The Nuts and Bolts of a Constitutional Permit Process for Political Demonstrations

Note: Please feel free to ask questions in the comments or send them to [email protected]. Heidi will try to answer as many as possible.

Note: If you would like the City of Santa Fe to adopt regulations and laws like the those covered in this post, 1A Santa Fe recommends that you share a link to it with Santa Fe City Councilors and Mayor Michael Garcia.

For No Kings 3 in the City of Santa Fe, City officials closed the City March route to vehicle traffic, without requiring 1A Santa Fe or any other organization to obtain a permit to use the streets and at no cost. This meant that the thousands of participants in the March were able gather in the streets together and carry their message from the Roundhouse to the Plaza, safely and peacefully. The March was energetic and effective.

While the City’s decision was prudent, it still leaves open the issue of bringing Santa Fe’s permit policies and procedures into compliance with U.S. and New Mexico constitutional guarantees of freedom of speech, expression, peaceful assembly, and association. Mayor Michael Garcia has said that he is working on updating Santa Fe’s approach. A few city councilors have also expressed interest to 1A Santa Fe in seeing the City explicitly reform its policies and procedures.

There are different paths by which the City can successfully come into constitutional compliance. The most immediately urgent and necessary is via administrative change, the purview of the mayor. The mayor, via the City Manager, should promulgate constitutionally satisfactory permit policies, procedures, and requirements as soon as he feasibly can. Additionally, the City Council can pass an ordinance or ordinances that codify a constitutionally permissible approach to use of traditional public forums, particularly the streets, for political speech and assembly. Ideally, the mayor’s administrative changes, which can be done more quickly, will provide a template for whatever the City Council decides to enact.

As a policy matter, the mayor and the City Council will have to decide how robustly they want to embrace freedom of speech and assembly. Writing and implementing administrative regulations and ordinances that come up to the constitutional mark will take some expertise. I am sure the City of Santa Fe has access to fine attorneys who can discuss the range of permissible policy approaches, assist with drafting regulations and laws, and advise on how to operationalize them. I have offered my own services, free of charge, to Mayor Garcia, each City Councilor, the City Attorney, and the City Manager.

Members of the public also need information and resources about best practices for a city that wants to vigorously, clearly, and smoothly protect political expression. The remainder of this post is for all those who want Santa Fe to be a leader in this area.

In New Mexico, a large body of law governs free speech: the First Amendment to the U.S. Constitution, the New Mexico Constitution’s free speech provision, relevant state and federal statutes, and judicial interpretation and application of all the foregoing in individual cases. The case law is of particular importance because it reflects situations where speakers and state or local governments have clashed. To resolve those disputes, courts appraise specific features of local government action, law, and regulations, deciding which of these do or not violate constitutional and statutory protections for free speech, free expression, peaceful assembly, and free association. Santa Fe is governed by the case law of the U.S. Supreme Court, the New Mexico Supreme Court, and the federal Court of Appeal in the Tenth Circuit. The Tenth Circuit is the federal judicial area that includes includes Oklahoma, Kansas, New Mexico, Colorado, Wyoming, and Utah. Because most legal appeals never reach the U.S. Supreme Court, the decisions of the Courts of Appeal for the Tenth Circuit constitute the most fully elaborated federal constitutional law applicable to these states.

In addition to consulting this body of free speech law directly, the City of Santa Fe can also look to the law, regulations, and practices adopted by other municipalities. Of special relevance are New Mexico towns, cities, and counties and towns, cities, and counties in other states within the Tenth Circuit. Some of Santa Fe’s sister municipalities have robustly free speech protective law and practice. No need to reinvent the wheel.

In New Mexico and other Tenth Circuit states, three municipalities stand out: Albuquerque, Fort Collins (Colorado), and Salt Lake County (Utah). Albuquerque and Salt Lake County are particularly exemplary because their laws explicitly note the importance of free speech rights when it comes to regulation of “special events”.

To facilitate freedom of expression and assembly, Albuquerque, Salt Lake County, and Fort Collins exempt demonstrations and public assemblies from some or all of the permit requirements applicable to parades, block parties, and other special events.

Albuquerque does not require permits for public assemblies that do not require more than two prearranged city services. Albuquerque also explicitly states the obligation of their police department to accommodate a public assembly that starts on a sidewalk but attracts an unexpected number of participants: “the Albuquerque Police Department shall accommodate the activity by closing a segment, lane, or portion of the street if so doing will not jeopardize the participants or inhibit the flow of traffic on a major traffic route; provided, however, that the Albuquerque Police Department is authorized to limit the available portion of the street.” Albuquerque Code, § 7-3-5.

Fort Collins takes a simpler approach: “A special event permit shall not be required for ... [d]emonstrations.” Fort Collins Code, Sec. 23.5-3(b)(4). A “demonstration” is “a rally, picketing, speechmaking, march, vigil, religious service or any similar gathering that primarily involves the communication or expression of views or grievances, engaged in by more than one person, that occurs on a public right-of-way, or on a City-owned outdoor mall or plaza, or on other property owned or leased by the City....” Fort Collins Code, Sec. 23.5-2. Organizers of demonstrations are asked only to submit a “demonstration notice,” Sec. 23.5-4, to allow for coordination and planning.

In various ways, each model municipality takes a flexible approach toward demonstrations, reducing burdensome advance notice procedures and minimizing costs imposed on political action organizers.

Salt Lake County encourages permit applicants to submit paperwork at least 30 days before the date of the event and not later than 21 days, but the county is required to review applications filed less than 21 days in advance and approve them if certain criteria are met. Salt Lake County Code, 14.56.070(C). Fort Collins asks for demonstration notices to be submitted “as soon as as practicable prior to the activity.” Fort Collins Code, Sec. 23.5-4(c).

Albuquerque does not require “public assembly special events” organizers “to pay for any police, fire or EMS protection provided by the city.” Albuquerque Code, § 7-3-8(B). Salt Lake County exempts “political events” and parades shorter than one mile from permit fees including costs incurred by the sheriffs office. Salt Lake County Code, 14.56.090(D)(1) and (2). Likewise political events and short parades are exempt from liability insurance requirements. Salt Lake County Code, 14.56.120(B)(1) and (2). Because Fort Collins exempts political demonstrations from obtaining a special events permit altogether, organizers do not have to pay fees. Fort Collins suggests but does not require general liability insurance for demonstrations.

I’ve canvassed here some of the most important specifics of Albuquerque’s, Fort Collins’, and Salt Lake County’s respective approaches to permits or notice requirements for political demonstrations. All three municipalities’ laws have additional important features. They include explicit appeals procedures if permits are denied, they set deadlines by which city officials must act on permit applications, they have strong non-discrimination protections, they make it clear that permits for demonstrations may not be conditioned in any way on the content of the demonstrators’ speech and expression. Beyond the Tenth Circuit, there are numerous municipalities that robustly protect freedom of speech, expression, assembly, and association. Santa Fe can look to cities like Spokane (Washington), Oklahoma City, Birmingham (Alabama), and Little Rock (Arkansas) for further models of what its regulations and procedures should be.