Street Demonstrations: Instituting a Permit System

• Publication year: 1999
• Pages: 59
• Citation: Vol. 28 No. 5 Pg. 59

28 Colo.Law. 59 Colorado Lawyer 1999.

1999, May, Pg. 59. Street Demonstrations: Instituting a Permit System

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59

Vol. 28, No. 5, Pg. 59

The Colorado Lawyer
May 1999
Vol. 28, No. 5 [Page 59]

Specialty Law Columns
Government and Administrative Law News
Street Demonstrations: Instituting a Permit System
by Patricia S. Bangert

A written demonstration permit system can assist a local government in responding to controversial situations such as that faced by the Village of Skokie, Illinois, when a Nazi group held a rally in a park in an area populated by a large number of Holocaust survivors.1 In addition, a permit system will help the government respond to the more mundane, but more frequent, free speech issues it will inevitably encounter. Under a permit system, a municipality may enact ordinances that provide a process under which persons desiring to demonstrate can apply for and receive an appropriate permit from government officials

This article serves as a guide on how to institute a permit system for demonstrations. The term "guide" is carefully chosen because this is a very general discussion about the minimum requirements for such a system. Obviously specific provisions must be tailored to fit specific circumstances and must be studied carefully for constitutional validity. The article begins with an overview of the applicable law on the subject of regulation of free speech, then outlines a permit system that meets the legal requirements

Overview of the Law

The First Amendment to the United States Constitution provides that:

Congress shall make no law . . . [a]bridging the freedom of speech, or of the press, or the right of the people peacefully to assemble, and to petition the Government for a redress of grievances.

Article II, § 10 of the Colorado Constitution provides in relevant part:

No law shall be passed impairing the freedom of speech; every person shall be free to speak, write or publish whatever he will on any subject, being responsible for all abuse of that liberty . . .

This latter provision goes beyond the prohibition on government interference with speech contained in the First Amendment to include an affirmative declaration that a Colorado citizen "shall be free to speak, write or publish [whatever he will on any subject]. . . ."2 According to the Colorado Supreme Court in Bock v. Westminster Mall Company, the state has a "tradition of ensuring a broader liberty of speech."3 The court reaffirmed Colorado's heightened concern about free speech rights in Lewis v. Colorado Rockies Baseball Club.4

Under the First Amendment and the Colorado Constitution, constitutional guarantees of free speech amount to a single general rule and a multitude of exceptions. The rule is that anyone can say anything anywhere on public property at any time. Especially in the area of political speech, the courts zealously safeguard robust and unfettered debate.5

The courts have pointed out, however, a number of exceptions to this general rule of unlimited free speech. The U.S. Supreme Court said in Cox v. New Hampshire:

Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses. The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of the public highways has never been regarded as inconsistent with civil liberties. . . .6

The Colorado Supreme Court said the same in Denver Publishing Company v. City of Aurora:

While no doubt exists that Colorado has high regard for freedom of speech, in Bock, we specifically acknowledged the right of property owners "to impose reasonable time, place and manner restrictions on the conduct of petitioners' [speakers'] activity."7 [Citations omitted.]

Permit systems, by their very nature, can impose significant prior restraints on First Amendment activity. The U.S. Supreme Court, in Forsyth County v. Nationalist Movement, held that an ordinance requiring a permit and a fee before authorizing public speaking, parades, or assemblies in traditional public fora is a prior restraint on speech.8 The cases, however, have consistently upheld permit systems that contain provisions that represent reasonable restrictions on protected speech. The U.S. Supreme Court, again in Forsyth County, indicated that there is a "heavy presumption" against the validity of prior restraint, but 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. . . ."9

The constitutional legitimacy of any particular restriction is determined by several factors. Primary among those factors are: (1) the type of speech involved (whether it is protected by the First Amendment); (2) the location of the proposed speech (the type of government property on which the speech will occur); and (3) the character and content of the restriction proposed. Each of these factors is discussed below.

Type of Speech

The initial inquiry into the constitutional legitimacy of any restriction on speech begins with an analysis of the type of speech involved. If speech is "protected"?that is, it comes within the ambit of the First Amendment or the Colorado Constitution?the government has significantly less authority to restrict it than if it is not so protected.

The term "speech" encompasses both oral and written speech and expressive conduct. Protected speech is speech or conduct that conveys a message. In Spence v. Washington,10 the U.S. Supreme Court looked at both the intent of the speaker to convey a message and the perception of onlookers in receiving that message. There, the Court found that the display of an American flag with a peace symbol affixed thereupon was expressive conduct protected by the First Amendment. The Court also has found that wearing a black armband to protest the Vietnam War is protected speech,11 that erecting a tent city to show the plight of the homeless is expressive,12 and that the act of burning a flag is protected.13

It is sometimes easy to distinguish between protected and unprotected speech or conduct.14 An auto race is not protected conduct. The "People's Fair" is not a demonstration. A political rally does involve protected speech. A religious service is a demonstration, although a wedding is not.

On the other hand, it may be difficult to determine whether an activity is expressive. For example, a court in Massachusetts had to determine whether women sunbathing topless constituted protected First Amendment activity. The women argued that they were protesting a regulation of the U.S. Park Service on the Cape Cod National Seashore that allowed men to go shirtless, but did not allow women to do so. The judge, in a scholarly opinion, found that the sunbathing was probably not a protected activity, but, nevertheless, assumed First Amendment protection for purposes of his analysis. Ultimately, he found that the Park Service was reasonable in banning that particular form of protest.15

Forum

Case law indicates that the location of proposed speech...