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Thursday, February 6, 2014

Injunction Issued Against Policy Requiring Protest Permits in Traditional Public Forum

The Seventh Circuit Court of Appeals recently issued an injunction against enforcement of an Indianapolis memorial commission's policy that required a permit for events and protests as violating the First Amendment. Smith v. Executive Director of the Indiana War Memorials Commission

Eric Smith organized a protest of the Arms Trade Treaty at Monument Circle, home to the Soldiers and Sailors Monument in downtown Indianapolis. Although he publicized the event by distributing flyers, he and his son were the only people who attended the protest. An employee of the Indiana War Memorials Commission, the organization that supervises Monument Circle, approached him during the protest and asked if he had an event permit.  The Commission had a policy in place that required all groups, regardless of size, to obtain a permit before gathering on Commission properties. Smith responded that he did not have a permit, and that the First Amendment protected his right to demonstrate without a permit.  The police were called, and threatened to arrest him if he and his son did not leave - they chose to comply. He then filed suit against the Commission and the police officers who ordered him to leave, arguing that the Commission's permit policy violates the Free Speech Clause of the First Amendment.

The district court denied Smith's request for a preliminary injunction, finding that he did not demonstrate a reasonable likelihood of success on the merits. He then appealed to the Seventh Circuit.  On appeal, the Commission argued that the lawsuit was moot because it had subsequently amended the policy.  The amended policy "strongly suggested" that all events and gatherings submit an application for a facility use agreement prior to holding their events, although small gatherings of less than 15 people would be permitted "informal use" of Commission property without a permit.  Informal use did not include even small events where the public was invited, the event was advertised, or the event would last longer than five hours. The Seventh Circuit rejected the Commission's "mootness" argument, finding that the amended policy was still problematic because it gave too much discretion to Commission employees as to when a permit would be required.  The court also held that Monument Circle was a "traditional public forum" and the Commission's policy was not narrowly tailored to serve a significant government interest, as compared to policies adopted by other public bodies such as the policy adopted by the Chicago Park District that only requires a permit for gatherings of 50 people or more. The court also questioned the five hour limit on small events. 

In sum, the court determined that Smith had shown that the Commission's permit policy violates the First Amendment.  As a result, the court remanded the case back to the district court to issue a preliminary injunction against enforcement of the permit policy. 

Post Authored by Julie Tappendorf, Ancel Glink


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