Justices avoid appeals-process question in park-permit case

Wednesday, January 16, 2002

With remarkable speed and unanimity, the Supreme Court yesterday decided that Chicago's procedure for granting permits for demonstrations on city parkland did not violate the First Amendment.

Ruling in Thomas v. Chicago Park District, the court said that because the permit procedure is “content-neutral,” it does not have to have the kind of procedural safeguards required in other licensing schemes for First Amendment activities.

A group called the Windy City Hemp Development Board, which wanted to stage pro-marijuana demonstrations in city parks, claimed that the permit procedure was biased against controversial speech and did not have enough protection against abuse to satisfy the requirements of the court's leading precedent in the area, Freedman v. Maryland.

In that 1965 case, which involved a law that required that movies be submitted to a state censorship board before they could be licensed for display in theaters, the high court said licensing procedures for First Amendment activities must have checks and balances to safeguard against unconstitutional prior restraint.

One of the requirements of Freedman was that there be “expeditious judicial review” whenever a permit request is denied. First Amendment advocates — especially those who represent adult businesses that often run afoul of licensing ordinances — hoped that the Chicago case would flesh out whether that guarantee means a prompt judicial decision or merely prompt access to the courts to begin an appeal.

But that question — which the court sidestepped in a case last term that became moot, City News & Novelty, Inc. v. City of Waukesha — will have to wait for another case.

Yesterday's ruling, written by Justice Antonin Scalia, said the Chicago procedure did not even need to be analyzed under the rules of Freedman. As a result, he said the court would not reach the judicial-review issue.

“Freedman is inapposite because the licensing scheme at issue here is not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum,” wrote Scalia. “The Park District's ordinance does not authorize a licensor to pass judgment on the content of speech. None of the grounds for denying a permit has anything to do with what a speaker might say.”

Scalia went on to say that even a neutral procedure must not “stifle free expression.” But as he analyzed the Chicago ordinance, he found that the grounds for denying a permit were “reasonably specific and objective,” not subject to the whim of government officials. The ordinance allows for some flexibility, Scalia suggested, but “on balance, we think the permissive nature of the ordinance furthers, rather than constricts, free speech.”

The ruling was issued less than six weeks after the case was argued, and by a unanimous vote — which is rare in a case that rejects the First Amendment claim in a free-speech case. According to Ronald Collins, First Amendment Center scholar, the high court has rejected a free-speech claim unanimously and without concurring opinion only twice in the last half-century.

But it was clear from the Dec. 3 oral arguments that the justices were skeptical of the claim that the Chicago ordinance amounted to a prior restraint on free speech. The justices' decision not to deal with the judicial-review issue may also have made it easier for them to decide the case quickly.

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