Acting on Behalf of KKK and its Opponents, MN ACLU Questions Delay in Rally Permit Applications

August 15, 2001

FOR IMMEDIATE RELEASE

ST. PAUL--In response to growing concerns over permit applications filed on behalf of the Ku Klux Klan and local KKK opposition group Can The Klan, the Minnesota Civil Liberties Union today is demanding that the Department of Administration grant the applications of both groups to rally on the capital by Friday. 

Representatives of both groups recently contacted the ACLU voicing concern over whether their applications for permits to hold rallies on the state capital are being treated fairly and legally. 

The permit regulations do not specify a time frame in which an application must be approved or denied. 

""As written, the current regulations allow the Director to wait until the eleventh hour to make a decision, thereby eliminating the ability of an applicant to get into court and challenge an adverse decision," said Teresa Nelson, Legal Counsel with the Minnesota ACLU. 

The Ku Klux Klan, or KKK, filed a permit application nearly two months ago requesting permission to hold a demonstration on the capital on Aug. 25. In anticipation of the KKK rally, a local group, Can The Klan, or CTK, also filed for a permit for the same day and time. As of yet, neither group has received a permit. However, two additional groups, whose permit applications for the same Aug. 25 weekend were filed after the KKK's, have already received permission to rally. 

The Department of Administration also requested that the KKK and CTK change their requested time frame to suit the department's desire to keep the groups apart. 

Nelson said the ACLU recognizes that the department may have security concerns over the two groups appearing at the same time, but that the mere possibility of conflict does not provide a basis for denying a permit application or forcing one group to rally at a time different from that initially requested. The department simply does not have the administrative authority to make such a request. 

After reviewing the law governing permit requests and the applications of both groups, the ACLU noted that the rules state grounds for denying a permit application and that none of the listed reasons are likely to exist in the current situation. 

Further, the ACLU is concerned that the treatment of the two groups is infringing on First Amendment rights. "It appears that the office is in fact taking into account the content of both groups' messages in determining whether to grant the applications," Nelson said. 

Nelson noted that courts have routinely overturned as unconstitutional permit ordinances that allow administrators to consider the content of the applicant's message when determining whether to grant the application. 

"The fact that the Department of Administration has pressured both groups to change the time frame on their applications illustrates that it has a de facto policy of not allowing groups with competing messages to demonstrate at the same time,"" Nelson explained. ""Such a policy, whether informal or written, is clearly a content-based restriction on speech and violative of each group's First Amendment rights. 

Further, the department requested that CTK not use noise-makers and/or musical instruments and that it has complete discretion in deciding whether to require an applicant to provide proof of liability insurance. 

"This provision allows the Director to make determinations about what groups will be required to have liability insurance based solely on the content of the group's message," Nelson said. "And that is without question unconstitutional." 

The ACLU's letter to administration officials follows: 

August 15, 2001 

Bernie Steele 
Department of Administration 
Plant Management Division 
117 University Avenue, Rm 301 
St. Paul, MN 55155 

VIA FACSIMILE and U.S. Mail 

Dear Mr. Steele, 

Thank you for returning my phone call. While I had hoped to have an informal discussion with you about the MnCLU's concerns regarding the proposed KKK and Can the Klan (CTK) rallies, it appears that the best way for us to connect is in writing. Since our last correspondence, the MnCLU has been contacted by both of the above-mentioned groups regarding the status of their permit applications. We have spoken to representatives of both groups and have reviewed written correspondence between your office and CTK. While we are not currently providing direct legal representation to either group, we do wish to weigh in on the current status of those applications and the approach that your office has taken thus far. 

Our first concern is with the pressure that your office has put on both groups to change their requested time frame to suit your desire to keep the groups apart. We recognize that special security concerns may arise because of the proposed rallies and understand the responsibility that you have in ensuring public safety. However, these concerns cannot be based on the message of the groups. The administrative rules governing permit applications do not provide you with the authority to condition a permit on the applicant's willingness to comply with your request to reschedule merely for the purpose of avoiding having two competing messages being disseminated at the same time. The rules provide only for your consideration of matters such as the level of concentration of persons in the permit area, the proposed movement of the group from one area to another, and the impact that the size of the group may have on traffic and the normal operations of state government. 

The two rallies are currently scheduled for a Saturday afternoon when most state offices are closed for the weekend. It is our understanding that the anticipated attendees for the KKK and CTK rallies are 50 and 300 people respectively. It is also our understanding that both groups plan rallies specifically in designated areas -- rather than rallies that would permit them to move from one point to another on the Capitol grounds. Therefore, it is highly unlikely that any of the regulatory grounds for denying a permit could exist in this situation, especially in light of the fact that in the past the Capitol grounds have hosted a number of controversial rallies involving crowds much larger than the two groups have proposed. 

We believe that any effort to regulate the two proposed rallies based on the government's disapproval or approval of the group's message would not pass constitutional muster. Further, we believe a court would find unconstitutional the discriminatory application of a permit regulation based on the content of the applicant's message. Courts have routinely overturned as unconstitutional permit ordinances that allow administrators to consider the content of the applicant's message in determining whether to grant a permit and in determining what conditions to place on the permit. While the rules at issue do not on their face allow such a consideration, it appears that your office is in fact taking into account the content of both group's messages in determining whether to grant their applications. 

CTK has reported to us that your office initially advised them that you do not grant permits for groups with competing messages to rally at the same time. Despite your written assurances to MnCLU to the contrary, the fact that you have pressured both groups to change the time frames set forth on their applications illustrates that you are administering a de facto policy of not allowing groups with competing messages to demonstrate at the same time even though they fully comply with your written regulations. Such a policy, whether it is informal or written, is clearly a content-based restriction on speech and violative of each group's First Amendment rights. While we understand that competing rallies conducted at the same time do raise the prospect for conflict between the groups, the mere potential for conflict cannot provide a sufficient basis for denying a proper application or forcing one group to rally at a different time. 

Our second concern is with the delay that has occurred in processing these permits. While there was some confusion about whether CTK's second permit application officially replaced their first application, it took your office ten days to inform CTK that you would not consider the second application until you had received a formal withdrawal of the first application, and an additional week to provide them with a written list of concerns that had to be resolved. Moreover, it is evident that much of the delay prior to CTK's second application was directly related to your desire to have them change the time frame of the application to avoid them being on the Capitol grounds at the same time as the group that they evidently oppose. 

It is unclear to us why it has taken over two months for you to process the Klan's permit application. According to Mr. McQueeney, your office told him that his permit would be granted; however he has not been provided with anything in writing. The delay is of particular concern in light of reports we have received that two groups, whose permit applications were tendered after that of the Klan, have already been granted for that same weekend. We recognize that two groups with competing viewpoints may, in some contexts, raise security concerns; however, apart from a clear and present threat to public safety, the fact that the two groups have conflicting messages can have no bearing on the decision to grant or deny their applications. It is apparent that the delay in this situation is directly related to content of these group's messages and is, therefore, constitutionally indefensible. 

The Permit regulations are silent with respect to the time period in which permit applications must be granted or denied. The lack of a time limit renders the regulations facially unconstitutional for the following reasons. First, it allows administrators to delay processing the applications of groups that are controversial or who have messages with which the administrator or other public officials disagree. This open-ended delay constitutes a content-based restriction on their speech. Second, it interferes with the ability of such applicants to publicize information about their proposed rally. Any applicant must have reasonable time to provide attendees with information about the time and place of the rally, and any other specific information that attendees need to know beforehand. The requirement that groups secure a permit prior to announcing a public rally makes the lack of a time deadline even more problematic because it prohibits groups from disseminating even tentative preliminary information about the proposed rally. Finally, it interferes with the applicant's ability to obtain prompt and fair judicial review of an adverse permit decision. Prompt judicial review is critical for any permit scheme to be held constitutional. As written, the current regulations allow the Director to wait until the eleventh hour to make a decision, thereby eliminating the ability of an applicant to get into court to challenge an adverse decision. Free speech delayed is free speech denied and clearly the lack of a decision on a permit application is the equivalent of making an adverse decision. 

Our third concern regards your unwritten policy prohibiting noise-making devices and musical instruments. Clearly, regulating the sound levels at public rallies is a significant government interest. To that end, a requirement that sound amplification and public address issues be coordinated with your office would seem to serve that interest. However, there is nothing in the permit regulations that grants you the authority to impose a blanket restriction on noise-making devices and musical instruments. Moreover, a blanket prohibition on all noise-making devices and musical instruments is an overbroad restriction on expressive activities that cannot be constitutionally defended. It is clear from the permit application materials that you do in fact grant permits for musical events; thus, it appears that you only apply this unwritten rule on an ad-hoc basis depending on the group that is applying for a permit. 

Our final concern involves the issue of liability insurance. While at this point, it is unclear whether you will require either group to provide proof of liability insurance, we believe that the current regulation constitutes a grant of unfettered discretion permitting administrators to require applicants to provide worker's compensation and/or public liability insurance without constitutional or legal standards. Regardless of whether it is even constitutionally permissible to require liability insurance in the context of free speech activities, it is clear that a standardless grant to you of discretion to determine whether to require liability insurance renders the provision facially unconstitutional. As with the lack of time limitations, this provision allows the Director to make determinations based solely on the content of the group's message. 

At this point, the MnCLU has not made a decision to represent either the KKK or CTK. However, the MnCLU Board may consider providing legal representation to both groups if your office does not address, in an expeditious manner, these important constitutional concerns that we have raised. In the event that the applicants have not been granted permits on or before Friday, August 17th, 2001 we will further consider the appropriate legal action to be taken on behalf of CTK and the KKK in this matter. 

Sincerely, 

Teresa J. Nelson 
Legal Counsel 

Cc: Attorney General Mike Hatch

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