CLEVELAND, OH— Freedom First International, The ACLU (Ohio), and a growing list of civil rights organizations are questioning a recent Cleveland City Council’s action repealing and replacing the ordinance regulating demonstrations without any public hearings. The hastily passed legislation updating the City of Cleveland’s permitting process violates protesters’ rights of free speech and assembly. In other communities courts have required conditional use ordinances to set forth “definite specifications in standards” in order to constitute a valid conditional regulation.
The new ordinance applies to parades and protests on city streets, parks, malls and other public spaces. According to the local ACLU “There are several “First Amendment” red flags in the revised ordinance.”
The failure to provide the number of people that would constitute a parade could result in absurd and potentially unconstitutional outcomes. For example, two people who choose to march through a park could be considered a parade and be required to obtain a permit.
A city official might subjectively deny a parade permit application if it was determined that the parade or demonstration is “dangerous,” requires a high number of police officers, or otherwise places a burden on city resources.
The ordinance could prohibit the spontaneous gathering of individuals to meet and peaceably demonstrate in parks or other public places.
It also is troubling that the city council failed to allow the community to comment and engage on the proposed legislation, which would have afforded the opportunity for any issues to be discussed and ironed out.”
The real tests of its constitutionality are awaiting challenge, both in the legislation and in the process city hall establishes. In the event the ordinance condition is found to be arbitrary, the normal procedure would be for the local court to remand the ordinance back to the governing body for further consideration as to whether any modifications to the ordinance are necessary in order to permit the legislative body to take its action.
Obviously, this has an enormous potential to create significant delay. It also provides an issue for an objecting party to raise to both delay and potentially challenge a conditional use ordinance through subsequent legislative review with hope a arbitration will end this unnecessary policy.