By Pranay Somayajula
In today’s heated political climate, there has been a resurgence in public protest as a primary way for people to air their grievances. This is a matter of special concern to cities. In fact, journalist and activist Sarah Jaffe said in a recent CityLab article that cities will become “protest hubs.”
We have already seen a significant shift in this direction, and it has had a profound impact on the way city governments operate. Cities should be aware of the limitations on their power to restrict speech and withhold permits for lawful assembly.
Cities’ power to restrict speech
It is well established by legal precedent that cities simply do not have blanket powers to restrict protected speech (i.e., speech that does not incite immediate violence or other lawless action) because of its message or subject matter. It is worth noting that in this context, “speech” refers not just to verbal expression, but to any kind of legal, expressive conduct.
However, while content-based regulation of protected speech is prohibited by the First Amendment, the Supreme Court has held that cities may impose reasonable restrictions on the time, place, and manner of protected speech, if these restrictions meet certain requirements.
First, such restrictions must be content-neutral, meaning that they are designed and applied without any regard to the content of the speech being restricted. Second, they must serve a “substantial government interest” and be narrowly tailored to specifically serve that interest. Finally, they must leave open an adequate number of alternative ways for people to spread the same message.
As noted above, not all speech is given these protections. Speech that incites violence and lawless action can be curtailed to maintain safety. In addition, exercise of speech rights does not permit lawlessness—such as destruction of property, trespass, or assault. When these occur, law enforcement may respond to safeguard life and property.
Permits and the ‘heckler’s veto’
What if a highly controversial group requests a permit to hold a parade on a city street? Is the city required to grant the permit, even though the rally is likely to draw a hostile reaction from the public? The answer is generally yes.
The refusal of a permit out of fear of public reaction has been held by courts to be unconstitutional, as such a refusal is ultimately based on the presumably objectionable content of the speech in question. The silencing of protected speech by a city in order to pre-empt public anger is known as the “heckler’s veto,” and is prohibited by the First Amendment.
However, when specific, credible threats of violence and lawlessness exist, free speech rights may need to give way to public safety concerns. In these cases, working closely with your city attorney is essential.
How cities can abide by the First Amendment
What can city governments do to avoid running afoul of freespeech protections when dealing with permit applications?
First, they can make sure that clear and thorough ordinances are in place to dictate the standards by which permit requests are processed and granted.
In addition, cities should be sure that any ordinance regarding the issuance of permits for demonstrations does not place too much arbitrary discretion in the hands of any one city official or group of officials. If it does, it might appear to be content-based restriction of protected speech.
Instead, when drafting permit ordinances, cities should take special care to articulate clear and objective standards for the issuance and denial of permits, the determination of fees, and the impartial application of regulations, making sure to avoid an inordinate concentration of discretion.
While cities have an obligation to preserve public safety and ensure the smooth operations of city government, they nevertheless have an equally important obligation to preserve and protect the right to freedom of expression and assembly afforded to citizens by the First Amendment. By following the guidelines listed above and consulting with the city attorney whenever a question arises, cities can effectively and fairly reconcile their duty to preserve public order and defend the Constitution.
Pranay Somayajula, a 12th-grade student at Mounds Park Academy, was a summer intern in the League of Minnesota Cities Loss Control Department. He aspires to be an attorney.
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