Enfield town green use policy raises constitutional questions

Enfield’s policies for use of the town green and Joseph E. O’Connor Gazebo violate the First Amendment, according to the Foundation for Individual Rights and Expression (FIRE).

FIRE, a First Amendment public advocacy group, sent a letter to members of Enfield’s town council on May 9, outlining several of Enfield’s rules and regulations for reserving the town green and gazebo that it says raise “serious First Amendment issues.”

“It’s hard to know where to start. There are a lot of problems.” Aaron Terr, FIRE’s director of public advocacy told Inside Investigator. He described the policy as “using a sledgehammer to crack a nut.”

Terr said Enfield can legally establish reasonable rules for issuing permits for events on the town green so long as they are narrowly tailored and advance one of the town’s substantial interests, like public safety. But the town can’t discriminate against speech based on its content or viewpoint. And many provisions in the policy fail that test, Terr said.

“It’s so broad it seems to apply to something as simple as handing out pamphlets on the green without the town’s permission.” Terr said.

According to FIRE’s letter, one of the problems with the regulations is that they require anyone wishing to reserve the town green or gazebo to submit an application at least 10 days in advance of an event, but don’t define what uses are covered by the policy or any exempted uses for small groups and individuals.

“While Enfield may require permits for some events—such as those involving large groups or requests for exclusive use of the Town Green—the rules and regulations seemingly encompass an almost limitless range of expressive activity, from a lone acoustic guitarist to a book club meeting, from a 10-person protest to a lone pamphleteer. Requiring even individuals and small groups to obtain a permit to engage in expressive activity on the Town Green violates the First Amendment.” the letter states.

The permit requirement, according to FIRE’s letter, is a prior restraint on speech. It states federal courts have struck down permit requirements applying to individual or small-group use of public forums.

“To the extent Enfield may require a permit for some large gatherings, the notice period “can be no longer than necessary to meet” the town’s ‘urgent and essential needs.’” the letter states.

Another of FIRE attorney’s concerns is a requirement, which is also in the town code , that applications for use of the town green or gazebo for religious events be subjected at least 60 days in advance. “Any proposed use of town facilities for an event or display that is religious in nature shall be decided on a case by case basis and shall be reviewed by the office of the town attorney to ensure compliance with constitutional standards and governing case law.” Enfield’s code reads.

But writing the rule this way, Terr says, discriminates against speech on the basis of its viewpoint, which is unconstitutional.

“Although Enfield has not completely banned private religious speech at the Town Green or Gazebo, the 60-day notice period violates the First Amendment by placing an additional burden on such speech merely because it expresses a religious viewpoint.” FIRE’s letter reads.

In addition, the regulations require anyone seeking a permit to use the town green or gazebo, regardless of the size of the proposed event, to carry $1 million worth of insurance coverage. The town code also gives the town manager the power to raise the amount of required coverage if he believes the liability is higher for a particular event. Terr says this policy is not narrowly tailored and that any insurance requirements the town imposes need to be tied to the risks associated with a particular event.

“It’s a financial barrier, which has the potential to stifle the speech of Enfield residents who can’t afford exorbitant insurance.” Terr said.

The town also requires any police required for an event to be paid for by the individual or organization hosting it and allows the town to deny a permit for an event if it would “unreasonably interfere with or detract from the promotion of public health, welfare, safety and recreation” or is “reasonably likely to cause injury to persons or property, incite violence, crime or disorderly conduct.

Not only do these policies risk creating a heckler’s veto, but Terr says they risk discriminating against speech by controversial speakers.

“In the 1960s, messages of racial equality were highly controversial, and because they were likely to provoke controversy, the governed used that to shut down civil rights protests. That’s why it is essential not to financially burden speakers.”

FIRE’s letter points to other problems with the policy, too, including a ban on events designed to be held for private profit and a ban on advertising. In both cases, FIRE says the town’s policies are too vague.

Moving forward, Terr said Enfield needs to “at minimum revise the policy to remove unconstitutional provisions.”

“It’s not that they can’t have any policy, but they need to make sure it’s narrowly tailored and doesn’t discriminate based on viewpoint.” Terr said.

Terr also noted that FIRE’s letter says it is happy to work with the town to revise the policy, and to do so for free. At the time Terr spoke to Inside Investigator, he said FIRE had not received a response from the town, but that the letter had requested a response within two weeks, which had not yet passed at that point.

If FIRE does not hear back from Enfield, Terr says the organization will regroup and decide what to do next. “Often our first step is just to follow up, reiterate our concerns, and just take it from there.” Terr said.

Members of Enfield’s town council did not return a request for comment from Inside Investigator about whether the council had discussed the letter or was planning to take any steps to address its concerns.

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