High court appears unreceptive to challenge of Chicago park-permit rules
By Tony Mauro
Special to freedomforum.org
The Supreme Court seemed unimpressed yesterday with complaints that Chicago's system for handling requests to demonstrate in city parks violates the First Amendment.
The court heard arguments in the case of Thomas v. Chicago Park District, in which a group seeking to stage pro-marijuana demonstrations challenged the permit process after repeatedly being denied permission to use city parks.
The case could have an impact on other kinds of permit procedures that affect First Amendment activities, especially regulations that cover adult businesses.
Richard Wilson, lawyer for the protesters, told the justices that Chicago's procedure does not provide for a speedy appeal and amounts to an unconstitutional "prior restraint" on unpopular but First Amendment-protected speech.
Wilson invoked the 1965 case of Freedman v. Maryland, which said that under some circumstances a flawed permit process could be viewed as a prior restraint. In Supreme Court doctrine, prior restraint when government prevents or censors speech before it occurs is usually viewed as the worst kind of First Amendment violation.
But several justices attacked Wilson for making the prior-restraint argument, preferring to view the Chicago permit process as a benign form of constitutionally permissible "time, place or manner" regulations that are necessary to keep multiple groups from using parks at the same time.
"Analytically, I suppose, it is a prior restraint," said Justice Anthony Kennedy. "But you're really stretching our precedents."
Chief Justice William Rehnquist would not even go as far as Kennedy. "You have to strain all over the place to say this is a prior restraint." He added, "This doesn't come close to a prior restraint."
Justice Ruth Bader Ginsburg also disputed Wilson's use of the Freedman precedent, which involved challenges to permit procedures in state court. "You prefer federal court," she told Wilson. "How would the Freedman scheme do any good at all?"
Wilson persisted, telling the court that the Chicago process allows city officials to arbitrarily "choose which people in line come forward" to gain a permit.
He also called public parks the classic public forum, where speech regulation should be at a minimum: "The power of government is most circumscribed in a public park."
David Strauss, representing Chicago, got a much friendlier reception from the justices. He said the city's procedure contained numerous safeguards to prevent arbitrary decision-making. If an applicant for a permit meets certain neutral criteria, he said, the permit must be given. "We are not only not concerned with the content of the speech, we are not concerned with whether there is speech at all."
Strauss also said it was "misleading to call it prior restraint," and asserted that Chicago's process does call for prompt review when a permit request is rejected.
In rebuttal, Wilson insisted, "There is no administrative procedure after denial, no prompt judicial review."
A decision in the case could come any time before the court adjourns next summer.
Tony Mauro covers the Supreme Court for American Lawyer Media and is a legal correspondent for the First Amendment Center.
Supreme Court upholds Chicago park-permit rules
Justices reject pro-marijuana group's arguments, ruling city ordinance 'furthers, rather than constricts, free speech.'
Supreme Court agrees to examine city's park-permit rules
Analysis Chicago case will give justices opportunity to decide when administrative procedure, licensing laws interfere too much with First Amendment rights.
2001-2002 Supreme Court term coverage
Analysis and other coverage of the 2001-2002 U.S. Supreme Court term.
Supreme Court to examine 5 First Amendment cases
Analysis School voucher controversy to take spotlight, but Internet pornography, adult bookstores and protest permits also will share stage.