Supreme Court agrees to examine city's park-permit rules
By Tony Mauro
Special to freedomforum.org
Last year, the Supreme Court took up a case that would help it decide when administrative procedure and licensing laws interfere too much with the First Amendment.
But that case, City News and Novelty Inc. v. City of Waukesha, fizzled when the court learned that the Wisconsin adult bookstore in question was no longer operating. On Jan. 17 of this year, the case was declared moot.
Yesterday, the justices agreed to consider another case from the Midwest that raises the same issue: Thomas v. Chicago Park District. This time, the case should lead to a decision from the court, later this year or next year.
Both cases involve the intersection of the First Amendment and local licensing procedures. Ordinarily, when a business a car wash, for example seeks a business permit or license and is denied, it goes through an unremarkable appeals process that could take months or years.
But when the business or permit application that is denied involves free-speech or assembly rights, then a First Amendment question arises: Does a lengthy appeals process amount to censorship or prior restraint? In two prior Supreme Court cases, Freedman v. Maryland and FW/PBS Inc. v. Dallas, the court suggested that appeals procedures for First Amendment activities needed to be tailored to guard against censorship. But the court has not made it clear whether that means quick access to the appeals process, or a quick decision on the merits.
In the case accepted by the court yesterday, members of a pro-marijuana group called the Windy City Hemp Development Board sued the Chicago Park District for denying its request for a permit to hold demonstrations in 1997.
The demonstrators challenged several features of the law requiring permits for demonstrations, including one that requires applicants to seek the permit at least 30 days in advance of the demonstration. They also fought a provision that requires groups to purchase $1 million in insurance to indemnify the park district against liability for damage that might result from violence triggered by the demonstration.
The protest group argued that since violence is more likely the more unpopular the cause, the insurance requirement amounts to an unconstitutional "heckler's veto" on speech.
A three-judge panel of the 7th U.S. Circuit Court of Appeals said in its ruling last September that the argument was ingenious but wrong, since the insurance requirement was the same for all kinds of permit holders, and not just reserved for controversial demonstrators.
But the group's strongest objections were directed at the appeal procedures, which it said were not fast or in depth enough to consider or preserve its First Amendment rights.
"You've got to have a quick appeals process," said Wayne Giampietro, lawyer for the hemp group, yesterday. "If the case sits there for five years, it doesn't do us any good."
The 7th Circuit panel, noting that appeals are available at both the state and federal court levels, said the procedure does not violate the First Amendment. Though the procedure may not meet all the needs of the group whose permit application was denied, the court said it was constitutional because it "does not require or permit the regulatory authority to evaluate the content or message of the activity regulated."
The appeals panel's ruling, written by Judge Richard Posner, also noted that past court rulings requiring a deadline for such appeals "involve special licensing regimes for sexually oriented businesses," where "special vigilance" may be required to insure that government is not dragging its heels because of the nature of the expressive activity.
But in the case before the court, Posner said, "The permit requirement at issue here is far more general and so far as appears the permits that are denied do not relate to controversial or unpopular expression. Especially in the absence of any showing, which has not been attempted, that the Chicago Park District is trying to restrict the expression of unpopular ideas or that the state courts are not acting with reasonable promptitude on appeals from permit denials, a more relaxed attitude toward the pace of judicial review is warranted than in the case of regulation targeted at unpopular expression."
Giampietro, who described the Posner ruling as "weird and squirrelly," said this aspect of it ends up giving "more First Amendment protection to adult sexual stuff than to the political speech we're involved in."
It is that aspect of the ruling that is likely to be the focus of the Supreme Court's inquiry, though the appeal includes the challenges to other aspects of the permit procedure as well.
Also at issue is whether the procedures should be reviewed under the highest, "strict scrutiny" standard used for restrictions on political speech, or merely as a "time, place or manner" regulation.
"Permits are OK. You don't want two groups demonstrating at the same place at the same time," says Giampietro. "But you have to look at the reasons why permits can be denied, to be sure it's not a subterfuge for suppressing unpopular speech."
The court will hear arguments in the case next fall.
Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.
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