How far can cities go in controlling protests?
Case before high court argues whether free-speech rights extend to permit process.
WASHINGTON — The Windy City Hemp Development Board makes no secret of its public-policy positions. Members believe marijuana should be legalized. They also believe they have a right to advocate their position by holding protest rallies in public parks.
But in March 1997, the Chicago Park District turned down the group's application for a rally permit.
Members responded with a lawsuit, claiming that the park-permit process in Chicago was being used as a form of censorship in violation of the First Amendment.
The city says the permit denial had nothing to do with the group's pro-marijuana message, but was based on permit violations at an earlier rally.
The resulting case, Thomas v. Chicago Park District, has touched off a debate over the free-speech implications of government efforts to regulate parks and streets.
Today, the debate arrives at the US Supreme Court, where the justices must decide whether denial of the rally permit was a valid exercise of a local licensing scheme designed to run a park smoothly - or whether the denial amounts to an effort by the government to muzzle the Hemp Development Board by preventing it from holding rallies in a city park.
Free-speech advocates are hoping the justices use the case to make clear that First Amendment protections extend to government-permit regulations. Similar decisions have been written by federal-appeals judges in cases in New York and Gainesville, Fla.
"Core political speech is the center of the First Amendment," says Wayne Giampietro, a Chicago lawyer representing plaintiff Caren Cronk Thomas and the Hemp Board. "It is certainly one of the most precious things that we have, and no government agency is going to be allowed to cut it back in even the slightest way."
On the other side, city officials are watching the Chicago case to see to what extent they may regulate park and city street operations without running afoul of the Constitution. In addition, the case could help identify constitutionally permissible ways to control large and potentially violent demonstrations. Such protests marred the World Trade Organization meeting in Seattle in 1999 and prompted a massive police presence at a Washington, D.C., demonstration earlier this year.
"Like almost any big city or the national parks, the Chicago Park District has a system of regulations to control the multiple uses that people want to make of the parks," says Steven Weiss, a lawyer for the Chicago Park District. "The denial of the permit has nothing to do with the message that was being advocated."
Mr. Weiss says city officials were unaware of the Hemp Board's political message. He says that at the time of the denial, the group's application was signed simply "Ad Hoc Coalition."
How the justices will view the case is uncertain, legal analysts say, with no clear majority on any side of the issue.
One key will be how the justices view the action by Chicago park officials. Are the permit regulations simply a time, place, and manner restriction enforced by city officials without regard to the type of rally being planned? Or do the park district's actions amount to a form of censorship?
In addition, the justices must consider whether permit denials should be afforded special, expedited access to a judge. The judge's role would be to ensure that the permit denial process was in accord with the free-speech guarantees of the US Constitution.
A unanimous three-judge panel of the Seventh US Circuit Court of Appeals in Chicago ruled in September of last year that the park's permit denial was not a form of censorship.
"It is the censor's business to make a judgment about the propriety of the content or message of the proposed expressive activity," Judge Richard Posner writes in his decision. "The regulation here does not authorize any judgment about the content of any speeches."
Instead, the appeals court found that the Chicago Park District was engaged in the business of regulating access to the park, rather than preventing access to targeted permit applicants.
"A park is a limited space, and to allow unregulated access to all comers could easily reduce rather than enlarge the park's utility as a forum for speech," Mr. Posner writes. "Just imagine two rallies held at the same time in the same park area using public-address systems that drowned out each other's speakers."
Lawyers for the Hemp Board disagree with Posner's analysis. "A government must never be allowed to decide who gets to speak in a public forum and who doesn't," writes Orlando attorney Richard Wilson in his brief on behalf of the Hemp Board.
"First Amendment jurisprudence has been turned on its ear," he says. "Unless [Posner's] decision is reversed, political speakers whose message may be at odds with the current bureaucratic 'party line' will face so many obstacles that many will be silenced."
Lani Williams is a lawyer with the International Municipal Lawyers Association in Washington. She says city officials need leeway to be able to run their cities without having to accommodate every group that wants to hold a rally.
"The First Amendment doesn't guarantee you the right to express your opinion wherever, and however, and whenever you want. The First Amendment still has to be balanced with other interests," she says. "The position of the Hemp Board is tantamount to saying that we can come along and close down your streets whenever we want to have a parade. That is unworkable."
A decision in the case is expected by next June.