Donald M. Peters 005929
MILLER LaSOTA & PETERS, PLC
5225 North Central, Suite 235
Phoenix, AZ 85012
602-948-2900
Attorneys for The Arizona Civil Liberties Union
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ARIZONA
UNITED STATES OF AMERICA,
Plaintiff, NO. CR-98-502-1-PCT-RGS
vs. MEMORANDUM OF AMICUS
CURIAE ARIZONA CIVIL
MICHAEL D. LINICK, aka STRIDER, LIBERTIES UNION
Defendant.
The Arizona Civil Liberties Union agrees with the defendant
that the regulatory scheme in question imposes an unacceptable
burden on First Amendment rights.
One aspect of the scheme is particularly troubling. To
obtain a permit. an applicant must agree to pay the United States
for any damages which may result from the event. The applicant
must also agree to indemnify the United States for any resulting
losses.
The liability which a permit applicant must agree to accept
by virtue of these requirements depends, in part, on the number
of people who may show up. It also depends in part upon the temperament
and conduct of those people. These and other variables are beyond
the control of any potential permit applicant. The permit applicant
must therefore agree to pay a price for the right to assemble
which is uncertain and uncontrollable--and potentially ruinous.
The resulting chill on free assembly is particularly acute in
connection with an "organization" like the Rainbow Coalition.
It is a loosely affiliated collection of citizens. Those citizens
are not engaged in any common economic enterprise. There is no
hierarchical structure to which the individuals involved are answerable.
There is no legal entity through which those individuals act collectively
or can be held collectively accountable. First Amendment rights
obviously cannot be restricted to those who organize themselves
in a manner which is convenient for the government. From the Boston
Tea Party on, much of our history has been made by groups of citizens
"who were no more structured than the Rainbow Coalition,
and often less peaceful. No member of such a fluid association,
however, can reasonably be expected to assume complete financial
responsibility for whatever might be done by whoever might show
up.
It may be assumed that Congress could constitutionally
give the Forest Service a right to seek damages or indemnity from
anyone who might cause damage to a national forest. The situation
here is distinct. The regulatory scheme in question conditions
the exercise of First Amendment rights upon an assumption of liability,
not only for one's own misconduct, but for the potential misconduct
of others. A permit applicant must agree to serve as a kind of
guarantor for the behavior of strangers. Such an approach simplifies
the government's task in the event of damage. It does so, however,
at the expense of free assembly.
It is not invariably unconstitutional to extract a fee
in connection with the exercise of First Amendment rights. See
Cox v. New Hampshire, 312 U.S. 569 (1941) (upholding statute which
required demonstrators to obtain a license and pay a nominal fee).
Fees which are more than nominal, however, raise serious First
Amendment issues.
A situation with some similarities to this one was presented
in Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d
1515 (11th Cir. 1985), cert. denied, 475 U.S. 1120, 106 S.Ct.
1637, 90 L.Ed.2d 183 (1986). At issue was an ordinance which
conditioned the right to have a public demonstration on prepayment
of fees -for additional police protection. The amount which a
demonstrator might have to pay depended upon the city's assessment
of how much additional police protection might be needed, which
depended in turn on how controversial the demonstration might
be expected to be. In effect, demonstrators had to agree in advance
to indemnify the city for anticipated damage to its fisc. The
Eleventh Circuit, interpreting Cox v New Hampshire as authorizing
the imposition of fees only when the fees were "nominal."
concluded that the ordinance was unconstitutional. 774 F.2d at
1522.
The same conclusion should be reached here. One wonders
if the Sermon on the Mount would ever have been uttered if one
of those attending had been required to assume complete financial
responsibility for anything which anyone in the crowd might have
done to the Mount.
September 22, 1998.
MILLER LaSOTA & PETERS, PLC.
By: Donald M. Peters
Donald M. Peters
5225 North Central, Suite 235
Phoenix, AZ 85012
Attorneys for The Arizona Civil Liberties Union
Copies of the foregoing mailed this 22nd day of September,
1998 to:
Scott Bales
Assistant United States Attorney
4000 U.S. Courthouse
230 North First Avenue Phoenix, AZ 85025
Attorney for Plaintiff
And
Michael D. Linick, aka Strider
707 West Bridle Path
Payson, AZ 85541
Defendant/Pro Se