© UnknownThopsonville Village of Enfield Connecticut
In February, FIRE wrote to the town of Suffield, Connecticut, about its proposed policy regulating activities on its town green. Suffield subsequently abandoned the policy, which would have violated residents' First Amendment rights. But it turned out Suffield's proposal was based on a policy of the nearby town of Enfield. Now, in a new letter, FIRE is calling on Enfield to follow its neighbor's lead by reforming its unconstitutional town green policy.

Next to the town hall in Enfield is an open area with a gazebo called the Town Green. Enfield makes the Town Green available for public use โ€” but only if visitors comply with Enfield's many requirements, several of which violate the First Amendment.

Enfield's rules control more than the manner in which someone can use the Town Green โ€” they control whether someone can use the Town Green at all. Any individual or group wishing to use the Town Green must first submit an application and receive approval from the town manager's office.

Individuals and small groups are not exempted, so the need for a permit seemingly applies to anyone doing anything. As FIRE explained in the Suffield case, a town may require permits for some activities in a town green, such as those involving large groups or requests for exclusive use of the green. But requiring a lone pamphleteer or acoustic guitarist to obtain a permit before engaging in protected expression is excessive.

It's also unconstitutional. Places like public streets and parks are traditional public forums where the public has strong free speech rights. As the Supreme Court has recognized:
"These areas have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions."
The permit application generally must be submitted at least 10 days "before the initial date of the proposed activity," according to the town's rules. That requirement prevents people from engaging in spontaneous free expression and assembly in response to breaking news and events. The First Amendment prohibits the government from requiring notice periods that are longer than what is necessary to meet legitimate traffic and safety concerns.
Speech does not lose constitutional protection simply because the speaker is paid to speak or solicits contributions in the course of disseminating a message.
Worse yet, events or displays that are "religious in nature" have a 60-day notice requirement. That's unconstitutional viewpoint discrimination. The Free Speech Clause of the First Amendment means the government cannot treat religious speech differently simply because it is religious. Although the Establishment Clause may prevent the government itself from promoting a religious message, in a public forum like the Enfield Town Green, the government must allow the public to engage in religious speech without additional burdens.

As another part of the permit process, all events are subject to a $1,000,000 insurance requirement. It does not matter whether an event is expected to have over a hundred guests or a dozen. It does not matter whether an event includes large equipment or not. Every use requires at least $1,000,000 of insurance. Such a blanket rule is far from the narrow tailoring the First Amendment requires and leaves use of the Town Green out of financial reach for many.

Enfield also has a blanket ban on activities that, as judged by Enfield, "unreasonably interfere with or detract from the promotion of public health, welfare, safety and recreation." This language is unconstitutionally vague. For example, what interferes with "the promotion" of these things? Does it have to be something physically dangerous? Or, could it merely be a message an Enfield town official thinks promotes a dangerous message? The rule offers no guidance. Citizens are left guessing what is and what is not allowed.

Partially because of their vagueness, Enfield's rules pose a substantial risk of a heckler's veto just like Suffield's proposed policy. The town could claim an event is likely to "interfere with public welfare and safety" with little or no evidence, as FIRE has seen recently at colleges and universities. Additionally, Enfield requires event sponsors to pay for police themselves, and the town manager has broad discretion to raise the minimum insurance requirement for events. That creates a risk that the town will require a larger police presence or additional insurance coverage for events with controversial speakers or messages.

The First Amendment does not permit these content-based burdens on speech. The government can require event holders to pay actual administrative costs unrelated to the expressive content of an event, but it may not burden speech simply because listeners may react with hostility.

The problems don't end there. The Town Green policy bans activities, events, and displays "designed to be held for private profit." With its categorical sweep, this rule seemingly bans a guitarist from opening his guitar case to accept donations while he plays. As we told Suffield previously:
Speech does not lose constitutional protection simply because the speaker is paid to speak or solicits contributions in the course of disseminating a message. Likewise, expressive materials like newspapers and artwork receive full First Amendment protection regardless of whether they are sold or given away. Suffield cannot categorically ban expressive activity in a traditional public forum for the sole reason that money changes hands.
Similarly, the rules ban activities, events, and displays "held for the purpose of advertising any product, good, or event." Does this mean handing out flyers for future events, even non-commercial events, is banned? This vague and broadly worded ban chills protected speech.

FIRE calls on the Enfield town council to revise its rules for use of the Town Green so they comply with the First Amendment. Suffield's abandonment of its proposed rules show that another way is possible.