Donald M. Peters 005929
5225 North Central, Suite 235
Phoenix, AZ 85012

Attorneys for The Arizona Civil Liberties Union


               Plaintiff,               NO. CR-98-502-1-PCT-RGS

vs.                                     MEMORANDUM OF AMICUS
                                        CURIAE ARIZONA CIVIL

The Arizona Civil Liberties Union agrees with the defendant that the regulatory scheme in question imposes an unacceptable burden on First Amendment rights.

One aspect of the scheme is particularly troubling. To obtain a permit. an applicant must agree to pay the United States for any damages which may result from the event. The applicant must also agree to indemnify the United States for any resulting losses.

The liability which a permit applicant must agree to accept by virtue of these requirements depends, in part, on the number of people who may show up. It also depends in part upon the temperament and conduct of those people. These and other variables are beyond the control of any potential permit applicant. The permit applicant must therefore agree to pay a price for the right to assemble which is uncertain and uncontrollable--and potentially ruinous.
The resulting chill on free assembly is particularly acute in connection with an "organization" like the Rainbow Coalition. It is a loosely affiliated collection of citizens. Those citizens are not engaged in any common economic enterprise. There is no hierarchical structure to which the individuals involved are answerable. There is no legal entity through which those individuals act collectively or can be held collectively accountable. First Amendment rights obviously cannot be restricted to those who organize themselves in a manner which is convenient for the government. From the Boston Tea Party on, much of our history has been made by groups of citizens "who were no more structured than the Rainbow Coalition, and often less peaceful. No member of such a fluid association, however, can reasonably be expected to assume complete financial responsibility for whatever might be done by whoever might show up.

It may be assumed that Congress could constitutionally give the Forest Service a right to seek damages or indemnity from anyone who might cause damage to a national forest. The situation here is distinct. The regulatory scheme in question conditions the exercise of First Amendment rights upon an assumption of liability, not only for one's own misconduct, but for the potential misconduct of others. A permit applicant must agree to serve as a kind of guarantor for the behavior of strangers. Such an approach simplifies the government's task in the event of damage. It does so, however, at the expense of free assembly.

It is not invariably unconstitutional to extract a fee in connection with the exercise of First Amendment rights. See Cox v. New Hampshire, 312 U.S. 569 (1941) (upholding statute which required demonstrators to obtain a license and pay a nominal fee). Fees which are more than nominal, however, raise serious First Amendment issues.

A situation with some similarities to this one was presented in Central Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515 (11th Cir. 1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (1986). At issue was an ordinance which

conditioned the right to have a public demonstration on prepayment of fees -for additional police protection. The amount which a demonstrator might have to pay depended upon the city's assessment of how much additional police protection might be needed, which depended in turn on how controversial the demonstration might be expected to be. In effect, demonstrators had to agree in advance to indemnify the city for anticipated damage to its fisc. The Eleventh Circuit, interpreting Cox v New Hampshire as authorizing the imposition of fees only when the fees were "nominal." concluded that the ordinance was unconstitutional. 774 F.2d at 1522.

The same conclusion should be reached here. One wonders if the Sermon on the Mount would ever have been uttered if one of those attending had been required to assume complete financial responsibility for anything which anyone in the crowd might have done to the Mount.

September 22, 1998.

By: Donald M. Peters
Donald M. Peters
5225 North Central, Suite 235
Phoenix, AZ 85012
Attorneys for The Arizona Civil Liberties Union

Copies of the foregoing mailed this 22nd day of September, 1998 to:

Scott Bales
Assistant United States Attorney
4000 U.S. Courthouse
230 North First Avenue Phoenix, AZ 85025
Attorney for Plaintiff


Michael D. Linick, aka Strider
707 West Bridle Path
Payson, AZ 85541
Defendant/Pro Se