December 2024 – Parks & Recreation - 31

plication with respect to Sherman
Green,
but
approved Plaintiff's
application to " hold the Christmas
Vigil at Town Hall Green, which
was also for overnight use and the
same extended period of time. "
2022 Permit Approval
Subsequent to
filing
its
lawsuit
in federal district court, Plaintiff
submitted an application to hold
its 2022 Christmas Vigil on the
Sherman Green. This application
was heard at the Commission's December
21, 2022 meeting. Following
discussion, Plaintiff's request
to move to the Christmas Vigil to
Sherman Green was approved by
a vote of 7-1, with one abstention.
First Amendment Claim
Under the circumstances of this
case, the issue before the federal district
court was whether the denial of
Plaintiff's applications constituted
a violation of a First Amendment
right
to freedom of speech and
peaceful assembly. As characterized
by the court, public parks, like Sherman
Green, are the " quintessential
public forums " in which " the
government's authority to regulate
speech or expressive conduct...is
sharply circumscribed " :
The classic examples of traditional
public fora are streets, sidewalks,
and parks, which are properties that
have immemorially been held in
trust for the use of the public, and,
time out of mind, have been used for
purposes of assembly, communicating
thoughts between citizens, and
discussing public questions.
The court further noted a " prior
restraint on speech, i.e., any regulation
that gives public officials
the power to deny use of a forum
in advance of actual expression, "
including " a requirement that a
permit be obtained in advance of
the proposed speech or conduct "
is
" not unconstitutional
per
se,
but it " bears a heavy presumption
against its constitutional validity. "
Permitting Scheme
In addition, to be considered constitutional
under the First Amendment,
the federal
district court acknowledged
a permitting scheme " may not
delegate overly broad licensing discretion
to a government official and must
not be based on the content of the
message, must be narrowly tailored
to serve a significant governmental
interest, and must leave open ample
alternatives for communication. "
In this particular instance, the
federal district court found denial
of Plaintiff's applications was based
upon " constitutionally impermissible
reasons, " which had been " enabled
by a permitting scheme that
grants the Commission unbridled
discretion in considering applications
for Special Event permits " :
The Special Events Permitting
Scheme does not satisfy the requirement
that it contain adequate standards
to guide the official's decision.
It contains no criteria, restraints,
temporal limits, or guidelines to
which the Commission must adhere
when ruling on an application. Nor
does it contain a method to appeal
the Commission's determination or
require that the Commission furnish
justifications for its decisions
with respect to applications for Special
Events Permits.
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December 2024 – Parks & Recreation

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