You have asked for my opinion on the constitutionality of a proposed ordinance in the City of Fort Smith, Arkansas governing public assemblies in public parks.

Having reviewed the 10-page ordinance, I must begin by saying that this office is not authorized or equipped to construe local ordinances.¹ Any attempt to fully assess this proposed ordinance's constitutionally would require me to interpret some of its provisions to ascertain the drafters' intent. Accordingly, I am somewhat limited in the scope of my review. I can simply explain some of the many issues that typically arise in the context of these kinds of ordinances and I can direct you to the applicable case law.

I will begin this analysis by briefly explaining the apparent general goals of this 10-page ordinance and the means by which the proposal intends to accomplish this set of goals. With this general understanding of the ordinance in place, we will be able to see that the body of law most relevant to a constitutional analysis of the ordinance is the First Amendment to the U.S. Constitution. Finally, I will briefly note how the First Amendment applies to laws like this proposed ordinance. Some issues of interpretation and definitional problems prevent me from being able to fully apply the First Amendment to the ordinance and reach a definitive conclusion regarding its constitutionality.

The proposed ordinance is clearly aimed at coordinating multiple uses of the city's public parks, ensuring that park facilities are preserved from damage, and ensuring that attendees are protected from dangerous or unlawful activity. The U.S. Supreme Court has declared that these purposes are legitimate governmental interests.² The proposed ordinance attempts to accomplish this set of goals by establishing a system for obtaining a permit or license for all “Public Assemblies” or “Special Events” that people plan to hold in a public park.

Laws that require people to obtain a permit before speaking in a public forum (like a city park) implicate the First Amendment to the U.S. Constitution, which states that “Congress shall make no law ... abridging the freedom of speech ... or the right of people to peaceably assemble ....” The U.S. Supreme Court has held that the Fourteenth Amendment to the U.S. Constitution makes the First Amendment applicable to every level of state and local government.³

Under the First Amendment, a law is considered a “prior restraint” on speech if, among other things, the law requires those wanting to engage in speech to obtain a license or permit before doing so. The U.S. Supreme Court has explained that prior restraints “are the most serious and least tolerable infringement on First Amendment rights,”⁴ and that because prior restraints are generally presumed to be unconstitutional, the governmental entity that has enacted the restraint has a heavy burden to show that the law is constitutional.⁵

*2 The Honorable Denny Altes State Representative Opinion No. 2012-025 Page 3 The Supreme Court has developed a multi-part test to which all prior restraints must be subjected. The test can be illustrated concisely through a series of questions:

In what follows, I will focus mostly on the fourth question. The seminal case addressing question four as it applies to licensing/permitting systems for public parks is the 2002 U.S. Supreme Court case Thomas v. Chicago Park District.⁸ In Thomas, the City of Chicago had adopted an ordinance that required large groups (defined as 50 or more people) to obtain a permit if they wanted to hold large-scale events in Chicago's public parks. The application could be denied only for one of 13 specified grounds. A group challenged the ordinance's constitutionality under the First Amendment because, they argued, the discretion of the permitting authority was not sufficiently curtailed.

The Court, which upheld the ordinance, focused on the fact that the permitting authority was limited to denying permits on only one of the 13 enumerated bases.⁹ The court then reviewed many of the bases and specifically upheld each one, both individually and collectively, as furthering a sufficiently important government interest.

The Fort Smith ordinance should be evaluated under, among other things, Thomas v. Chicago Park District. Applying the portions of that case as I have just outlined them, a court would assess several issues, some of which I will discuss below. First, as noted above, the Thomas Court thought it was important that the ordinance it reviewed tethered the permitting authority's ability to deny a permit by requiring the authority to invoke one of the 13 specifically enumerated grounds for denial. A court will carefully examine the proposed ordinance to ensure that the permitting authority can only deny an application for one of the proposal's 22 enumerated reasons. Accordingly, a court would have to construe the ordinance to assess whether the ordinance does clearly constrain the permitting authority.

*3 The second issue centers on the 22 enumerated bases for denying an application. Many items seem duplicative. As noted above, I cannot engage in an interpretation of this ordinance. Hence, I cannot attempt to parse each of the 22 items to determine how, exactly, they are distinct from each other in substance (not just in wording). A court would be faced with assessing what, precisely, the ordinance intends by several apparently duplicative provisions, such as: grounds 8 and 13, grounds 9 and 15, grounds 11 and 12, and grounds 11 and 14.

The foregoing two issues relate to the degree of discretion given to the permitting authority regarding grounds for denial. In contrast, a third issue pertains to whether a group with a permit to use the park may constitutionally exclude others from the park. The proposed ordinance purports to authorize a successful applicant to “allow or prohibit the solicitation of signatures for petitions, gifts, money, or for goods or services within the Permitted area during the duration of the Permit.”¹⁰ Depending on the circumstances, this could be unconstitutional. As noted above, I cannot delve into the various factual scenarios that would render this provision unconstitutional. Instead, I will simply direct you to the substantial case law on whether the government can allow a permittee to exclude others from a traditional public forum.¹¹

A fourth issue that will arise pertains to one of the definitions. As noted, above, any person or group wanting to hold a “Public Assembly” in a public park must obtain a permit. In section 1(k), the ordinance defines “Public Assembly” to mean, among other things, something that at least 51 people attend or plan to attend. This concern about the number of attendees was also at issue in Thomas, and the Court seemed to think that the concern was key to the ordinance's validity. In contrast to the definition of “Public Assembly,” the proposal, in section 1(m), does not limit the term “Special Event” by any reference to the number of attendees. Instead, the term is simply defined as “a public spectator event or attraction ... ceremony or similar event that is open to the public.” A court might view this failure to tie the definition to a particular number of attendees as constitutionally significant.¹²

Finally, the proposed ordinance would require applicants to pay a $500 fee/deposit.¹³ Courts are clear that cities may charge for the administrative costs associated with reviewing permits.¹⁴ But the courts are less clear regarding the constitutionally acceptable range for such a fee.¹⁵ So while I am not in a position to assess the amount of the fee, I will simply note that such a fee must be proportionally related to the administrative costs that the city actually incurs.¹⁶

*4 In conclusion, the scope of my review is necessarily limited to identifying the above issues and the body of law that is most relevant to a constitutional analysis of this kind of ordinance. The proposed ordinance's legality is a matter that must be addressed by the city's local counsel, who will be in a position to apply this body of law after he or she construes the ordinance to determine local legislative intent.

Assistant Attorney General Ryan Owsley prepared this opinion, which I hereby approve.