Boulder County ACLU

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AMERICAN CIVIL LIBERTIES UNION of COLORADO Boulder County Chapter Judd Golden, Chair 303-442-6355 juddgolden@hotmail.com

June 14, 2012 To: Boulder City Attorney Boulder City Manager Boulder City Council Boulder Parks and Recreation Advisory Board

Re: Proposed Limits on First Amendment Usage of Boulder Parks and Public Places Boulders parks and public places are where people go to play, relax, socialize and sometimes, to protest, demonstrate, or march. The recently-rejected proposal by the Boulder City Attorney to amend the Boulder Municipal Code to impose extensive time, place and manner restrictions would severely limit the exercise of the constitutionally-guaranteed First Amendment rights of the public. The current proposal is summarized in an Agenda Item Memo to City Council of June 5, 2012, and is scheduled to be reviewed through the Summer and Fall. It makes a few changes from the earlier rejected draft, described in the Memo as: (1) clarification in the definition of the terms demonstration and public assembly to clarify that the regulations govern activities in city parks; (2) the addition of a permit exception for spontaneous events; and (3) the ability to apply for permits electronically. The Boulder County Chapter of the American Civil Liberties Union of Colorado (ACLU) urges the Boulder City Council to reject this current proposal. We propose the City instead adopt a limited and narrowly-drawn no-permit reservation system ordinance that would allow a group exclusive use of a specific park or public space at a specific time for First Amendment activity. Public parks and the public will be adequately protected by this system, and by the enforcement of existing ordinances. Background and summary As you know, the Boulder County ACLU has long been an advocate for the publics Constitutional rights to protest, demonstrate, and petition the government for redress of grievances without unreasonable government interference. In 2008 we persuaded the city attorneys office to instruct the Boulder Parks and Recreation Department not to improperly subject political demonstrators near the Municipal Building to the regulatory limits of the

park rules governing recreational, athletic and social events imposed by B.R.C., 8-3-14 Permits for Organized Events. So this would not happen again, we asked the City to create by ordinance a reservation systema non-required permit to allow a group exclusive use of a specific area at a specific time in letters to Council of August 1 and December 2, 2008. In 1992 the ACLU worked with the City to enact changes in the Pearl Street Mall rules that resulted in the current regulation scheme for use of tables, chairs, fixed signs and the like (advocacy adjuncts) in what are now called advocacy areas, B.R.C. 4-11-1 et seq. The recent proposal, presented by the City Attorney to the Parks and Recreation Advisory Board with little public notice and no consultation with the ACLU, backtracks on the distinction between political and recreational events and grossly distorts the reservation system the ACLU proposed in 2008. The current June 5 proposal had no significant community input or feedback. This proposal for extensive time, place, and manner restrictions on activity in Boulder parks and public places was recently unanimously opposed by Parks and Rec Board as unnecessary and unreasonably. We agree, and extend these objections to the proposed provisions that would regulate marches (parades). The agenda item memo for the City Attorneys initial proposal makes it clear that it is targeted at the Occupy demonstrators. But lots of other people demonstrate, protest and march or parade in various places around the city for many reasons. This proposal is an unreasonable overreaction, like the recently-enacted nighttime parks closure. This attempt to limit and restrict dissent and protest is contrary to Boulder's historic spirit of openness and tolerance. It infringes on the publics rights guaranteed under the First Amendment and the Colorado Constitution of free speech, assembly, and to petition the government for redress of grievances. These restrictions burden more speech than necessary to serve the questionable government interests that are cited in the agenda item memo and draft ordinance. Speech on matters of public concern in a public place, like the speech and assembly of Occupy protestors, cannot be restricted simply because it is upsetting or unwanted. It has long been recognized that public streets and sidewalks may be used for public assembly and debate. In public forums such as city parks, the government may not enact content-neutral restrictions on communicative activity unless the restrictions are narrowly tailored to serve a significant governmental interest and leave open ample alternative channels for communication. That simply is not the case here.

Boulder County Chapter of the ACLU of Colorado

While the proposed ordinance commendably borrows some parts of the 1993 Pearl Street Mall advocacy areas regulation scheme ordinance referenced above, as we asked the City to do in our 2008 letters, it goes to far, setting up too many administrative and practical barriers of time, place and manner. No permit or fee is now or has ever been required on the Downtown Mall for speaking, leafleting, picketing or exercising other First Amendment rights, as then - City Attorney Joe DeRaismes pointed out before the current Mall permit system was adopted. This system has worked well for nearly 20 years. No permit should be required for similar activity in Boulders parks and public places, with very limited exceptions. Specific objections to the City Attorneys proposal Restrictions on place of assembly and protest zones If we are reading the proposal correctly, it bans protests and demonstrations that possibly could attract more than 25 people in Boulder to five public park areas - all in central Boulder - unless the people stay on the public sidewalks. Although these parks are places where people often gather in downtown Boulder, the ACLU opposes the idea of forcing people to conduct their First Amendment activity where the government tells them. The recent trend to establish fenced protest zone cages at political conventions far from the object of protests have been some of the most egregious abuses of the spirit of free speech and expression. Protest zones are inimical to Boulders tradition of respect and tolerance of free speech and expression. Where a protest occurs is often an essential part of expressive speech. These socalled protest zones unreasonably diminish both the force and effect of many protests, demonstrations, vigils and marches. What if there is a reason to demonstrate at police headquarters? The jail? A particular public building? The site of a significant event that is outside central Boulder? Under the proposal, a permit would be required for five people to stand outside the Boulder Police Department. Protest zones are inimical to Boulders tradition of respect and tolerance of free speech and expression and should not be part of any regulatory scheme. Fees for cleanup, traffic control and law enforcement and deposit No fee or deposit should be required for assemblies or marches protected by the First Amendment, as distinguished from recreational, athletic or social events in the parks. People who violate the law while using parks or public spaces can be charged and prosecuted for his or her individual conduct.

Boulder County Chapter of the ACLU of Colorado

Size of First Amendment events Who is an organizer? As noted, the proposal required a permit for small as well as large protests, rallies, vigils, demonstrations or marches (parades) anything over 25 participants and attendees. This would unduly burden and discourage many smaller events. It is difficult or impossible for organizers to know how many people will show up and when, and for how long to free and open gatherings. This numerical limit is unreasonable and unenforceable. Who is an organizer? One or a number of people with the same idea or purpose? If multiple people mention on social media or through word of mouth that they plan to be at a certain place at a certain time, who is it? What if a story appears in the media or goes viral in social media that results in many people gathering at one place? What about a spontaneous public response to an event? The organizer has many obligations and duties in this proposal that are unduly burdensome and do little to protect the public interest. A more narrowly drawn ordinance, which the ACLU recommends, would require notice to the City only for organized events where at least 200 people are expected. Time of assemblies and marches It is unreasonable to restrict demonstrations or other events to 8 a.m. - 11 p.m. Demonstrators may want to catch the attention of commuters before 8 a.m. or may want to rally after 11 p.m. as part of their expressive speech. The recently-enacted nighttime park closure should not apply to bar demonstrators or protesters during these hours. As previously stated, public safety and City property still will be protected, as individuals can still be charged with violations of existing laws or ordinances. Park use damage deposit The June 5 proposal adds a mandatory damage deposit that is totally up to the discretion of the City Manager. This is unreasonable and burdensome. A deposit, if any, should only be required for organized events where at least 200 people are expected, with a provision that these cost be waived for those unable to pay. Application deadline The public should not have to ask for the governments advance consent to protest against it. An application deadline for anything other than very large events is unreasonable. Often demonstrators are reacting to a recent event, such as a government action, natural disaster, or something like the recent visit of the President. Demonstrations may be planned

Boulder County Chapter of the ACLU of Colorado

in a day or two, using social media and perhaps the flash mob technique. Or, today may simply be when people decide to engage in political or expressive speech. Spontaneity may be essential to the demonstrators message. The attempt in the June 5 proposal to accommodate this has many elements and conditions that still set up unreasonable and ill-defined administrative barriers. Few motivated to engage in spontaneous free speech are likely know how to comply. No deadline should be imposed except when an event is expected to draw 200 people or more, and then the deadline should be no more than 24 hours before the event. Delivering or mailing application The proposal on June 5 adds an online option, which was an obvious thing to do. But a permit or application should only be required for the very limited circumstances of a very large group or 200 or more, people should be allowed to file their applications online, using the citys web site, as well as in person or by mail. Use of entire park There are pros and cons in allowing a group to secure a no-permit reservation for an entire park, as it may limit others rights and access. One option would be to split large parks into two or more areas, allowing a group to get a permit for a designated area in the park, leaving the rest of the park for other groups. A permit for the whole park could be granted if an especially large number of people, such as 200 or more, are expected. Permit for adjuncts and signs A permit should be required for adjuncts only for canopies, tents and the like, not for chairs, tables, signs, etc. Particularly objectionable is the restriction of one sign of limited size. Signs, banners, posters and the like are essential to the expressive speech of many demonstrators and protesters. They should not be restricted in any way. City Managers discretion The proposal would grant the City Manager too much discretion in granting permits. This discretion should be narrowed considerably so that only serious threats to public health, safety and welfare can be a basis to impose conditions on First Amendment activity. For example, the issue on the Downtown Mall was about people being allowed to use chairs, tables, fixed signs and the like (advocacy adjuncts) to assist in their speech; the code unreasonably treated groups wanting to use the Mall for advocacy the same as nonprofit groups selling items or soliciting.

Boulder County Chapter of the ACLU of Colorado

Under the current ordinance, B.R.C. 4-11-1 et seq., a permit is now required on the Mall only for using advocacy adjuncts. There are special considerations on the Mall, a limited, crowded pedestrian area bordered by stores, restaurants and a big theater (hence the designation of advocacy spaces). These considerations do not apply to Boulders parks and public places. Conclusion The ACLU urges the City to limit any regulation on constitutionally protected First Amendment activities in City parks and other public spaces to a two-pronged system for demonstrations, protests, vigils, marches, processions and other similar activity, making a no-cost permit available at the option of a group or persons wishing to use an area for such activities. This essentially would be a reservation system, similar to scheme for advocacy adjuncts on the Downtown Mall, and as the ACLU proposed to the City in 2008. A group should not be required to have a permit unless, as on the Mall, it wants to guarantee use of a particular area at a specific time, or a very large group of 200 or more are reasonably expected, with notice of no more than 24 hours required. A permit should allow the holder to bump any demonstration without a permit for that same space. The reservation system on the Mall is elegant, and has worked well for nearly 20 years. It imposes few burdens on the part of demonstrators, and City officials seldom have to become involved administratively, except in the rare instance that a group feels the need to use a specific place at a specific time. The ACLU was surprised and disappointed by the Citys failure to consult the ACLU on this important civil liberties issue before presenting it to the Parks and Recreation Advisory Board in April. As detailed, the ACLU started a dialogue on this exact issue nearly four years ago. The City has often consulted with us over the past years, to the benefit of the public and City government, even on issues less squarely involving the First Amendment. Thank you for considering our views. Sincerely, /s/___________________________ Boulder County ACLU by Barry Satlow, Director and Judd Golden, Chapter Chair Enclosures Copies: ACLU of Colorado Boulder County ACLU Board of Director Media

Boulder County Chapter of the ACLU of Colorado