Pubdate: Tue, 19 Jun 2001
Source: Atlanta Journal-Constitution (GA)
Copyright: 2001 Cox Interactive Media.
Author: James J Kilpatrick


In March 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

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

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:

''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

''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.

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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