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ACLU-VA Issues Recommendations for Protest Permitting

Posted: Updated: Jan 25, 2018 05:36 PM
Protestors at the Unite the Right Rally in Charlottesville August 12, 2017 Protestors at the Unite the Right Rally in Charlottesville August 12, 2017
CHARLOTTESVILLE, Va. (WVIR) -

After the violence at the Unite the Right rally in Charlottesville last August, the city and state have been looking at new permitting rules for rallies.   

In November, Governor Terry McAuliffe put emergency rules into effect for rallies in Richmond. McAuliffe’s rules ban weapons, limit crowd sizes, and require a permit for gatherings of 10 or more people. Now the American Civil Liberties Union of Virginia is weighing in on regulations and how they may be infringing on people's rights.

Wednesday McAuliffe called for all final public comments on his rules before he makes them official. The ACLU-VA took that opportunity to issue its own list of recommendations for rally permits. Among them, the ACLU says permits should only be required for gatherings of 20 or more people. (See the full list of recommendations below.)

The group specifically cites the Robert E. Lee statue in Richmond, but says these guidelines can be used and amended by any county or city.

The ACLU-VA says it believes their recommendations are a balance between safety and respecting one's First Amendment right.

"We have to be vigilant about our First Amendment rights and our safety and we can do both and we can do so in a constitutionally acceptable way,” said ACLU-VA Executive Director Claire Guthrie Gastañaga.

The city of Charlottesville still hasn't made a final decision on the amending its permit process. City staff has recommended a 60 day minimum to file a permit for gatherings of 10 or more people. It also wants to ban open flames, military-like uniforms, and poles that are used in a threatening manner.

Council is hosting an open public comment period first before making anything official.


American Civil Liberties - Virginia Media Release:

The ACLU of Virginia today released a comprehensive set of recommendations for government agencies struggling with how to regulate free speech in a way that is legal and also protects public safety.

The white paper, “Permitting Protests: Guiding Principles,” was included as part of the ACLU-VA’s comments submitted to the Virginia Department of General Services (DGS) regarding restrictions Gov. Terry McAuliffe has imposed on demonstrations and protests at the Robert E. Lee Monument in Richmond.

“The government sets the rules regulating protests and demonstrations,” the white paper states. “The regulations cannot, however, favor one side over another and must be necessary to protect public safety and order.”

In a letter to DGS, ACLU-VA Executive Director Claire Guthrie Gastañaga referenced the affiliate’s legal recommendations and said the governor and Attorney General Mark Herring are wrong to suggest that the Lee Monument grounds are not a “traditional public forum” in which the public should be able to engage in First Amendment protected speech and assembly subject only to narrowly drawn rules.

“Lee Monument has always been used as a public park and a public gathering space which has routinely held large events including protests, rallies, Easter parades, and live music events,” the letter states. “Because it includes a public walkway and grassy area and has been used traditionally as a public park, the Lee Monument grounds are, in fact and law, a public forum and should be regulated as such.”

The letter outlines numerous constitutional issues raised by the governor’s emergency regulations, including concerns that proposals to “grandfather” some events amount to impermissible distinctions based on the content of speech,  and that requiring a permit for any demonstration or protest by a group of 10 or more people is overly restrictive and unreasonable.

The ACLU-VA’s white paper recommends 10 guiding principles for permitting public gatherings that would meet constitutional standards for any public forum, including the Lee Monument and Capitol Square as well as public spaces in localities. These include:

  1. No permitting decisions will be made based on the content of the speech (including anticipated audience reaction to the content of the speech) or the identity of the speaker. 
  2. No permits will be required for individuals or small groups (under 20 people), or for spontaneous demonstrations held in response to current events. 
  3. Permit regulations will specify the number of days in advance of demonstrations that permit applications must be submitted, which will be no longer than 6 days. 
  4. Permit regulations will specify the number of days within which decisions on permit applications will be made, which will be no longer than 3 days. 
  5. Permit regulations will specify that all permit applications will be granted unless specific, content neutral, and narrowly defined exceptions apply. Examples of such exceptions are: another person has reserved the same space for the same time; or the demonstration will interfere with pedestrian passage or traffic. 
  6. Permit regulations will require decisions on permit applications to be in writing, and denials of applications to state the reasons for the denial, and the time frame and method of appealing the denial. 
  7. Permit regulations may specify that a permit may be denied when there is a well-founded belief based on concrete evidence that the permit applicant will engage in violent or unlawful conduct. 
  8. Permit regulations shall provide that a permit will not be revoked without notice and an opportunity to contest the revocation; notice shall be given promptly to provide the applicant enough time to seek an alternative venue or to challenge the revocation.
  9. Permits may include reasonable, content-neutral limitations on the size of events based solely on administrative considerations, such as the capacity of the available space and legitimate law enforcement needs, but discretion to impose such limits may not be unfettered.
  10. Any other restrictions on free speech will be reasonable, content-neutral, and narrowly tailored to legitimate government interests, and will allow ample alternative means of communication. Fees may be imposed only for the costs directly caused by the speaker, not for the costs imposed by the reaction to the speaker, and only if they don’t practically preclude the First Amendment activity.

“Our hope is that law enforcement and other officials with permitting authority will use the white paper and guiding principles to ensure protests and demonstrations can occur without unconstitutional restrictions,” Gastañaga said.

The white paper concludes, “[i]n this case, as in so many others, the less government regulation the better, and state and local rules that recognize the right to speak and petition the government without unnecessary limits and requirements will best serve the people’s interest in constitutional governance and government’s interest in serving its people.”

The full white paper is available at www.acluva.org.