Federal appeals panel upholds Chicago park permit rules

Wednesday, September 20, 2000

Regulations governing the issuance of permits for demonstrations in Chicago public parks do not violate the First Amendment, a federal appeals court panel has ruled.

The regulations require that a permit be obtained for any assembly, parade, demonstration, sporting event or gathering of 50 or more people.

The Windy City Hemp Development Board, which advocates the repeal of anti-marijuana laws, challenged the regulations on their face in federal court in 1997.

After a federal district court rejected their arguments, they appealed to the 7th U.S. Circuit Court of Appeals, which affirmed the lower court's decision.

“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,” the panel wrote in its Sept. 14 opinion in Thomas v. Chicago Park District.

“Parks are primarily for recreation rather than for political and ideological agitation,” the panel wrote. “They cannot be preserved in the primary use for which they are intended if any group can hold a rally of any size and length at any time with amplified sound of any volume.”

The plaintiffs had argued that the language of the regulations allowed park officials to deny permits on political grounds. One regulation said the park district could deny permits because of misrepresentation, failure to pay the requisite fee, previous damage to property or other grounds.

The appeals court reasoned that if “this discretionary feature of the regulation” were eliminated, there would be an even greater restriction on speech. The panel reasoned that the discretionary nature of the regulations actually furthered free-speech interests by allowing park officials to make exceptions for marginal groups.

The plaintiffs also contended that the permit regulations were unconstitutional, in part because they require applicants to obtain liability insurance to indemnify the park district for damages that might result from a riot.

The plaintiffs contended that because violence to person or property is more likely to occur during controversial events, the insurance requirement amounts to a heckler's veto on unpopular speech.

The appeals court called this argument “ingenious” but rejected it anyway, writing: “The required amount and the cost of the insurance depend only on the size of the event and the nature of the facilities involved in it.”

The plaintiffs also argued the regulations were unconstitutional because they did not contain the necessary procedural safeguard requiring a reviewing court to consider a permit denial within a specified period of time.

The appeals court noted that “a number of cases hold that judicial review of the denial of a permit must indeed be 'deadlined.' ” However, the panel distinguished those cases as “special licensing regimes for sexually oriented businesses.”

“The government's evident concern with the content of the speech disseminated by such businesses argues for greater judicial vigilance than in time, place and manner cases,” the panel wrote.

Wayne Giampietro, attorney for the plaintiffs, said he was already preparing a petition for full-panel review. He says the opinion conflicts with prior case law in the 7th Circuit.

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