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Wednesday, January 4, 2012

First Amendment Protects Protestors of Towing Ordinance

The 7th Circuit Court of Appeals recently held that city officials were not entitled to qualified immunity on a First Amendment challenge to city actions against protestors of a towing ordinance in Surita v. Hyde, No. 09-1165 (7th Cir. December 22, 2011). 

In 2002, the city amended its towing ordinance to allow police to seize and impound vehicles and to impose a $500 fine on persons driving without a valid license or proof of insurance. The towing ordinance generated a number of protests that it applied more harshly against minorities.  While dealing with protestors, the mayor barred a citizen from speaking at a city council until he apologized to a city employee for a previous verbal confrontation.  The police chief imposed a $1,500 fee for use of the city park to hold a protest rally regarding the ordinance, on the basis that more officers were needed for the rally because it was a protest as opposed to a rally in favor of a city ordinance.  Out of 530 events in a five-year period in the city, only one other event was required to pay a permit fee. 

Several individuals then sued the city, its mayor, and its police chief under §1983, alleging violations of their First Amendment rights of free speech, of assembly, and to petition government for redress of grievances.  The district court had denied qualified immunity to defendants who appealed to the 7th Circuit.  

The 7th Circuit first determined that audience time during city council meetings constituted a designated public forum and, as a result, the city had a limited ability to regulate expressive activity.  The court determined that the ban on the plaintiff's speech at the city council meeting was a content-based exclusion without any compelling interest in violation of the First Amendment.  As to the challenged permit fee, the court held that the fee was unconstitutional as a content-based regulation because it was determined on the basis of the content of the speech - in this case, because the event was a protest of the city's towing ordinance.  The defendants were denied qualified immunity. 


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