Protesting Vet Trumps Memorial Permit Policy

(CN) - Supervisors of an Indiana memorial cannot enforce a permit requirement that brought about the ejection of a protesting veteran and his young son, the 7th Circuit ruled.

Eric Smith and his 10-year-old son were expelled from the Soldiers and Sailors Monument at Monument Circle in downtown Indianapolis for not getting a permit before protesting a proposed United Nations arms treaty. The Indiana War Memorials Commission supervises the monuments and others throughout the city. A commission policy requires "even small groups" to obtain a permit before gathering on commission properties.

The American Civil Liberties Union sued the executive director of the Indiana War Memorials (IWM) Commission and two Indiana State Patrol Officers on Smith's behalf in 2012. Retired U.S. Air Force Brig. Gen. J. Stewart Goodwin is the commission's executive director, according to the IWM website.

Smith sought an injunction, preventing the enforcement of a policy he says violates the First Amendment.

Though a federal judge refused Smith an injunction, a three-judge panel of the Chicago-based federal appeals court reversed Tuesday.

Restrictions on speech in public places are allowed only if they meet specific criteria.

The 14-page opinion says "regulations that restrict speech do not comport with the First Amendment unless they are (1) content-neutral, (2) narrowly tailored to serve a significant government interest, and (3) leave open ample alternative channels of communication."

Smith had alleged that the permit for small groups of demonstrators is not "narrowly tailored" and that "the permit requirement is not content-neutral because the policy allows 'unbridled discretion' to the decision makers, inviting discrimination." He added the permit policy is overbroad, "a doctrine of First Amendment law that permits facial challenges when a regulation of speech is so broad that it prohibits a substantial amount of protected speech."

The commission argued the policy is necessary to "maintain order and to hold people accountable for any damage to commission property during an event."

It also claimed that the permit policy is a "moot" subject because it has been changed since denial of the injunction.

The unanimous appellate panel nevertheless deemed the policy still questionable.

"We conclude ... that the new policy retains the problematic features of the old, so Smith's appeal is not moot," Judge Richard Hamilton wrote for the court.

He noted the only real question in the case is whether Smith is able to show a likelihood of succeeding at trial. As expressed by Smith in his complaint, Hamilton said the policy does not meet criteria consistent with accepted restrictions.

To qualify as "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," according to the ruling.

"To disallow a protest attended by fewer than 15 people simply because the public was invited and no permit was obtained likely goes too far in restricting speech," Hamilton wrote. "Similarly, the five-hour limit on being at a commission property without a permit may be too restrictive, particularly as it appears to apply to lone individuals as well as to small groups."

He concluded: "Because Smith has made the necessary showing to obtain a preliminary injunction, the decision of the district court must be reversed."

Hamilton noted, however, the Seventh Circuit only concludes that "Smith appears likely to prove at trial that 15 is too small a number to trigger a permit requirement for Monument Circle" given its size and capacity.

Kenneth Falk, director of ACLU Indiana and counsel for Smith, praised the decision.

"One of the great freedoms given to us by the First Amendment is the ability for people to go to public places, like Monument Circle, parks and other public spaces and engage in peaceful assembly and protest free of unnecessary restrictions," Falk said in a statement.

ACLU Indiana Executive Director Jane Henegar added: "Hundreds of thousands of individuals visit Monument Circle every year. Requiring every single person, much less a veteran who has fought to protect our liberties, to apply for a permit to carry a protest sign is an unnecessary burden on the First Amendment."

Judges Richard Posner and Ann Claire Williams rounded out the panel.

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