CHICAGO (CN) — The Seventh Circuit honored 4/20 in its own way Thursday by hearing oral arguments in a pro-marijuana group’s free speech lawsuit against an Indiana county that tried to stop its courthouse rally.
Last year, Higher Society of Indiana sued Tippecanoe County for violating its First Amendment rights after it denied 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 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.”
On Thursday, 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 city 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.
Masson also argued that demonstrators have plenty of room to express their views on the sidewalk around the courthouse without mounting the stairs leading to the main entrance.
ACLU attorney Kenneth Falk, representing Higher Society, told the court, “The county is trying to have it both ways.”
“It wants to open up courthouse grounds to private groups with views that it agrees with while excluding groups with views it disagrees with,” Falk continued.
He argued that no one who saw Higher Society protesters outside the courthouse would be led to believe that Tippecanoe County had suddenly endorsed marijuana legalization, and stressed the importance of demonstrators’ desire to protest at the “center of government authority,” where people are prosecuted for drug offenses.
Judge Illana Rovner asked Falk why the county could not discriminate against demonstrators who advocated criminal activity, such as doing drugs.
Falk responded that Higher Society was not advocating crime, but a change in the law.
He acknowledged, however, that this would be “a very different case” if the county’s policy clearly delineated that kind of exception to the use of the courthouse grounds.
The panel was rounded out by Judge Daniel Manion, and U.S. District Judge Sharon Coleman, sitting by designation.
It is unclear when the Seventh Circuit will issue its decision in the case.