JUDGE SAYS CITY ERRED IN BARRING MARIJUANA RALLY

Cites Free-Speech Rights

Superior Court Judge Carol S. Ball said the First Amendment requires the
Parks Department to issue a permit for Hempfest, which last year resulted
in 150 marijuana-related arrests. Ball said the city can set conditions to
protect public safety at the rally, which is expected to draw 75,000 to
100,000 people. MassCan's advocacy of civil disobedience by public
marijuana smoking does not allow the city to deny the permit, Ball said.
``Civil disobedience is a bedrock of our society: the Boston Tea Party, the
Vietnam War protests,´´ she said. But the city overstepped its authority
when it demanded that MassCan, as a condition of the permit, ``discourage
the illegal smoking of marijuana at the rally´´ through public
announcements and performers.

Bill Downing, president of MassCan, said in court filings that ``we will
not be coerced into becoming agents, scaring the people with the very laws
we despise.´´

Boston police said last year's rally was rife with violations of city
regulations, including unauthorized vendors, more than 30 of whom had no
health permits and one of whom had a 100-pound propane tank, five times the
size of tanks permitted on the Common.

Police also were critical of speakers telling the crowd to ``light up.´´´

MassCann lawyer John Swormley told Ball that there was nothing illicit
about such statements because smoking marijuana is not the crime,
possession is.

The only people who could smoke marijuana on the Common would be those who
obtained it illegally before they got there, Swormley said. So, he
reasoned, the crime was already committed and thus no speaker at a rally
could be seen as inciting lawless activity.

``Cute,´´ said Ball. ``You ought to go to work for President Clinton.´´

Earlier in the week, Ball ruled that the city violated the free speech
rights of owners of the Paradise Club when the club was shut down July 8.
Last month, US District Judge George A. O'Toole found that the city
violated the First Amendment rights of the Nationalist Movement when it
denied the Mississippi group's 1994 application for a parade permit.

In a statement, the municipal law department welcomed Ball's recognition of
the city's need to manage large events and protect public property and
safety and said the city would issue a permit with appropriate restrictions.

A spokesman for Mayor Thomas M. Menino said the crop of First Amendment
rulings is no reflection on the administration's policies.

``None of these rulings say the city has done anything unconstitutional.
What they take issue with is the way the ordinances and regulations are
written,´´ said spokesman John Dorsey.

City lawyers said the permit would be issued by next Wednesday and the
judge set a hearing on the legality of the restrictions for Aug. 28.
Hempfest is scheduled for Oct. 3.

The Beacon Hill Civic Association as well as the Friends of the Public
Garden and Boston Common opposed Hempfest, contending that the event causes
inordinate damage to the grounds.

Sandra Steele, president of the Beacon Hill Civic Association, said the
rally should be moved to City Hall Plaza if it is to be held because her
young son relies on the Common for a neighborhood green.

Last year Steele's son was playing soccer elsewhere on the Common during
Hempfest and ``breathed secondhand marijuana smoke.´´ The children, she
said, ``were all smiles.´´

Copyright 1998 Globe Newspaper Company.

Checked-by: Richard Lake