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Victory! 10th Circuit Protects Free Speech on Utah State Roads

This article was first published in the Liberty Reporter: 2015 Winter Newsletter >>

iMatter1On December 22, 2014, in a big victory for First Amendment rights, the Tenth Circuit Court of Appeals held that the Utah Department of Transportation’s insurance and indemnification requirements for permits to march on state roads violate the constitution and cannot be enforced. 

The case, called iMatter  v. UDOT, was brought by groups and individuals, many of them high schoolers, who planned several marches on State Street in Salt Lake City to raise awareness of and promote solutions to climate change.  Though the march organizers obtained event permits from Salt Lake City, they also needed permission from UDOT, since State Street is a state road.  UDOT, in turn, required that anyone seeking a permit to march on a state road obtain a general insurance policy for the event with $1 million per incident and $2 million aggregate coverage.  UDOT also required organizers to sign indemnification agreements to protect UDOT from any lawsuit related to the event.  These polices would have forced organizers to pay hundreds or thousands of dollars for private insurance and exposed them to unknown amounts of costs to defend UDOT from potential lawsuits.  These costs and risks deterred organizers from marching on State Street.  On two occasions, organizers decided to hold marches on the sidewalk along State Street, while other events were cancelled.  The plaintiffs, represented by the ACLU of Utah and the Utah Legal Clinic, brought suit in 2011 to challenge UDOT’s requirements.  In late 2013, the federal district court in Utah struck down the requirements, explaining that for various reasons, they violated the First Amendment.  The State appealed, sending the case to the Tenth Circuit in Denver.  (The arguments before the Tenth Circuit were covered in a travelogue in our last newsletter.) 

The Tenth Circuit upheld the district court’s decision.  The court explained that when a government policy burdens free speech, the First Amendment requires that the policy must be narrowly tailored to serve a government interest.  The insurance and indemnity requirements were not narrowly tailored.  Among other things, the Tenth Circuit reasoned that the First Amendment prevents parade organizers from liability for damages done by third parties out of their control, but the insurance prerequisite required organizers to protect the State against such damages.  The court also pointed out that in most, if not all cases, the State will be protected from liability for free speech events by governmental immunity and by the ability to bring lawsuits.  The court also rejected the State’s argument that UDOT’s requirements were narrowly tailored because organizers could have avoided them by marching on the sidewalk along State Street instead of on State Street.

We are thrilled with the Tenth Circuit’s decision.  It puts governments on further notice that they must use great caution when they consider policies that make it more difficult for people to express themselves in a public forum.  With this victory in hand and these requirements struck down, we hope to see more people “taking it to the streets” in Utah!

You can find out more about this case on our website at www.acluutah.org/legal-work/current-cases

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