PROMOTING POT IN A PARK OR LIMITS OF FREE SPEECH

In March of 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 pot.

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 permit.) 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:

"The regulation challenged here does not authorize any judgment about the
content of any speeches or other expressive activity -- their
dangerousness, offensiveness, immorality, and so forth. It is not even
clear that the regulation reduces the amount of speech. 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 balance.

"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. I cannot suggest a bright line between liberty and
order, and I doubt that one exists. It is not enough to say that Peter's
right of free speech ends where John's nose begins. The issue here is far
more complicated.

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.