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ACLU Boulder Parks Permission Response 2012

ACLU Boulder Parks Permission Response 2012

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07/04/2013

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Boulder County
ACLU
 
 ______________________________________________________________________________ 
 
AMERICAN CIVIL LIBERTIES UNION of COLORADOBoulder County Chapter Judd Golden, Chair 303-442-6355 juddgolden@hotmail.com
June 14, 2012To: Boulder City AttorneyBoulder City ManagerBoulder City CouncilBoulder Parks and Recreation Advisory Board
Re: Proposed Limits on First Amendment Usage of Boulder Parks and Public Places
Boulder’s parks and public places are where people go to play, relax, socialize andsometimes, to protest, demonstrate, or march. The recently-rejected proposal by the BoulderCity Attorney to amend the Boulder Municipal Code to impose extensive time, place andmanner restrictions would severely limit the exercise of the constitutionally-guaranteed FirstAmendment rights of the public.The current proposal is summarized in an Agenda Item Memo to City Council of June 5, 2012, and is scheduled to be reviewed through the Summer and Fall. It makes a fewchanges from the earlier rejected draft, described in the Memo as: (1) clarification in thedefinition of the terms “demonstration” and “public assembly” to clarify that the regulationsgovern activities in city parks; (2) the addition of a permit exception for spontaneous events;and (3) the ability to apply for permits electronically.
The Boulder County Chapter of the American Civil Liberties Union of Colorado (ACLU) urges the Boulder City Council to reject this current proposal. Wepropose the City instead adopt a limited and narrowly-drawn no-permit reservationsystem ordinance that would allow a group exclusive use of a specific park or publicspace at a specific time for First Amendment activity. Public parks and the public willbe adequately protected by this system, and by the enforcement of existing ordinances.Background and summary
As you know, the Boulder County ACLU has long been an advocate for the public’sConstitutional rights to protest, demonstrate, and petition the government for redress of grievances without unreasonable government interference. In 2008 we persuaded the cityattorney’s office to instruct the Boulder Parks and Recreation Department not to improperlysubject political demonstrators near the Municipal Building to the regulatory limits of the
 
Boulder County Chapter of the ACLU of Colorado
2park rules governing recreational, athletic and social events imposed by B.R.C., 8-3-14Permits for Organized Events.So this would not happen again, we asked the City to create by ordinance areservation system–a non-required permit to allow a group exclusive use of a specific area ata specific time in letters to Council of August 1 and December 2, 2008.In 1992 the ACLU worked with the City to enact changes in the Pearl Street Mallrules that resulted in the current regulation scheme for use of tables, chairs, fixed signs andthe like (“advocacy adjuncts”) in what are now called advocacy areas, B.R.C. 4-11-1 et seq.The recent proposal, presented by the City Attorney to the Parks and RecreationAdvisory Board with little public notice and no consultation with the ACLU, backtracks onthe distinction between political and recreational events and grossly distorts the reservationsystem the ACLU proposed in 2008. The current June 5 proposal had no significantcommunity input or feedback.This proposal for extensive time, place, and manner restrictions on activity inBoulder parks and public places was recently unanimously opposed by Parks and Rec Boardas unnecessary and unreasonably. We agree, and extend these objections to the proposedprovisions that would regulate marches (“parades”).The agenda item memo for the City Attorney’s initial proposal makes it clear that itis targeted at the Occupy demonstrators. But lots of other people demonstrate, protest andmarch or parade in various places around the city for many reasons. This proposal is anunreasonable overreaction, like the recently-enacted nighttime parks closure.This attempt to limit and restrict dissent and protest is contrary to Boulder's historicspirit of openness and tolerance. It infringes on the public’s rights guaranteed under the FirstAmendment and the Colorado Constitution of free speech, assembly, and to petition thegovernment for redress of grievances. These restrictions burden more speech than necessaryto serve the questionable government interests that are cited in the agenda item memo anddraft ordinance.Speech on matters of public concern in a public place, like the speech and assemblyof Occupy protestors, cannot be restricted simply because it is upsetting or unwanted. It haslong been recognized that public streets and sidewalks may be used for public assembly anddebate. In public forums such as city parks, the government may not enact content-neutralrestrictions on communicative activity unless the restrictions are narrowly tailored to serve asignificant governmental interest and leave open ample alternative channels forcommunication.That simply is not the case here.
 
Boulder County Chapter of the ACLU of Colorado
3While the proposed ordinance commendably borrows some parts of the 1993 PearlStreet Mall advocacy areas regulation scheme ordinance referenced above, as we asked theCity to do in our 2008 letters, it goes to far, setting up too many administrative and practicalbarriers of time, place and manner.No permit or fee is now or has ever been required on the Downtown Mall forspeaking, leafleting, picketing or exercising other First Amendment rights, as then - CityAttorney Joe DeRaismes pointed out before the current Mall permit system was adopted.This system has worked well for nearly 20 years. No permit should be required for similaractivity in Boulder’s parks and public places, with very limited exceptions.
Specific objections to the City Attorney’s proposal
Restrictions on place of assembly and protest zonesIf we are reading the proposal correctly, it bans protests and demonstrations thatpossibly could attract more than 25 people in Boulder to five public park areas - all incentral Boulder - unless the people stay on the public sidewalks. Although these parks areplaces where people often gather in downtown Boulder, the ACLU opposes the idea of forcing people to conduct their First Amendment activity where the government tells them.The recent trend to establish fenced protest zone “cages” at political conventions farfrom the object of protests have been some of the most egregious abuses of the spirit of freespeech and expression. Protest zones are inimical to Boulder’s tradition of respect andtolerance of free speech and expression.Where a protest occurs is often an essential part of expressive speech. These so-called “protest zones” unreasonably diminish both the force and effect of many protests,demonstrations, vigils and marches. What if there is a reason to demonstrate at policeheadquarters? The jail? A particular public building? The site of a significant event that isoutside central Boulder? Under the proposal, a permit would be required for five people tostand outside the Boulder Police Department.Protest zones are inimical to Boulder’s tradition of respect and tolerance of freespeech and expression and should not be part of any regulatory scheme.Fees for cleanup, traffic control and law enforcement and depositNo fee or deposit should be required for assemblies or marches protected by the FirstAmendment, as distinguished from recreational, athletic or social events in the parks. Peoplewho violate the law while using parks or public spaces can be charged and prosecuted for hisor her individual conduct.

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