April 24, 2012 1:07 am

ACLU Report: When can government require a permit to protest?

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In some cases, government can require a permit as a condition of protest on public property. For example, government often can require a permit for parades in the streets, given the impact on vehicle traffic. Likewise, government often can require a permit for large protests in public parks and plazas, in order to ensure fairness among the various groups seeking to use the site.

On the other hand, the First Amendment generally bars government from requiring a permit when one person or a small group protest in a park, or when a group of any size protest on a public sidewalk in a manner that does not burden pedestrian or vehicle traffic. Such non-permitted protests might involve speeches, press conferences, signs, marches, chants, leaflets, expressive clothing, and efforts to speak with passersby. The absence of a permit for such protests simply does not burden any legitimate government interests. Thus, the Chicago Park District does not require a permit for gatherings in parks of fewer than 50 people. Likewise, the Chicago ordinance regulating public assembly does not require a permit for gatherings and marches on sidewalks that do not obstruct the normal flow of pedestrian traffic.

Moreover, if protesters gather in response to breaking news, the First Amendment requires an exception from the ordinary deadlines in the government’s permit process. Thus, in the Chicago ordinance requiring permit applications 15 days before a parade, and notice to the City five days before a sidewalk demonstration that would impede pedestrian traffic, there is an exemption for spontaneous responses to current events.

The First Amendment limits the kinds of permit fees and other financial burdens that government can impose on protesters. First, the charges cannot exceed the actual cost to government to regulate speech in the site. Second, government cannot charge protesters more when additional police are needed to control opponents of the protesters – that would be a kind of a “heckler’s veto.” Third, government cannot use an insurance requirement to bar a protest by a group that unsuccessfully attempted to obtain insurance. Fourth, there must be an exception for groups that cannot afford to pay the charges. For example, in the Chicago ordinance requiring certain parade organizers to obtain $1,000,000 in insurance, there is an exception where this would be “so financially burdensome that it would preclude” the application.

When Chicago law requires a permit to protest, and the First Amendment does not excuse the absence of a permit, protesters without a permit might be arrested or prosecuted.

Next Section: When else can government regulate the time, place, and manner of protest?

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