The Volokh Conspiracy
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From American Patriot Express v. City of Glens Falls, decided Wednesday by Judge Lawrence E. Kahn (N.D.N.Y.):
Glens Falls City Code § 87 … regulates "demonstrations," defined as "pre-planned gathering[s] of 25 or more persons … convene[d] for the purpose of a public exhibition including a procession, parade, protest, picket, march or rally" on "public" property, defined as "any place to which the public has unrestricted access," excluding indoor spaces.
Any "person, corporation, partnership or other entity" that "hold[s] or cause[s] to be held" any "demonstration," as defined above, anywhere on "public" property, as defined, must first acquire a permit. Section 87-4(A) provides 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." …
Plaintiffs are a political organization with a conservative mission, and a collection of people who frequently engage in protests in Glens Falls in support of police, President Donald Trump, and United States Congresswoman Elise Stefanik, as well as counter-protests against left-wing demonstrators, and who plan to continue doing so….
Plaintiffs have, on at least one instance, refrained from protesting because the delay inherent in the maximum 28-day review period precluded their protest. Specifically, on June 3, when Sherman learned that a planned Black Lives Matter ("BLM") protest was to occur on June 5, Plaintiffs wished to organize a simultaneous counter-protest for but refrained from doing so, because they believed that § 87 required a permit for this counter-protest and that § 87's 28-day permit processing period precluded their acquisition of a permit on two days' notice….
At the time that they filed the Complaint and Motion, Plaintiffs planned to stage a protest countering the message of the June 5 BLM protest, as soon as possible. At that demonstration, protesters were to advocate in favor of police and display political signs in support of Trump and Stefanik. Plaintiffs anticipated that the demonstration would be attended by more than twenty-five people. The rally was "time sensitive," because "plaintiffs want[ed] to send an important message to police at a time when they and their reputation is under attack." …
The court held that the permitting process, with its up-to-28-day delay, was unconstitutional:
A delay in granting a permit to engage in a demonstration can amount to censorship, regardless of whether the permit is ultimately granted or denied. When a speaker "wishes to take a public position on a pressing public issue … the time required to obtain approval may prevent him or her from doing so until after the public issue is settled[.]" … [C]ourts have invalidated advance notice requirements (requiring that demonstrators apply for a permit a certain amount of time prior to an intended demonstration) of comparable length on the ground that such requirements censored spontaneous speech and were not narrowly tailored to meet similar public safety concerns to those at issue in this case….
The truism that administrative processing imposes delays that burden spontaneous speech is highlighted by the example permit application that Defendants attach as an exhibit to their Response. The person who filed this application, who sought to hold a protest on June 5, 2020, filed on May 2, 2020. Practically, a prospective protester must file this long in advance to ensure that she is able to protest on her planned date, because she must account for the possibility that her application will take 28 days to be approved (assuming that it does not need to be revised, which will lengthen the processing period by seven days, see § 87-4(C), and assuming that the application is not denied, necessitating an administrative appeal that likewise lasts seven days, § 87-4(E))….
Defendants argue that the small physical size of Glens Falls (3.8 square miles) and the small size of its police force (thirty officers) justifies a longer permit-processing period than might be constitutional in a larger city. To the extent that Glens Falls' relatively small police force allows it to accommodate fewer simultaneous protests on short notice than, say, Chicago, it still seems implausible that twenty-eight days of preparation time for any protest anywhere in the town is justified by this resource limitation…. [I]t is conceivable that the relatively limited staff and resources devoted to processing applications could necessitate longer processing times than in, for instance, Chicago, if there were a substantial number of permit applications for Glens Falls officials to review. But Defendants point to only a single permit application filed in the several months since the ordinance was passed, and do not otherwise suggest that the Glens Falls government has been inundated with permit requests….
[Moreover], under § 87-4(A), there are no standards constraining the exercise of discretion in the decision to delay a permit beyond fourteen days, let alone "narrow, objective, and definite" ones, and the clerk is required only to provide notice of, and not to explain, a delay beyond fourteen days. Section 87-4(A) states simply that an application will be processed in fourteen days or, with notice, in up to twenty-eight days. § 87-4(A). Such limitless discretion is prohibited under the First Amendment, because "it allows officials to suppress viewpoints in surreptitious ways that are difficult to detect." A politically biased Glens Falls government employee could, entirely undetected, hinder an applicant's political activism by unnecessarily delaying an application for up to twenty-eight days, without justifying this decision by reference to any statutory standards….
The court also struck down another provision in the ordinance, which apparently banned the use of signs at demonstrations. This provision, the court held, was "a comprehensive prohibition on speech" that didn't "leave open ample alternatives for communication."
And it held that a separate provision imposing strict liability for violations was also unconstitutional:
Strict liability is disfavored for criminal penalties when First Amendment concerns are implicated, and a knowledge requirement is necessary for any sanctions provision that might chill speech…. As a problematic example of how this strict liability sanction provision might operate, the Court considers a situation in which an organizer arranges a protest that she reasonably anticipates will be attended by fewer than twenty-five people but that is actually attended by twenty-five or more. In such a situation, it appears that … such an organizer could be subject to criminal penalties despite her lack of intent to hold a "demonstration" to which permit requirements apply.
The problematic consequence of strict liability in the context of regulations burdening speech is that the potential violator (in this case, a demonstration organizer) will err on the side of self-censorship in order to steer well clear of the possibility that she will be sanctioned for a violation that she accidentally commits. See Smith v. California (1959) ("For if the bookseller is criminally liable [for obscenity] without knowledge of the contents, and the [anti-obscenity] ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature."). Mindful of applicable sanctions, an organizer may, for instance, rather than simply seeking a permit for public gatherings she anticipates will be attended by at least twenty-five people, seek a permit for any public gatherings she organizes, to insure against the possibility that a gathering will unexpectedly turn out to be attended by at least twenty-five people. She may do this despite the fact that she unambiguously has both a constitutional right to organize small gatherings without acquiring a permit, and a statutory right to do so under § 87….