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ACLU of Utah Responds to Summit County

30 November 2001 Published in Legal Advocacy

ACLU of Utah Responds to Summit County.

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ACLU of Utah Responds to Summit County

November 30, 2001

David L. Thomas
Chief Deputy Attorney
Summit County
P.O. Box 128
Coalville, UT 84017

Re: Summit County Ordinance 425 Clarification of GRAMA Response

Dear Mr. Thomas,

Thank you for your letter dated November 5, 2001. We write to request additional clarification to inform our consideration of the constitutionality of Summit County’s plans to accommodate free speech during the Winter Games.

You make clear that even traditional public forums within the two-mile radius will be off limits to free speech activities, and you justify this by indicating that the two principal roads into the Kimball Junction area (SR 224 and Kilby Road) will be under heavy use during the games for spectator traffic. This begs the question of whether the County can properly decommission those traditional public forums. Will the roads be used for pedestrian traffic, or will they be closed partially or entirely to pedestrians and dedicated exclusively to vehicular traffic? If they will be used for pedestrian traffic, they must be open for protected First Amendment expressive activities, subject only to reasonable time, place and manner regulations narrowly tailored to ensuring safe and efficient pedestrian flow.

Further, you state that Ordinance 425 combined with Ordinance 193-A will apply to demonstrations of more than 20 persons. If this is the case, we have grave concerns over the constitutionality of the combined ordinances.

First, in Ordinance 193-A Chapter 3, before a permit can be granted the applicant must meet various conditions, including provisions for a crowd control fence, potable water, separate enclosed toilets, waste disposal methods, alcohol monitors, lighting for evening events, parking and parking personnel, trained security guards, or any other conditions that the county feels may be reasonable to protect the health and safety of the public but not that unreasonably interfere with First Amendment rights. On its face, this language imposes onerous pre-conditions on the public’s use of a public forum. More seriously, it vests Summit County with the power to forbid the use of a public forum for virtually any reason it might deem to be in the public’s health and safety interests. Such broad discretion to attach terms and conditions to a permit can be abused in a manner that could limit the use of public land by parties who hold views that the County disfavors – a result clearly at odds with the constitutional requirement that standards for granting or denying a permit be clear and objective. See City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 769 (1988).

Second, under Ordinance 425 (b)(1)&(5) a $50.00 permit fee is required along with a $500.00 refundable clean up deposit. Ordinance 193-A(b)(2) & (3) allows the Summit County Sheriff’s Department and the Summit County Health Department to impose additional fees for unknown sums. The Supreme Court generally condemns imposing fees as a condition to the exercise of First Amendment rights. See Harper v. Virginia State Board of Elections, 383 U.S. 663 (1966); Jones v. City of Opelika, 319 U.S. 103 (1943). A permit fee that is used to defray administrative costs is presumptively valid, but only to the extent that the fees are necessary as a means of offsetting expenses associated with the applications. Cox v. New Hampshire, 312 U.S. 569 (1941); Forsyth County v. The Nationalist Movement, 505 U.S. 123 (1992). The County has made no effort to demonstrate that the fees imposed are reasonably calculated to offset actual expenses. Moreover, the clean up deposit and other fees that could be assessed to protesters in Summit County may be prohibitive to most if not all demonstrators who are planning to protest in the designated areas in Summit County. "(F)reedom of speech ... (must be) available to all, not merely to those who can pay their own way." Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943). Other venue cities, such as West Valley City and Park City, have recognized an indigence waiver for application fees for demonstrations during the Olympics. Salt Lake City decided not to assess a permit fee for the use of any of the designated protest areas in the downtown area and the City makes it the responsibility of the demonstrators to clean up the designated public forum area in order to defray the costs of any city incurred clean up fees. We hope Summit County will also include an indigent waiver and other similar provisions in its ordinance so that all persons have equal access to the designated demonstration areas.

If Summit County truly wishes to accommodate free expression during the Olympic Games, as your letter suggests, the ordinance applying to expressive activities should be amended to address the concerns raised above. Please find attached a copy of the Park City Demonstrations Policy, which we consider to be a reasonable plan for accommodating First Amendment activities during the Olympics. We are willing to meet with you to help revise Summit County’s plan so as to minimize the potential for costly litigation. Please contact me at your earliest convenience if you are interested in such a meeting.

Sincerely, Janelle P. Eurick
Staff Attorney