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Challenge of Protest Permit Policy Likely to Succeed on the Merits

By Gabriella Khorasanee, JD on February 12, 2014 | Last updated on March 21, 2019

Earlier this month, the Seventh Circuit had the opportunity to address a First Amendment free speech case regarding public protest, reports Courthouse News Service. Eric Smith planned a protest of the United Nations' proposed Arms Trade Treaty at the Soldiers and Sailors Monument Circle in Indianapolis, Indiana. Though he publicized the event, only he and his son showed up. The two set up five signs on the ground to promote the protest.

A few minutes later, an Indiana War Memorials Commission ("Commission") employee asked Smith to leave the property after asking Smith if he had a permit to protest, which he did not. He refused to leave at first, but changed his mind when police officers threatened his arrest.

The Commission's Policy

He initiated a federal action claiming the Commission's policy violated his First Amendment rights of free speech, and sought a preliminary injunction against the policy's enforcement. At a hearing, evidence was presented that the policy was unwritten, and was riddled with exceptions, was overbroad, and had the potential of giving the Commission "unbridled discretion."

Despite this, the district court did not grant Smith's motion for preliminary injunction because the court believed he had failed to show a likelihood of success on the merits.

The Seventh Circuit's Analysis

The Seventh Circuit noted that normally the determination to grant a preliminary injunction is a four-part test, but where the challenge relates to free speech, three of the four parts are met, leaving the only factor of likelihood of success. On appeal, the Commission argued that because it had promulgated a new, written policy in the time during the appeal, that Smith's claims were moot. The Seventh Circuit disagreed.

Where, as here, the "new revised policy retains the unconstitutional components of the old policy," the claim is not moot. In addition, the Seventh Circuit found that Smith was likely to succeed on the merits, reversed the decision of the district court, and remanded with instructions to grant a preliminary injunction. In so doing, the Seventh Circuit demonstrated once again, that prohibitions on political speech will not be taken lightly.

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