Protests, Parades and Public Assemblies - Key Constitutional Principles and Recent Developments Robert E. Hagemann Charlotte Senior Assistant City Attorney March 17, 2005

What We’ll Cover l Major Legal Concepts l Charlotte’s Ordinance l Miscellaneous Issues

Major Legal Concepts l Forum Analysis l Time, Place and Manner l Prior Restraint

Forum Analysis l Traditional Public Forum -streets, sidewalks, and parks -“have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions” Hague v. CIO, 307 U.S. 496, 515 (1939)

Forum Analysis (cont.) l Designated (limited) Public Forum –property government has voluntarily opened up for expressive activity –treated the same as traditional public forum

Forum Analysis (cont.) l Non-Public Forum –may be reserved for its intended purposes –regulation on speech must be reasonable and not an effort to suppress because officials oppose the speaker’s view

Time, Place, and Manner l content-neutral l serve a significant government interest l narrowly tailored l leave reasonable alternative avenues of communication

Prior Restraint l no unbridled discretion l decision within specified and reasonably short period of time l provide for prompt judicial review

Thomas v. Chicago Park District, 534 U.S. 316 (2002) l permit requirement for public assembly, parade, picnic, or other event of 50+ in a public park l 14 day review l administrative appeal with judicial review on certiorari

Thomas (cont.) l 13 grounds for denial including: –would present an unreasonable danger to health or safety l Petitioners claimed that all of the Freedman prior restraint doctrine applies – including deadline for judicial review and burden of going to court on the government

Thomas (cont.) l not directed at communicative activity l not subject-matter censorship l licensor not authorized to pass judgment on content l does not invoke the “procedural requirements” of the prior restraint doctrine

Thomas (cont.) l but even content-neutral TPM restrictions can be used to stifle speech l still need adequate standards to guide the permitting official’s decision and to enable effective judicial review l standards are adequate

City of Littleton v. Z.J. Gifts D-4, L.L.C., 541 U.S. 774 (2004) l does “prompt judicial review” mean prompt “access” or prompt “decision”? l prompt decision l satisfied by ordinary rules of judicial review

Charlotte’s Ordinance l development and presentation of the proposal l reaction by the public and elected officials l lessons learned

Charlotte’s Ordinance (cont.) l Picketing –less than 50 – no notice, no permit, just follow the rules –50 or more – 48 hour advance notice if organizer know or should have known

Charlotte’s Ordinance (cont.) l Public Assemblies and Parades –30 day advance application with exceptions –Thomas-like permitting criteria –costs and fees – administrative cost of processing application and reimbursement for policing street closures, internal security, and med tech – Stonewall criteria

Charlotte’s Ordinance (cont.) l administrative appeal –quasi-judicial appeal hearing w/in 5 days –review on certiorari in Superior Court – City will do everything in its power to expedite

Miscellaneous Issues l other city property and forum analysis l fees, insurance, indemnification and unbridled discretion l First Amendment rights of attendees and spectators

Questions?