, free speech activities may take place as detailed in the City’s permit process under Chapter 3.50.
2. The Permit Process
Parsing with great difficulty through what appears to be the City’s attempt to change the permit process for free speech activities during the Olympics, we have identified two serious constitutional defects.
First, the process does not provide any time limits. 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).
Second, the process grants the decisionmaker unbridled discretion. The original process, outlined in Chapter 3.50.130, requires the special events coordinator to grant an advanced planned free speech permit if the application met three objective standards regarding arterial routes, interference with other events, and movement of emergency vehicles. During the Olympics, it appears the City plans to substitute this limited decision-making authority of the special events coordinator with Chapter 3.52 concerning Large Scale Special Events of National or International Significance. Instead of delineating objective and specific standards and mandating the issuance of a permit if those standards are met, Chapter 3.52.040(C)(3) states that the mayor will “review requests from the applicant for a special events permit under Chapter 3.50” for locations for free speech activities, “taking into account the City’s interest in protecting health, safety, and welfare of the public and in not adversely affecting residential areas.” Chapter 3.52.030 refers to an “advisory committee” that will provide “technical advice and recommendations to the mayor regarding decisions to be made by the mayor concerning large scale special events.” In your August 24, 2001 letter, you refer to this section as creating the “Olympic Omnibus Advisory Committee” in charge of reviewing free speech applications on a case-by-case basis. Chapter 3.52 does not contain an appeal process if a permit is denied, and to the extent the appeals process detailed in Chapter 3.50 applies, that process includes participation of the City Attorney (already on the “advisory committee”) and a final determination to be made by the mayor, who, incidentally, grants or denies the permit in the first instance under the new plan. Therefore, no independent, objective review of the permit denial is provided under the new scheme.
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 exactly like the City’s new permit process, permitting decisions to grant or deny a parade permit to be made 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 may impose such other terms and conditions as deemed necessary on a permit. 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).
In contravention of these important principles, the City’s new permitting process impermissibly replaces the objective test in Chapter 3.50 with the subjective, discretionary and unreviewable decision of the mayor. That is simply unacceptable and, if left unchanged in the final plan, would create the grounds for a facial challenge to the new permitting scheme. See Forsyth, 505 U.S. at 129-30.
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 during the Olympics. We offer these suggestions in hopes that unnecessary litigation can be avoided.
Janelle P. Eurick
Stephen C. Clark
cc: Mayor Anderson