Scott Mollen

Land Use—Court Reaffirms Injunction Against Enforcement of Municipal Code Regulating Demonstrations on Public Property—Conservative Group Wanted To Counter-Protest BLM Demonstration—Demonstration Permit Requirements Were Too Onerous and "Chilled" Free Speech

The plaintiffs commenced an action against a city and certain municipal officials (defendants) challenging the constitutionality of a City Code (§87). The plaintiffs asserted that §87 violated the First, Second and Fourteenth amendments to the U.S. Constitution. The defendants had moved for reconsideration of the court's prior decision and order granting the plaintiffs' motion for a preliminary injunction. The court denied the defendants' motion for reconsideration.

Section 87 regulates "demonstrations," which was defined as "pre-planned gatherings of 25 or more persons…convened for the purpose of a public exhibition including a procession, parade, protest, picket, march or rally," on "public" property. Public property was defined as "any place to which the public has unrestricted access," excluding indoor spaces.

The statute further provided that any person or other entity seeking to hold a demonstration on public property must first acquire a permit and that permit applications must be submitted to the city clerk and will be processed "in order of receipt and, in all cases decisions whether to grant or deny the application will be delivered within 14 days of application unless upon written notice to the applicant, a further 14-day extension is necessary."