Indiana Pro-Pot Group Wins Free-Speech Battle

CHICAGO (CN) – An Indiana county violated a pro-marijuana group’s free-speech rights when it denied the group a permit to demonstrate on county courthouse grounds, the Seventh Circuit ruled.

Last year, Higher Society of Indiana sued Tippecanoe County for violating its First Amendment rights after denying the group’s request to hold a rally on the steps of the county courthouse.

The county’s policy allows public rallies and other activities on courthouse property only if sponsored by one or more of the county commissioners and approved by the entire county board.

Several other groups have won county approval for the use of courthouse grounds, including Round the Fountain Art Fair, Planned Parenthood and a march in support of Syrian refugees.

A federal judge granted Higher Society, which is represented by the American Civil Liberties Union, a preliminary injunction in December, finding that “the county candidly admitted that the reason it did not sponsor the Higher Society’s rally was because it didn’t agree with the group’s message.”

During oral arguments in April, Tippecanoe County attorney Douglas Masson denied conceding that the county discriminated against Higher Society based on the content of its speech.

“It is not so much that the county disagrees with Higher Society’s message, but that the county is not willing to take a position on their speech,” he told the Seventh Circuit panel.

But the Seventh Circuit found Wednesday that Tippecanoe County had indeed admitted discrimination, and it affirmed the district court’s grant of a preliminary injunction.

“The county has conceded – in the district court, in its brief, and at oral argument – that its policy is not viewpoint-neutral. This concession means that its policy would be unconstitutional even under the most restrictive forum analysis,” Judge Daniel Manion said, writing for the three-judge panel. “Therefore, as the County acknowledged at oral argument, the only way it can win this case is if the events it sponsors on the courthouse grounds are government speech.”

But the county exercises no control over the content of the art shown at the annual art fair, so the event cannot be considered government speech, nor would a reasonable person attribute to the government the views expressed at a protest on public property.

“We understand that the County is in a difficult position. It would like to open the courthouse grounds to some events that it believes add cultural or civic value to the community, yet it doesn’t want to create a public forum for everything under the sun,” Manion said. “It may still be possible for the County to accommodate some of its concerns (such as maintaining the Art Fair) while closing the grounds to Higher Society’s rally and not violating the First Amendment, but the current policy will not suffice.” (Parentheses in original.)

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