Permit rules can discourage what should be lawful protest

Thursday, October 13, 2011

When we evaluate government’s efforts to regulate speech in public places, we usually start with whether the government is inappropriately favoring one message over another.

As the recent decision in Marcavage v. City of Chicago demonstrates, however, equally important is whether the government is imposing permit requirements that discourage certain speakers.

In Marcavage, the 7th U.S. Circuit Court of Appeals chose not to adopt the bright-line approach suggested by other federal appellate courts and held instead that small groups wishing to engage in expressive activity could in some cases be required to obtain a permit first.

Although the appellate court on Oct. 4 reversed a trial-court holding that the Metropolitan Pier and Exposition Authority in Chicago could require a group of five people to obtain a permit before demonstrating in  the city’s Gateway Park, it refused to reverse that holding outright. Instead, it remanded the case to the trial court to give the MPEA a chance to defend its permit requirement.

At issue in Marcavage were arrests of members of Repent America, an organization that desires “to proclaim the Gospel of Jesus Christ in the public square.” The members were arrested when, while protesting in several places during the 2006 Gay Games in Chicago, they refused to comply with police orders to move from busy sidewalks.

The trial court denied all of the protesters’ claims, finding that the officers’ directives did not violate the First Amendment because they were content-neutral, limited only to instances in which protesters were blocking pedestrian traffic, and left open other nearby public spaces for the protests.

On appeal, the 7th Circuit panel affirmed the trial court’s rulings as to all of the protest venues except Gateway Park. Gateway Park is different from the other places, the court said, because “it is a traditional public forum subject to heightened First Amendment protection” and because the officers were enforcing the MPEA’s written policy requiring anyone wishing to engage in undefined “non-commercial expressive activity” to obtain a permit beforehand.

Under the policy, a group of five or more wishing to so demonstrate must request a permit at least seven days before the day for which the permit is sought. Because the policy does not define “expressive activity,” it literally can be read to include everything from wearing matching T-shirts to picketing. The director of security then is to grant or deny the request within three business days. A smaller group (and presumably even one person) can request a permit at any time, and the director is to act on the application within one business day.

The director is to grant permits “on a first-come, first-served basis without reference to the content of the message to be expressed.” However, the director is to deny a permit if the expressive activity would violate the law, create a risk of injury or damage, interfere with vehicular or pedestrian traffic, interfere with previously permitted activities, impair the operations of the adjoining Navy Pier or present an unreasonable danger to health or safety.

Interestingly, the 7th Circuit did not address whether these criteria satisfied the U.S. Supreme Court’s requirement, announced in 1969 in Shuttlesworth v. City of Birmingham, that the discretion of public officials charged with permitting First Amendment activity be limited by “narrow, objective, and definite standards.” Instead, the court focused on whether the permit requirements could be enforced against a small group.

Recognizing that the policy “would arguably require a permit for the expressive activity of just one person,” the 7th Circuit nevertheless refused to follow rulings of the 4th, 5th, 6th, 8th and 9th Circuits, in which those courts “found permit requirements for groups of ten and under to be either unconstitutional or constitutionally suspect.” Instead, the court said the MPEA should have the chance to defend the policy in the trial court.

“Though we are inclined to agree with our sister circuits that a permit requirement is less likely to be content-neutral and narrowly tailored when it is intended to apply even to small groups,” the appellate court said, “we decline to hold that permit requirements for groups of any specified number are per se unconstitutional.”

Judge David Hamilton dissented from the court’s remand. Though he agreed with the majority that the court should not adopt a per se rule, he argued that the protesters waived this argument by failing to assert it in the trial court.

Noticeably absent from the court’s opinion is any description of the protesters’ message, which leads one to wonder whether the court was attempting to assure readers – and reassure itself – that the message was irrelevant to the court’s decision. As admirable as content neutrality might be, however, we cannot forget how important it is to protect angry, impassioned speech on the public square and that such speech is threatened by permit regulations that rob protest of spontaneity and require it to be organized.

One hopes that, on remand, the trial court will recall Shuttlesworth’s embrace of permit-less protest and grant at least small groups the right to exercise their First Amendment freedoms whenever they choose.

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