What are your rights on government property that you helped pay for?
This op-ed was published in the Daily Herald.
On a calm spring day last year, a group of concerned citizens in Provo met outside the city’s recreation center to gather signatures in support of a ballot referendum to repeal a recent approval given to a new bus rapid-transit system.. Their efforts didn’t last long.
The recreation center manager, who didn’t want the signature gatherers outside the building, quickly called the mayor to obtain approval to force them to leave. Within an hour, police officers approached the group and told them they could no longer be there.
As the signature gatherers left, they questioned the decision of the mayor, asking what happened to their First Amendment rights. The police officer wasn’t sure. Even the manager wasn’t fully aware of his ability to tell the signature gatherers to leave. This is because there is an unanswered gray area when it comes to free speech restrictions outside of public buildings in Utah.
One would think that Utahns would be permitted to peacefully protest or interact on the grounds outside almost any government building in the state. After all, these are public buildings, paid for by the very citizens using the grounds to solicit support for changing the law.
However, Utah code allows for “time, place, and manner” restrictions of speech in order to minimize disruptions and “protect the public health, safety and welfare, including safety and security considerations.” This state code closely aligns with federal law concerning free speech, which is written and interpreted by the United States Supreme Court to specifically define when speech can and cannot be limited. Time, place, and manner restrictions must be narrowly defined and must “leave open ample alternative channels for communication of the information.”
Although the state of Utah occasionally attempts to enforce this time, place, and manner restriction, it is certainly not narrowly and clearly defined–especially in Utah cities. Provo, like most cities across the state, lack distinct city-wide speech policies, which leaves both citizens and government officials wondering how to deal with situations like the one mentioned above.
Because of the time, place, and manner clause, under state law, the city does have a right to place restrictions on speech–but those restrictions should not be spontaneously created in response to speech already occurring.
The solution to this confusing gray area of speech limitation is for cities to adopt a well thought out, constitutionally aligned speech policy to protect each citizen’s right to exercise speech. Such a policy would allow individuals to practice expression on the outside grounds of traditional public forum buildings such as courthouses, capitol buildings, or public libraries. This proposal was introduced as HB 298 by Representative Norman Thurston during the 2017 legislative session. Though it passed unanimously in the House, time ran out before the bill could receive a final Senate vote. The bill will likely be advanced again in early 2018.
In the bill, Rep. Thurston basically proposed that city leadership adopt a free speech ordinance based on the U.S. Constitution. The purpose of this is to avoid confusion for each city’s residents, so they can rightfully show up and express themselves outside of government buildings without worrying about the threat of being kicked out by a city official.
Once cities have a clear cut policy in place, Utahns will have legal standing to understand and use their rights of expression—and challenge their violation when necessary. Rather than arbitrary or spontaneous rulemaking and enforcement, we will all be able to better rely upon constitutionally sound policy.
Your right to exercise speech, especially on property you help pay for, is too important to leave to the uninformed discretion of local government officials. Clear and consistent policy is needed—and is hopefully coming with Representative Thurston’s legislation next year.