Pubdate: Fri, 15 Jun 2001
Source: Staten Island Advance (NY)
Copyright: 2001 Advance Publication Inc.
Contact:  http://www.silive.com/
Details: http://www.mapinc.org/media/646
Bookmark: http://www.mapinc.org/pot.htm (Cannabis)

PROMOTING POT IN A PARK OR LIMITS OF FREE SPEECH

In March of 1997 the city of Chicago denied the late Robert MacDonald's 
application for a permit to hold a rally in Grant Park. His purpose was to 
promote the legalization of marijuana. Now his successors on the "Windy 
City Hemp Development Board" have persuaded the Supreme Court to look at 
the city's ordinance, and to ponder once more the limits that may be 
imposed upon free speech.

The case provides a classic example of the eternal conflict between 
individual freedom and public order. Here it is undisputed (1) that Grant 
Park is a public forum, (2) that the advocates of marijuana are engaged in 
core political speech, and (3) that Chicago has the power to regulate the 
time, place and manner of a rally in a park promoting pot.

Under the city ordinance a rally may be forbidden if the parks 
superintendent rules that the applicant has violated the conditions of a 
prior permit. One such violation is that the applicant has failed to pay 
for damage to public property at a rally in the past. A permit may be 
denied if persons had lingered in the park after 10 p.m. The petitioners 
cite other flaws in the law:

"There are no provisions for a hearing before or after a permit is denied. 
The applicant is not entitled to know who made the allegations, nor see any 
evidence of the alleged violations. He is not even allowed to attend 
whatever meeting or conference is held (if any) at which the decision to 
deny a permit is made."

Joan Fencik, general counsel for the park district, conceded at one point 
in the case that a permit may be denied regardless of who caused damage to 
public property or who lingered after the closing hour. At the discretion 
of park authorities, a lifetime ban may be imposed upon a particularly 
troublesome applicant. (MacDonald never won another permit.) The potential 
for indirect censorship clearly is present. Even U.S. Circuit Judge Richard 
Posner conceded that the system "indeed creates such a danger."

In an opinion last September, Posner nevertheless upheld the Chicago 
ordinance in full. He said:

"The regulation challenged here does not authorize any judgment about the 
content of any speeches or other expressive activity -- their 
dangerousness, offensiveness, immorality, and so forth. It is not even 
clear that the regulation reduces the amount of speech. A park is a limited 
space, and to allow unregulated access to all corners could easily reduce 
rather than enlarge the park's utility as a forum for speech. Just imagine 
two rallies held at the same time in the same park area using 
public-address systems that drowned out each other's speakers."

Posner found weighty interests on both sides of a constitutional balance.

"Thus in this case there is, on the one hand, a danger in giving officials 
broad discretion over which political rallies shall be permitted to be 
conducted on public property, because they will be tempted to exercise that 
discretion in favor of their political friends and against their political 
enemies -- and the advocates of legalizing the sale of marijuana have very 
few political friends.

"But, on the other hand, a permit requirement is a sine qua non of managing 
a park system in a way that will preserve the value of the parks for the 
general public. Parks are primarily for recreation rather than for 
political and ideological agitation. They cannot be preserved for the 
primary use for which they are intended if any group can hold a rally of 
any size and length of time with amplified sound of any volume."

It's difficult to disagree with Posner's measured summary of the conflict. 
The trouble lies in fashioning safeguards against the kind of potential 
abuse concealed in the ordinance.

The only safeguard that occurs to me lies in a provision ensuring timely 
judicial review of a denied application. This is easier said than done, for 
there may be many denials for many reasons, and the law moves in sluggish 
ways to work its will. I cannot suggest a bright line between liberty and 
order, and I doubt that one exists. It is not enough to say that Peter's 
right of free speech ends where John's nose begins. The issue here is far 
more complicated.

Posner's opinion in the 7th Circuit is in sharp conflict with an opinion 
last year in the 11th Circuit involving a pro-marijuana rally in 
Gainesville, Fla. It is time for the high court to try again. And after a 
while it will be time for the high court to try once more. And then try again.
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