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American Civil Liberties Union of Virginia, News Release
March 21, 2008

ACLU, VOP Demand Repeal of Berryville Ordinance
Town officials told to remove restrictions on demonstrations or face legal challenge

Berryville, VA -- The ACLU of Virginia today told government officials in the Town of Berryville to repeal an ordinance that makes it unreasonably difficult to hold public demonstrations, or to face a court challenge to the ordinance’s constitutionality. The ACLU represents the Virginia Organizing Project, which was recently dissuaded from holding a demonstration in Berryville after being made aware of the ordinance.

“Demonstrations are an important way we bring our message to the public,” said Janice “Jay” Johnson, Chairperson of the Virginia Organizing Project. “The obstacles thrown in our way by the Berryville ordinance make it impossible for us to make people aware of important public issues.”

“For more than 10 years, the Virginia Organizing Project has been holding public demonstrations with local people in communities across the state on a wide range of issues, and this is the first time that we have been blocked from having a public action,” Johnson said. “We wanted to hold a candlelight vigil about the need for affordable housing. I just don’t understand why we couldn’t do that, especially when we are trying to address a critical need identified by local people.”

“It’s hard to imagine any greater affront to American citizens than having government officials tell us we can’t freely gather in public places to express our views,” said ACLU of Virginia Executive Director Kent Willis. “In more than 20 years of dealing with local ordinances that regulate demonstrations in Virginia, I’ve never seen a more restrictive one. The Berryville ordinance can be used to prohibit practically all public gatherings.”

Some of the provisions of the Berryville demonstration ordinance follow:

• A permit is required for any demonstration by three or more persons.
• The cost for a permit is $300.
• Only two demonstrations per year by the same group in the same place are allowed.
• Demonstrations can be denied because they are “detrimental to the public convenience.”
• Liability insurance may be required in any amount approved by the town council.
• On weekdays, demonstrations are allowed only between 10 a.m. and noon, and 1:00 p.m and 3:00 p.m.

The demands from the ACLU and VOP are outlined in a letter faxed earlier today from ACLU of Virginia Legal Director Rebecca K. Glenberg to the Town Manager and Mayor of Berryville. Glenberg asks for written assurances by April 4 that enforcement of the ordinance has ceased and that steps are being taken to repeal it. A copy of Glenberg’s letter follows.

Contacts:
Kent Willis or Rebecca Glenberg, ACLU, (office) 804/644-8022
Joe Szakos, Executive Director, Virginia Organizing Project (cell) 434/981-0885

[ACLU of Virginia]

March 21, 2008

Via Facsimile (540-955-4524) and U.S. Mail

Keith Dalton, Town Manager
Richard G. Sponseller, Mayor
Town of Berryville
23 East Main Street
Berryville, VA 22611

Dear Mayor Sponseller and Mr. Dalton:

I am writing on behalf of the Virginia Organizing Project (VOP), a nonprofit, nonpartisan social justice organization that recently tried to hold a demonstration in Berryville, but was discouraged from doing so because of Berryville’s excessively restrictive permit ordinance. (Town Code §§ 20.1 et seq.) This ordinance is unconstitutional and should be repealed at once.

The United States Supreme Court has long recognized that public streets, sidewalks, and parks “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.” Hague v. Committee for Indus. Organization, 307 U.S. 496, 515 (1939).

The First Amendment therefore limits government’s authority to restrict speech in such public forums. Specifically, any restrictions “m ust not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 130 (1992). Moreover, government officials may not be granted undue discretion to grant, deny, or impose conditions on speech in public places. “A municipality may not empower its licensing officials to roam essentially at will, dispensing or withholding permission to speak, assemble, picket, or parade according to their own opinions regarding the potential effect of the activity in question on the ‘welfare,’ ‘decency,’ or ‘morals' of the community.” Shuttlesworth v. City of Birmingham, 394 U.S. 147, 153 (1969).

The Berryville ordinance contains a multitude of provisions that breach these fundamental First Amendment constraints. For example:

• It requires a permit for any demonstration by three or more persons.
• It prohibits any person or organization from obtaining a permit for the same location twice in a one-year period.
• It allows the town manager to deny any permit if, “in the exercise of sound discretion,” he “considers that the holding of such . . .demonstration would be detrimental to the public convenience.”
• It allows the town manager to impose any conditions upon a demonstration permit “as he may consider appropriate . . to safeguard the public convenience . . .”
• It allows the town manager, in his sole discretion, to require demonstrators to provide liability insurance, in any amount approved by the town council.
• It does not allow any protests “prior to 10:00 a.m. or after 3:00 p.m.; nor from the hours of 12 noon to 1:00 p.m. on any” weekday.
• It prohibits demonstrators from displaying “the flag of or emblem of any foreign state, political party or other group which is engaged in hostilities against the armed forces of the United States of America.”
• It prohibits demonstrators from carrying “any sign, pennant, sticker or other device which contains any scurrilous or obscene words, language or illustrations calculated to arouse public hatred or anger.”

Accordingly, I ask that you provide immediate written assurances that you will cease all enforcement of the permit ordinance, and that you will take prompt steps to repeal it. If such action is not forthcoming, we will not hesitate to take appropriate legal action on behalf of VOP and others similarly affected by the ordinance.

Please respond by April 4, 2008. Should you have any questions, please feel free to contact me at (804) 644-8022. Thank you for your assistance in this matter.

Sincerely,

Rebecca K. Glenberg
Legal Director