Thomas, Caren & Windy City Hemp Development Bd. v. Chicago Park District

Thomas, Caren & Windy City Hemp Development Bd. v. Chicago Park District

By: Lauren Petty, Medill News ServiceQuestions presented

(1) Does immediate access to the courts following the denial of a permit for core political speech in a traditional public forum constitute prompt judicial review, as required by Freedman v. Maryland, without regard to the length of time allowed for judicial decision? (2) Must an ordinance requiring a permit for core political speech in a traditional public forum include each of the procedural safeguards established in Freedman v. Maryland, or is that case only applicable to sexually explicit speech presented by adult entertainment businesses? (3) Is a content-neutral ordinance that requires a permit for core political speech in a traditional public forum analyzed as a prior restraint or under the more deferential standard applicable to time, place, and manner regulations? (4) May a plaintiff bring a facial challenge to a permit ordinance that restricts political speech in a public forum without first having to prove that the ordinance has been unconstitutionally applied to him because of the government's hostility to the plaintiff or his proposed speech? (5) Can an ordinance requiring a permit for core political speech in a traditional public forum include unfettered discretion to issue or withhold permits?

Brief

In March 1997, Robert MacDonald applied to the Chicago Park District for a permit to hold a rally in Grant Park. MacDonald, who has since passed away, was an activist with the Windy City Hemp Development Board, seeking legalization of marijuana. He planned to hold a political rally to encourage law reform. The rally was to be held in Grant Park in conjunction with a downtown march, on Aug. 23, 1997.

The Park District denied his request, stating that MacDonald had failed to comply with the terms of two previous rally permits in 1996. MacDonald filed suit against the Park District, contending that the park district regulation requiring permits is unconstitutional and restricts his right to free speech.

MacDonald claimed that because the regulation requires permission to hold a political rally in a public forum, it imposes a prior restraint on free speech. To avoid being an unconstitutional prior restraint, it must be free of any vagueness or uncertainty that might enable the regulation to be enforced in any way that would deter or impede the guaranteed right of speech.

Lawyers for the Park District argued that the law does contain constitutional safeguards, including: the permit denial must be in writing, establish the grounds for denial and allow the applicant time to correct the problems. The lower court ruled that the law requiring permits is necessary and fair, and therefore constitutional.

MacDonald's lawyers appealed to the 7th Circuit Court of Appeals. But in June 1999, MacDonald died and the 7th Circuit Court allowed Caren Thomas and the Windy City Hemp Development Board to substitute as plaintiffs.

The appeal cited numerous problems with the permit regulation. The regulation requires that the applicants obtain liability insurance to relieve the Park District from any liability should the rally escalate into a riot. In the appeal, the Windy City Hemp Development Board argued that because violence incidental to a political rally is more likely to arise from an unpopular cause, the required insurance amounts to a "heckler's veto" and is not sufficient basis for restricting free speech.

The group also argued that the park district regulation requiring a permit is in effect a prior restraint and that its vagueness could permit the Park District to make decisions that are in violation of an applicant's constitutional rights. Also, cases of prior restraint are required to have judicial review in order to safeguard constitutional rights and this regulation does not provide any access to review.

While waiting for the case to come up before the appeals court, the Windy City Hemp Development Board continued its effort to hold demonstrations in Chicago. The group applied on Jan. 8, 1998 to hold a parade in the Loop on 11:00 a.m. on May 9. The City of Chicago rejected the parade route in the Loop, concluding that "the proposed activity would greatly interfere with traffic" and several other justifications derived from the city ordinance. The city proposed an alternate route down Columbus Drive.

Dissatisfied with the alternate route, once again the group filed suit, alleging that the City was in violation of its 1st Amendment rights. Caren Thomas, director of the Windy City Hemp Development Board, and a plaintiff in both suits, told the Chicago Tribune in March 2000, "If the city doesn't like your issue, they will not give you a proper venue to stage your protest."

The lower court ruled that the City was in violation of the rights guaranteed by the 1st Amendment. The court decided that although the ordinance did not provide the City with unlawful discretion to deny permits, it was unconstitutional because it lacked constitutional safeguards set forth in Freedman v. Maryland, a prior restraint case from 1965.

Both the City of Chicago and the board again filed appeals with the 7th Circuit Court of Appeals. The City disagreed with the court's ruling that any of the regulation was unconstitutional.

But before the 7th Circuit Court could get to the suit regarding the city regulation, they decided on the Chicago Park District regulation. On Sept. 14, 2000, a 7th Circuit Court of Appeals panel unanimously held that the Chicago Park District regulation requiring permits was constitutional.

"The regulation challenged here does not authorize any judgment about the content of any speeches or other expressive activity--their dangerousness, offensiveness, immorality, and so forth," wrote Judge Richard Posner for the court. "It is not even cleear that the regulation reduces the amount of speech. A park is a limited space, and to allow unregulated access to all comers could easily reduce rather than enlarge the park's utility as a forum for speech."

As to the plaintiff's charge that the "vagueness" of the regulation could restrict an applicant's speech, Posner used a specific aspect of the regulation to show that this vagueness can both work for and against the applicants. "An even clearer example is a provision of the ordinance waiving the required permit fee for events protected by the First Amendment. The plaintiffs complain that this is vague, but do not indicate how it could be made less vague yet encompass the myriad activities that the First Amendment has been held to protect. Curtailing speech is an odd way of protecting speech."

The court decided that the regulation's liability insurance requirement was not a restriction of speech because it is not influenced by the nature of the event. "The required amount and the cost of the insurance depend only on the size of the event and the nature of the facilities involved in it (a bandstand, stage, tents and so forth)," Posner wrote.

The decision acknowledges that the plaintiff's strongest objection is the regulation's failure to provide for judicial review of permit denials. But Posner reasoned, "The argument is based on a misreading of Freedman v. Maryland, which holds only that the government may not regulate the content of speech without judicial authorization and so does not extend to time, place and manner licensing systems."

The opinion concluded that mandatory judicial review is not necessary because an applicant can sue in federal court if he feels his case was not judged properly. While the plaintiff is concerned that the state courts will drag their feet, the court ruled that the "deadlined" judicial review that the Supreme Court has applied to licensing regimes for sexually oriented businesses is not warranted in this case.

"The permit requirement at issue here is far more general and so far as appears the permits that are denied do not relate to controversial or unpopular expression. Especially in the absence of any showing, which has not been attempted, that the Chicago Park District is trying to restrict the expression of unpopular ideas or that the state courts are not acting with reasonable promptitude on appeals from permit denials, a more relaxed attitude toward the pace of judicial review is warranted than in the case of regulation targeted at unpopular expression," Posner concluded the opinion.

In the other suit over Windy City Hemp Development Board's attempt to get a parade permit in downtown Chicago, a different 7th Circuit panel reversed the trial judge's ruling that the permit procedures were unconstitutional and held 2-1 on March 12, 2001 that the parade permit procedures were not a prior restraint.

"Chicago oversees parades and marches throughout the city to ensure not only the safety of people who regularly use these routes but also the safety of participants and parade-goers alike, and to allow for the prompt and efficient flow of traffic and emergency vehicles. This is a content-neutral time, place and manner restriction, justified by its purpose--not its content--and it is narrowly tailored to serve a significant governmental interest, while leaving open ample channelss of communication," wrote Judge Daniel Manion for the majority.

On May 29, 2001, the U.S. Supreme Court granted certiorari in the case against the Chicago Park District. Two weeks later, on June 11, lawyers for the Windy City Hemp Development Board filed a petition for a writ of certiorari with the Court, seeking review of the 7th Circuit's judgment in the parade permit case too.

On May 29, 2001, the U.S. Supreme Court granted certiorari in the case.

On Oct. 1, 2001, the Court granted permission to the U.S. Solicitor General to participate in the case and split the time for oral argument.

On Jan. 15, 2002, a unanimous Court held that Chicago's procedures for granting or denying park permits didn't infringe on the group's speech rights.

Justice Antonin Scalia wrote the opinion for the Court.