by Rachel Greifenkamp
Eric Smith v. Executive Director of the Indiana War Memorials Commission
(Federal 7th Circuit Court of Appeals, February 4, 2014)
At Soldiers and Sailors Monument Circle in Indianapolis, a war veteran and his son were protesting a proposed United Nations arms treaty. The Monument Circle is an outdoor state‐run public property at the center of downtown. The protest was publicized by distributing a flier, but not a single person other than Smith and his son attended the protest. When the pair began the protest, a Commission employee asked them whether they had a permit (required for any demonstration where fourteen or more individuals are likely to be demonstrating). When they said that they did not, he suggested they move to municipal rather than state property immediately. Then two Indiana State Police officers threatened to arrest Smith if they did not leave. Smith believes that the First Amendment protects his right to demonstrate without a permit. He filed for a permanent injunction against the Commission on the grounds that its permit policy violates the Free Speech Clause of the First Amendment to the U.S. Constitution.
The government can in fact restrict the time, place, and manner of expression in a traditional public forum, which the Monument Circle obviously is. However, the restrictions only pass Constitutional muster if they are (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of communication. The U.S. Court of Appeals for the Seventh Circuit ruled in favor of Smith stating that the current permit policy is neither content-neutral nor narrowly tailored to serve a significant government interest.
Content neutral. A permit policy cannot invest “unbridled discretion” in the person who decides whether a permit will issue because excessive discretion can lead to discriminatory enforcement. The fact that the Commission had never denied a permit application in the past was considered by the court to be immaterial. The evidence indicated that Commission employees use unguided discretion to choose whether a group that did not obtain a permit in advance will be allowed to obtain one on the spot. Such a system invites abuse.
Narrowly tailored. A regulation “‘need not be the least restrictive or least intrusive means'” of furthering the government’s interest…but at the same time the government ‘may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.'” Whether a numerical limit on gathering without a permit is constitutional depends on the specifics of the space at issue because different spaces can accommodate groups of different sizes without interfering with orderly, fair use of the space; however, the court determined that “considering the size and layout of the space and the fact that groups of twenty-five may gather without a permit at Monument Circle to eat lunch, at least, Smith seems likely to succeed in showing that the fourteen-person limit on demonstrations without a permit is not narrowly tailored.” The court also found fault with the provision of the permit policy that requires a permit anytime the demonstration has been advertised or the public has been invited, even if the group ultimately is made up of fewer than fifteen people. To disallow a protest attended by fewer than fifteen people simply because the public was invited and no permit was obtained likely goes too far in restricting speech. Similarly, the five-hour time limit on being on Commission property without a permit may be too restrictive as it applies to lone individuals or small groups.