Q: The city has drafted a new ordinance that requires six days notice and a permit to picket or demonstrate on main drags, and two-to-four days on smaller ones. Is this a violation of free speech rights/
A: Public streets are generally considered public forums — in fact, they have been called “‘the archetype of a traditional public forum.'” Gaudiya Vaishnava Soc. v. San Francisco, 952 F.2d 1059, 1065 (9th Cir. 1991) (quoting Frisby v. Schulz, 108 S. Ct. 2495, 2499 (1988). This means that when public streets are at issue, “the government’s authority to restrict speech is at a minimum.” Gaudiya, 952 F.2d at 1065.
In order to restrict speech in a public forum, the restrictions must be content-neutral and narrowly tailored to serve a significant government interest, and they must allow ample alternative channels of communication. Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983). Restrictions on speech in a public forum “must be justified without reference to the protected speech’s content.” ACLU v. City of Las Vegas, 466 F.3d 784, 792 (9th Cir. 2006).
Whether a permitting scheme for public demonstrations violates the First Amendment will generally depend on the specifics of the scheme. Because requiring a permit in advance of a demonstration entails restricting speech before that speech has occurred — which is known as a prior restraint — the constitutional scrutiny is particularly exacting. See, e.g., Service Employees Int’l Union, Local 660 v. Los Angeles, 114 F. Supp. 2d 966, 970 (C.D. Cal. 2000) (noting in context of analysis of demonstration permit ordinance review that “[g]overnment regulation of speech in traditional public for a is subject to the highest constitutional scrutiny” and that “[t]his is especially true where, as here, the government seeks to impose a prior restraint on speech”).
Permit schemes can run afoul of the constitution for many different reasons, including that the relevant regulations are over-broad or vague. For example, a federal court rejected a scheme for issuing permits for park use where permits were required for people who engaged in conduct “‘which has the effect, purpose or propensity to draw a crowd of onlookers.'” SEIU, 114 F. Supp. 2d at 973.
The court pointed out that “[b]y tying the permit requirement to the reaction of other park users, rather than the need for City services, the procedures necessarily discriminate against expressive speech generally and against certain types of speech specifically.” Id. at 974.
The court also said the language of the regulations was “insufficient to give any guidance to those who wish to exercise their First Amendment rights or those who seek to enforce the permit requirements” because, for example, there was no guidance as to how many people constituted a “crowd.” Id.
Relevant to one of the aspects of the proposed permitting scheme you reference below, courts have also rejected permitting schemes based on long advance notification requirements. “Procedures requiring advance notification have the potential to reduce speech drastically because they impose both a procedural hurdle of submitting an application and a temporal hurdle of waiting for a response. While certain demonstrations require notification so that the City may ensure peace and safety, a delicate balance must be reached to ensure that free speech is not unduly limited.” Id. at 973.
In that case, the court rejected a 40-day advance notice requirement. See also, e.g., NAACP, Western Region v. Richmond, 743 F.2d 1346, 1356 (9th Cir. 1984) (rejecting 20-day advance notice requirement where “[t]he government [made] almost no attempt to prove that a 20-day advance notice requirement is the least restrictive means of achieving its interest in regulating traffic” and noting that “[e]mpirically, most cities are able to protect their interests in traffic control with advance notice periods of substantially less than 20 days. San Francisco requires only 24 hours advance notice of parades. Boston has required three-day advance notice. … The mean advance notice period [in one scholarly study] was New York City’s 36 hour requirement.”) (internal citations omitted).
Whether a particular permitting scheme violates the First Amendment is a highly fact-intensive question, but I hope this information gives you a starting point for thinking about this particular proposed system.
Holme Roberts & Owen LLP is general counsel for the First Amendment Coalition and responds to First Amendment Coalition hotline inquiries. In responding to these inquiries, we can give general information regarding open government and speech issues but cannot provide specific legal advice or representation.