Want to hand out pamphlets on the town green? You’ll need a permit.

UPDATED (Feb. 29, 2024): VICTORY! After FIRE and our supporters wrote to the town about the unconstitutional provisions in the proposed Town Green policy, Suffield’s Board of Selectmen informed FIRE that it will not move forward with the policy. The decision is a great outcome for any would-be pamphleteers — or anyone else who wants to exercise their First Amendment right to free expression on the Town Green. FIRE commends Suffield’s leadership for their swift decision to abandon the policy. 

The town plan for Suffield, Connecticut, settled in 1670, included “a convenient piece of land of about 20 to 30 acres laid in [the] center of town for Common use,” a grassy space that became known as the “Town Green.” Now, more than three centuries later, Suffield’s government is proposing restrictions on use of the Town Green that would depart from its rich tradition as a public forum and violate the First Amendment.

Last week FIRE wrote Suffield, calling on the town to remove or revise the proposed policy’s unconstitutional provisions. Now, we’re asking everyone who cares about free speech to join us in urging the town government to respect its residents’ First Amendment rights.

The proposed policy would make for a great issue-spotting question on a law school final, but that’s the only place anyone should find it. For starters, it requires a permit for any “use” of the Town Green, defined to include any “activity, event, and/or display.” Think about how broad that language is. Any activity requires the government’s permission? As we told Suffield, this “broad definition of ‘use’ easily encompasses an almost limitless range of expressive activity, from an acoustic guitarist to a book club meeting, from a ten-person protest to a lone pamphleteer.” 

The Suffield Town Green has served as a venue for expression and a symbol of democratic values dating back to colonial times. Let’s keep it that way. 

Certainly, local governments can require permits for certain events and activities, like those involving large groups and/or competing desires to use the same space at the same time, or those requiring road or park closures. But courts have repeatedly struck down policies requiring even individuals and small groups to obtain a permit for expressive activity in traditional public forums like the Town Green. Those decisions are consistent with the Supreme Court’s recognition that: 

[M]embers of the public retain strong free speech rights when they venture into public streets and parks, which have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.

Suffield’s Town Green has long been precisely this kind of public gathering ground. In 1870, the town celebrated its bicentennial on the green, where a “large tent was erected,” “the ladies prepared their choicest viands,” and the day’s program included a procession and “oratorical exercises” (what someone not wearing a tophat and monocle might refer to as “speeches”).

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Not only would Suffield’s proposed policy require a permit for literally any activity or display on the green, it would compel those seeking permits to apply at least 30 days in advance. A universal 30-day advance application requirement is excessive, in part because it makes no allowance for spontaneous expression and assembly in response to breaking news and events, as the First Amendment demands.

The policy would also mandate that Town Green users pay for law enforcement if Suffield determines such security is necessary. That raises the troubling prospect of an unconstitutional “heckler’s veto,” in which Suffield’s government imposes greater costs on those whose views it thinks may elicit angry reactions. Suffield may require event holders to pay actual administrative expenses unrelated to the expressive content of an event, but as the Supreme Court has made clear, speech “cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.” 

The same problem lies with Suffield’s proposed requirement that all permit applicants obtain at least $1,000,000 in liability insurance — and maybe more if Suffield determines the event’s risk warrants it. Any insurance requirement must be tied to the risk of the specific activity in question — surely a book club meeting doesn’t need $1,000,000 in coverage — and can’t be based on an event’s expressive content. Missing from the law enforcement and insurance provisions are standards necessary to guide official decision-making and prevent these unconstitutional outcomes.

What else is wrong with the draft policy? Well, say you’re an acoustic guitarist who wants to leave his case open to accept donations. No dice. The policy would ban Town Green users from engaging in any activity for “private profit.” It wouldn’t even allow such activity with a permit. But as we told Suffield:

Speech does not lose constitutional protection simply because the speaker is paid to speak or solicits contributions in the course of disseminating a message. Likewise, expressive materials like newspapers and artwork receive full First Amendment protection regardless of whether they are sold or given away. Suffield cannot categorically ban expressive activity in a traditional public forum for the sole reason that money changes hands.

That’s not even an exhaustive list of the proposed policy’s problems, which FIRE’s letter details in full. 

FIRE has experience with local governments restricting expressive activity in public forums beyond what the First Amendment allows. Fortunately, we’ve recently secured a couple victories on that front. With your help, we can do it again. 

The Suffield Town Green has served as a venue for expression and a symbol of democratic values dating back to colonial times. Let’s keep it that way. Tell Suffield’s government to revise the proposed Town Green policy so it respects the fundamental rights of citizens to freely express themselves in this centuries-old public forum.