This is a longer than usual post. Use the links in the table of contents to quickly navigate to the parts that most interest you!
Contents
Introduction
Since No Kings 3, Mayor Mike Garcia has told the City Council, the public, and me that he would advance a proposal for improving how the City of Santa Fe treats permits for political marches and demonstrations. Yesterday, I met with Mayor Garcia — Mike, as he has asked me to call him — to learn the status of his efforts. Mike and I had constructive discussion. I followed up with a thank-you email to Mike that included some ideas and information prompted by our meeting. Below are the key takeaways from the meeting and the email, followed by my analysis as to whether the City is on track to a constitutionally permissible approach. I conclude that it is hard to tell.
Key takeaways from the meeting with Mike
Mike is overseeing a two-track process. He and his legal team are drafting proposals for (1) a more “structured” and “equitable” approach specifically to permits for political speech political assembly and (2) the same for special events permits more generally, that is, for permits for events that are not protected by constitutional guarantees of free expression.
Mike believes that 1A Santa Fe’s efforts have exposed “weaknesses” in the City’s current approach to permits for political demonstrations and marches, though he also believes the City’s current approach satisfies the free expression requirements of the New Mexico and the U.S. Constitutions.
Mike did not want to name a date by which his proposals would be ready. He said he was comfortable saying that he would advance them by the end of 2026. He believes they will have to be implemented via an ordinance, though indicated that his team was verifying that.
In my opinion, if an ordinance is necessary to implement the Mayor’s proposals and these are not available for the Council to consider until the end of 2026, the City is at least six to ten months away from a legislated new approach to permits for political demonstrations, marches, and rallies.
Mike rejects Albuquerque’s Free Expression and Special Event Ordinance as a model for the City of Santa Fe.
His proposal will definitely require planners of political demonstrations, marches, and rallies to obtain permits for their events and will definitely impose fees for these permits.
I asked Mike if he was considering issuing any interim guidance to the public and City officials, including the Santa Fe Police Department, to ensure that the problems 1A Santa Fe and Indivisible Santa Fe encountered in obtaining permits for use of streets for No Kings 3 do not arise for others who try to get permits between now and the City’s adoption of finalized new procedures. He said he is not, as he believes current procedures are adequate.
Mike stressed his commitments to freedom of expression and public assembly and to the City’s obligation to protect public safety when those freedoms are exercised. He is confident that now all City officials, including the Santa Fe Police Department, are on board with his position.
I asked Mike what political event planners and organizers should do if they encounter problems attempting to obtain permits. Mike said that any planner or organizer who believes a City process or official is wrongly burdening their right to free expression or public assembly should contact the Mayor’s Office directly (telephone: 505-955-6337).
I renewed my offer to assist Mike and his team, pro bono, as they develop the proposals they are working on, offering to share my scholarly expertise on state and local regulation of expressive activities. Mike offered to send me a copy of his proposal when it is ready. I thanked him, and said I would provide feedback.
After the meeting, I e-mailed Mike to thank him for his time and to supply a few follow-up ideas based on what he had shared with me in our meeting. The key points from that email:
While courts have not rejected all fees for permits for use of “traditional public forums”, including streets, as constitutionally impermissible, courts have imposed serious constraints on them. I encouraged Mike and his team to look carefully at two cases in particular. This case law illustrates and explains what makes fees and other financially burdensome permit requirements constitutionally acceptable or not. They are important points of departure for a municipality planning fees or insurance/indemnification requirements. See the box below for details.
Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), the U.S. Supreme Court invalidated a municipal ordinance that charged political demonstrators for the costs of police protection or security for their event, Forsyth at 134-36, holding that any such charges could not be calculated in a content-neutral manner as required by the First and Fourteenth Amendments. The Court also held that any expenses charged to demonstrators cannot be determined at the discretion of municipal officials, Forsyth at 132-33, because such discretion creates too great a danger of censorship. The Tenth Circuit Court of Appeals expounded on Forsyth in iMatter Utah v. Njord, 774 F.3d 1258 (2014). The iMatter Utah Court rejected the State of Utah’s insurance and indemnification requirements for “parade permits” on the grounds that these requirements were insufficiently tailored to serve a significant governmental interest.
Courts have considered but not resolved whether and how a municipality must accommodate groups that cannot afford otherwise constitutionally permissible fees. I offered to send Mike a list of judicial decisions that bear on this issue, if that would be helpful to him.
Mike and I disagree about the legal satisfactoriness of the City’s current process for issuing permits for political marches, rallies, and demonstrations. But even if he continues to reject the idea of publicly issuing updated interim guidelines, I encouraged him to post on the City’s website accessible, concrete information about the current steps and requirements for obtaining permits for use of the streets for political speech and assembly. This would at least set a public understanding for both organizers and City officials to work from.
My analysis of the status quo and where the City is headed
The status quo
1A Santa Fe has no plans currently to sue the City of Santa Fe. We are trying to work collaboratively with the Mayor and the City Council to bring the City into compliance with the law of free expression. That said, as of right now, the City of Santa Fe’s policies and procedures for permits for use of traditional public forums like the streets are vulnerable to what courts call a “facial challenge.” Such a lawsuit may be brought when a municipality’s policies and practices offend the First Amendment to the U.S. Constitution even if the plaintiff is not actively seeking a permit for a particular event. Even if the City of Santa Fe on any given occasion waives the permit requirement altogether and closes streets for a political march, that will not save the City from a facial challenge to its existing procedures, because these procedures give too much discretion to City officials and impose constitutionally invalid requirements. I agree with Mike that ideally a finalized overhaul of the City’s permit procedures would be a good way for the City to correct defects in the current system, but since that overhaul is not happening soon, the City would be wise to take interim measures to improve its processes.
Excessive discretion
Presently, the City of Santa Fe does not publicly post the process or fees to obtain a permit to use the streets and other traditional public forums for political speech and public assembly. There is no way for an applicant for a permit for a political demonstration to know in advance the fees or even the bases on which fees will be calculated. Instead, applicants are directed to fill out the form here. The City’s Special Event staff then contact the applicant to go through the sort of discretionary process partially described here and here. This sort of discretionary process opens the door to censorship. It exemplifies what the U.S. Supreme Court invalidated in Forsyth.
Clearly constitutional invalid requirements
Before the City will accept a permit application it requires a would-be applicant to show proof of the sort of insurance coverage explicitly rejected by the Tenth Circuit in iMatter Utah.
In its only publicly available guidance, the City says the initial form for requesting a street permit must be submitted 30 to 60 days in advance. Notice requirements of any kind for political speech events receive close scrutiny from courts. Courts have repeatedly rejected the sort of notice requirement the City of Santa Fe currently publicly requires. To give an idea of how courts treat notice requirements, see this excerpt from McGlone v. Bell, 681 F.3d 718, 734 (6th Cir. 2012). 👇
Appellees have not met their burden to show that the [14 business day notice requirement] is narrowly tailored to serve a significant government interest. See N.A.A.C.P., 743 F.2d at 1356-57 (finding it insufficient to "simply assert[], without citation to authority, that 20 days notice" is narrowly tailored). We hold that TTU's notice period is unreasonable. See, e.g., City of Dearborn, 418 F.3d at 606-07 (invalidating a thirty-day advance notice requirement for events in parks, on streets, and in other public areas); Douglas v. Brownell, 88 F.3d 1511, 1523-24 (8th Cir. 1996) (invalidating a five-day advance notice requirement for processions of ten or more persons on streets, sidewalks, and public ways); Grossman v. City of Portland, 33 F.3d 1200, 1204-07 (9th Cir. 1994) (invalidating a seven-day advance notice requirement to demonstrate in a public park); Roberts v. Haragan, 346 F. Supp. 2d 853, 868-69 (N.D. Tex. 2004) (invalidating a two-day advance notice requirement for students to speak in designated campus areas).
The future
At this juncture it is difficult to predict whether the City of Santa Fe will end up with a constitutionally valid approach to political speech and public assembly. Personally, I believe Mayor Mike Garcia when he says he embraces freedom of expression and public assembly and the City of Santa Fe’s obligation to protect those who exercise these freedoms. Yet, as of now, we don’t have any details of the proposals Mike is preparing, other than that they will include fees for permits to use traditional public forums for political marches, demonstrations, and rallies. When I met with him yesterday, Mike did not tell me which features, if any, of the current processes and requirements he intends to preserve. He did stress, more than once, that he thinks they are all legally acceptable.
Though I do not know what Mike’s proposals will look like, I can say he seems to have set himself a hard task. He does not have appetite for the approaches taken by municipalities that have adopted policies and processes that are obviously and easily constitutional on their face. For example, Albuquerque simply exempts most political demonstrations from having to have a special event permit; Fort Collins exempts them all. Mike prefers a less expansive approach. Many municipalities try the same, and many municipalities have some or all of their requirements and procedures invalidated for failure to adequately protect constitutional rights to free expression and public assembly. I know how hard it is to walk a line between abiding by state and federal law on free expression, on one side; and imposing fees and requirements on people seeking to use traditional public forums to assemble and express their political views, on the other. I continue to think the City of Santa Fe would be better off not making the attempt and instead adopting 1A Santa Fe’s proposed Free Expression and Public Assembly Ordinance. But as I told Mike, whatever path he pursues, I am still willing to provide my consulting services to him and his team so they can come up with the most legally defensible plan.
1A Santa Fe and myself will continue to do all we can to persuade, motivate, and, if possible, help the City of Santa Fe become a locality that successfully honors and protects the rights to free expression guaranteed in both New Mexico’s and the United States’ constitutions.
As the summer unfolds and we move toward the 2026 general elections, I look forward to joining fellow activists committed to free and fair elections in demonstrations for that cause. May we all be able to express ourselves together in public without having to go through unlawful permitting processes!