(from Maine Townsman, May 2002)
by Michael L. Stultz, Staff Attorney, MMA
The August/September 2001 issue of the Maine Townsman contained an article about the constitutionality of mass gathering ordinances. Since then, the United States Supreme Court delivered an opinion (in January) on whether a municipal park ordinance requiring individuals to obtain a permit before conducting large-scale events was constitutional. The case involved petitioners who applied to the Chicago Park District on several occasions for permits to hold rallies in support of the legalization of marijuana. The Park District granted some permits from the petitioners, and denied others. The denials led to a civil action against the Park District on the basis of discrimination under 42 U.S.C. § 1983.
In the case of Thomas et al v. Chicago Park District, No. 00-1249 (534 U.S.___2002), affirmed 227 F.3d 921 (7th Cir. 2000), the Court upheld as consistent with the First Amendment an ordinance enacted by the Park District that requires a person to obtain a permit in order to conduct a public assembly, parade, picnic, or other event involving more than 50 individuals. A permit is also required to engage in any activity such as creating or emitting any amplified sound. Under the ordinance, an application for permit is required to be processed in order of receipt, within 14 days, unless the review period is extended an additional 14 days (by written notice to the applicant). Applications can be denied on any of 13 specific grounds. When denied, the reasons for denial must be clearly set forth in writing. Where possible, instructions must be given to the applicant to assist them in curing defects in their application. If unsuccessful, an applicant has seven days to appeal their denial to the General Superintendent of the Park District, who, in turn, must respond within seven days. An affirmed denial opens an avenue for judicial review in state court.
In short, the Court determined that the permit process was a content-neutral, time, place and manner regulation of the use of a public forum. It noted that the Park District ordinance did not authorize the review of the content of an applicant’s speech, indeed, none of the 13 grounds for which a denial could be granted relates to speech content. The ordinance is directed to activity in the park, and not towards communication. All, regardless of the purpose, must apply for a permit if the 50-person limit will be exceeded. In the words of the Court, the “picnicker, and soccer player, no less than the political activist or parade marshal, must apply for a permit…[a]nd the object of the permit system (as plainly indicated by the permissible grounds for permit denial) is not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible under the Park District’s rules, and to assure financial accountability for damage caused by the event.”
Important to the municipality in this case was the fact that the discretion of the Park District officials was limited, by the terms of the ordinance, to considerations of public safety and the like. For lack of broad discretion in determining whether to grant or deny a permit, no official could discriminate on grounds of speech. Rather, the Court deemed actions of officials acting under the ordinance as strictly ministerial (non-discretionary). Such actions are the proper exercise of municipal police powers for “adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved."
There was no “whim of the administrator involved,” rather, the ordinance provided reasonable and definite standards that were narrowly drawn, and as well, were enforceable on review (if a denial were appealed). In other words and in summary, it is not a violation of civil liberties to regulate the use of a public forum where the purpose is to provide for its convenient use and to ensure the safety of the public.
Guidelines for Mass Gathering Ordinances (sidebar)
Eleven of the 13 reasons for denying permits contained in the Park District ordinance are listed below. These 11 reasons were specifically referenced in the Court’s opinion.
• “the application for permit (including any required attachments and submissions) is not fully completed and executed;
• the applicant has not tendered the required application fee with the application or has not tendered the required user fee, indemnification agreement, insurance certificate, or security deposit within the times prescribed by the General Superintendent;
• the application for permit contains a material falsehood or misrepresentation;
• the applicant is legally incompetent to contract or to sue and be sued;
• the applicant or the person on whose behalf the application for permit was made has on prior occasions damaged Park District property and has not paid in full for such damage, or ahs other outstanding and unpaid debts to the Park District;
• a fully executed prior application for permit for the same time and place has been received, and a permit has been or will be granted to a prior applicant authorizing uses or activities which do not reasonably permit multiple occupancy of the particular park or part hereof;
• the use or activity intended by the applicant would conflict with previously planned programs organized and conducted by the Park District and previously scheduled for the same time and place;
• the proposed use or activity is prohibited by or inconsistent with the classifications and uses of the park or part thereof designated pursuant to this chapter, Section C.1., above;
• the use or activity intended by the applicant would present an unreasonable danger to the health or safety of the applicant, or other users of the park, of Park District Employees or of the public;
• the applicant has not complied or cannot comply with application licensure requirements, ordinances or regulations of the Park District concerning the sale or offering for sale of any goods or services;
• the use or activity intended by the applicant is prohibited by law, by this Code and ordinances of the Park District, or by the regulations of the General Superintendent.”