Pro-marijuana group prevails in challenge of city’s parade-permit laws

Friday, October 27, 2000

A Florida-based pro-marijuana group has prevailed before a federal appeals court panel in its First Amendment challenge to Gainesville, Fla., city laws regulating parade permits.

Cannabis Action Network Inc., which advocates the repeal of laws criminalizing marijuana, sued in federal court in 1995 after the Gainesville city manager denied the group an event permit, a street-closing permit and a sound-amplification permit.

CAN alleged that the permit ordinances failed to contain the necessary procedural safeguards outlined by the Supreme Court in its 1965 decision Freedman v. Maryland.

A federal judge issued a preliminary injunction in December 1995, requiring the city to issue all three permits. The group held its annual rally on December 9, 1995.

However, the group's First Amendment lawsuit continued in the federal courts. In 1998 the district court entered a final judgment in favor of CAN with respect to the city's original street-closing ordinance.

However, the district court ruled that the city's sound ordinance and amended street-closing ordinance were constitutional. (The city had amended its street-closing ordinance after CAN filed its suit to provide a specific time frame during which city officials must either issue or deny a permit.)

On appeal, a three-judge panel of the 11th U.S. Circuit Court of Appeals ruled this week in Cannabis Action Network v. City of Gainesville that the amended street-closing and sound-permit ordinances were unconstitutional.

The panel analyzed both permit ordinances under the Supreme Court's Freedman decision. In Freedman, the high court ruled that laws must contain three procedural safeguards in order to ensure the protection of First Amendment rights in licensing and permit cases:

Upon denial of a permit, the censor must bear the burden of initiating legal proceedings to prevent the applicant from holding the event and must bear the burden of proof in court.

Any restraint on expression prior to a ruling by a judge can be imposed only for a specified and brief time period.

There must be an assurance of prompt judicial review in the event a permit is erroneously denied.

The appeals court panel first examined the constitutionality of the sound-amplification permit, which allows the city manager to exempt special events from a general ban on sound amplification.

The lower court had ruled that the law was constitutional because it did not grant city officials unfettered discretion to ban speech but just to “refuse to allow amplification of sound.”

The 11th Circuit panel rejected this reasoning, citing the Supreme Court's 1948 decision Saia v. New York in which the high court struck down a city law that forbade the use of all sound-amplification devices, writing that “loud-speakers are today indispensable instruments of effective public speech.”

The panel also noted that the sound ordinance failed to meet the requirements of the second Freedman factor. “Even a cursory examination of the City's Sound Ordinance reveals that it does not specify any time within which the city manager must issue or deny a sound amplification permit,” the panel wrote in its Oct. 24 opinion. “Furthermore, the ordinance does not obligate the city manager to make a decision at all, nor does it require the manager to notify the applicant of the decision.”

The 11th Circuit next analyzed the constitutionality of the city's street-closing ordinance, which provides: “It shall be unlawful for persons to assemble or congregate in crowds in such numbers as to block the use of any sidewalk or street of the city without a permit from the city manager.”

The ordinance provided that the city manager must either issue or deny the permit within five business days. This part of the ordinance satisfied the second Freedman requirement.

However, the appeals court panel determined that the ordinance did not satisfy the first Freedman factor — that the censor bear the burden of proof and initiate judicial action.

The city had argued that the Supreme Court's 1990 decision in FW/PBS v. City of Dallas made the first factor irrelevant.

In FW/PBS, the Supreme Court ruled that the first Freedman factor did not apply in the context of an adult-business license. In adult-business licensing cases, the high court ruled that the burden of obtaining a license should fall on the business operator.

The 11th Circuit distinguished an adult business owner from CAN: “In contrast, this case involves a non-profit, public interest group seeking a one-time permit to engage in non-profit, political activities, rather than a commercial enterprise seeking a license to engage in for-profit, continuous commercial activities.”

The ordinance provides that, in the event of a permit denial, the city manager will request that the city attorney go to court to obtain an order prohibiting the applicant from conducting the planned event.

The 11th Circuit panel found this wording insufficient to provide the necessary protection for expression: “The shift of discretion from the city manager, who made the decision, over to the city attorney makes little difference — the provision still lacks a guarantee that the city will satisfy its burden of initiating judicial proceedings.”

Gary Edinger, attorney for CAN, said, “We are pleased that the 11th Circuit applied all of the Freedman factors to political speech.”

Edinger believes the case could have a national impact and could affect the way other federal appeals courts analyze these issues.

“The Freedman factors are essential to protecting First Amendment freedoms,” he said, “because, even when dealing with a content-neutral ordinance, decision makers have abundant opportunities to discriminate against speech with which they disagree.”

Calls to the attorney that argued the case for the city were not returned.

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