The American Civil Liberties Union of Utah, on behalf of the Main Street Church, has filed a complaint against Brigham City’s “Free Speech Zone” Ordinance. The suit claims that the city’s ordinance violates the rights granted to all U.S. citizens by both the state of Utah’s and the United State’s constitutions.
According to the ordinance, a city permit is required for essentially any type of expression in a public forum; this is inclusive of all city parks, streets and sidewalks. Additionally, civil and criminal penalties have been implemented within the ordinance for those that fail to comply with the city’s regulations. This issue has raised concern throughout the city because those unaware of the need of a city permit may be held accountable for actions believed to be protected by the First Amendment.
The Main Street Church planned on passing out religious pamphlets to the public during the Open House of the Brigham City Latter day Saints Temple. The religious-themed literature made comparisons between the beliefs of the Main Street Church and those of the LDS Temple. The church was banned from circulating their pamphlets on the two public sidewalks most trafficked by those going and coming from the LDS Temple. Additionally, the Main Street Church has also moved for a temporary restraining order to prohibit the city from further restriction of the church’s rights to assembly, free speech, and free exercise of religion in a traditional public forum.
The ACLU of Utah believes that the rights provided by the First Amendment are prohibited in Brigham City until the city provides a permit allowing an individual to implement these rights. However, the process of granting such a permit is at the discretion of the city’s police chief, attorney and administrator.
In the question of whether or not the city ordinance is unconstitutional, one must examine if prior restraint was used by city administrators based on the content of the message being shared in a traditional public forum.
In the case of Hague v. CIO, Justice Roberts wrote:
“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens” 307 U.S. 496 (1939). This definition of a traditional public forum still remains constant, and describes the environment in which the Main Street Church attempted to circulate religious-themed literature.
Brigham City administrators attempted to remain content-neutral while issuing permits for “Free Speech Zones”; meaning that the content of the message being shared has no bearing whatsoever as to whether or not a permit is granted to an organization. In the case of Simon and Schuster v. Crime Victims Board, it was found that the New York Son of Sam law, which prevented convicted criminals from profiting from books published about their crimes violated the First Amendment. It was found to be unconstitutional to censor an individual based on the content of their publication 502 U.S. 105 (1991).
If a publication or group of people are censored, or not given the right to free speech, there’s a possibility that a “gag law” of some sort may be in place. In Near v. Minnesota, Jay Near published a scandal sheet that attacked local officials associated with gangsters. The publication was considered a nuisance and anyone affiliated with the publication or circulation of the periodical could be prevented from further maintaining or committing the said nuisance. However, the Court held that the statutory scheme constituted a prior restraint, and consequently was invalid under the First Amendment 283 U.S. 697 (1931).
In Saig v. City of Dearborn a group of Christians was banned...