Free Speech Zones in Brigham City

The national media is now shining the spotlight on a restrictive Brigham City ordinance requiring a permit for political speech, and requiring permit holders to exercise their individual right within a specially marked “zone.”

The LDS Church is conducting an “open house” of its new temple in Brigham City for a month, and members of another Christian church wish to distribute pamphlets and peacefully protest to temple-goers. Instead, they have been corralled into a “free speech zone,” prohibited from distributing their literature on the sidewalk around all sides of the temple lot.

The American Civil Liberties Union (ACLU) is suing Brigham City, and a court hearing is scheduled for Friday. Libertas Institute supports this lawsuit, and said as much in a brief Facebook post yesterday. Among the over 100 comments, a few have stood out as worthy of a response.

Interestingly, several commenters believe that supporting this lawsuit—supporting the right of protestors to interact with, walk among, and distribute literature to people on a public sidewalk (even if crowded)—is to be “anti-mormon”. “I didn’t know the Libertas Institute was anti-mormon,” said one person. (This is an especially interesting allegation, since those who comprise Libertas’ staff are all active, faithful members of the LDS Church.) “If you were all good Mormons and believe what the church teaches,” said another commenter, “you would know the Church is inspired of God and makes decisions, some we will like some we won’t.”

Perhaps you see the silliness behind these statements, but allow me to elaborate. This is not an issue about the LDS Church or the other church protesting. The Church did not make this decision, as it is public property—Brigham City officials did. It is them, not the Church, which is being sued. Our support of the protestors’ right to peaceably assemble and disseminate their ideas has nothing to do with our religion or the institutions involved.

To illustrate why this is so, consider the recent controversy surrounding the Chick-fil-A restaurant and its support of heterosexual marriage. Supporters turned out in droves to patronize the restaurant and some limited protests occurred at locations countrywide. Would it be okay for each city to ban protestors from the sidewalk surrounding the restaurant? Would it be appropriate to send them to the other side of the street, or half a mile away? Where does one correctly draw such an arbitrary line?

Critics may scoff at the idea of imposing a free speech zone out of sight of the people or organization being protested. “That would be unreasonable,” I can hear them say. And yet, this is the logical conclusion of clinging to such an arbitrary violation of individual rights. As exhibit A, consider the following story I share on page 50 of Latter-day Liberty:

On Labor Day 2002, sixty-five-year-old retired steel worker Bill Neel was present when President George W. Bush arrived in the Pittsburgh area. Like those around him, Neel was greeting Bush with a sign and loud cheers, but Neel’s sign read “The Bush family must surely love the poor, they made so many of us,” and his cheers were not in support of Bush. Prior to the President’s arrival, the Secret Service ordered the local police to establish a designated “free speech zone” where protestors would be allowed to exercise their right to protest—out of sight, out of mind. This area was a third of a mile away from where Bush and his entourage were located, and was surrounded by a chain-link fence. Though the Secret Service did not show any concern for the others holding signs and shouting, they demanded that Neel leave and go protest in the fence-enclosed area which they had so graciously prepared for that purpose. Neel refused, was subsequently arrested for “disorderly conduct,” and had his sign confiscated. Indirectly citing his natural right to peaceably assemble and speak (or protest), Neel later commented: “As far as I’m concerned, the whole country is a free speech zone.” At his trial, Pennsylvania district judge Shirley Rowe Trkula agreed with him. She threw out the disorderly conduct charge and stated: “I believe this is America. Whatever happened to ‘I don’t agree with you, but I’ll defend to the death your right to say it’?” Many cities require permits to control, minimize, and even silence dissent. In Pittsburgh’s case, this is evident when looking at a case four years later in 2009, where groups seeking to protest a G-20 meeting (a gathering of the finance leaders from twenty of the world’s leading nations) were denied the required permits. Pittsburgh’s positive law mandating permits be secured is used generally for all “Special Events” and makes it illegal for “Any person, group, organization or entity to sponsor or conduct a special event, as defined herein, unless such special event permit as may be required under this chapter has been issued for the special event”—punishable by up to a $1,000 fine and six months in jail.

Those who support Brigham City’s restriction on protestors’ free speech are quick to say that this isn’t about their ideas, but about traffic control. Brigham City Attorney Kirk Morgan said, for example, that the restrictions are for pedestrian and traffic safety. “We have a huge traffic issue in that area,” he said. “We even would discourage the LDS Church or any other individual from handing out pamphlets in that area.”

Discouraging is one thing, and perfectly acceptable. Given how many people are moving along the sidewalk, it is perfectly reasonable to persuade people to alter their plans and be considerate of passersby. But Morgan, as city attorney, does not deal with persuasion. He deals with law, and in this case the law will impose a penalty if protestors disagree. This is hardly “discouraging” somebody’s activity—it is a force-backed prohibition. Do similar prohibitions exist for other traffic control concerns? Must pedestrians secure a permit to stop and tie their shoelace on the highly-trafficked sidewalk? Must two friends not under any circumstances talk for a moment on the sidewalk, for fear of being fined or jailed by Brigham City officials?

These protestors clearly recognize the traffic control issue and are, according to the church’s pastor, sensitive to traffic safety and not interested in being a roadblock. Pastor Catlin said in a statement that the church did not intend to “impede the flow of pedestrian traffic, nor would we attempt to force anyone to take any of our literature.”

It is almost assuredly certain that I disagree with the ideas these protestors wish to share with their fellow Utahns. But that does not stop me from recognizing the violation of their rights. If such protestors were to lie down in the sidewalk and prevent the flow of traffic and access to the church’s private property, then there would be clear recourse for the law to impose justice and remove said protestors from the scene.

Instead, supporters of this “free speech zone” endorse a Minority Report-like system of law in which people who have violated nobody’s rights nor caused any problems are prohibited from engaging in an activity for fear of what might happen. This is a blatantly un-American idea that should be rejected as such.

On the Facebook thread and elsewhere, some have stated that this is a silly issue for Libertas Institute to comment on. Aren’t there bigger fish to fry? Well, sure. But it is in the small issues where one develops the consistency necessary to tackle the big ones. By ignoring the seemingly inconsequential and temporary violations of liberty, we build up a tolerance for violations that begin to increasingly extend to larger, longer, and more egregious violations. No, liberty must be consistently applied across the board, no matter how minute the issue may be.

For that reason, Libertas Institute endorses the ACLU’s lawsuit against Brigham City. This does not mean we agree with the ACLU on everything (we absolutely don’t), or that we oppose the church or the right of visitors to have unimpeded access to the temple grounds (we absolutely don’t). We simply recognize that unless and until a legitimate violation of one’s liberty has occurred, Brigham City lacks the legitimate authority to impose restrictions on one’s speech and movement. Protestors should therefore be free to peaceably mingle with temple-goers.