ACLU challenges anti-protester rules

Published February 1, 2001

From a tea party in Boston Harbor to Vietnam War marches, protesting against government is firmly rooted in the American psyche.

But a new federal rule imposed by managers of the Grand Staircase-Escalante National Monument has civil libertarians wondering if the government can and should be trusted to regulate free speech on millions of acres of public lands in Utah and elsewhere across the West.

“The recent trend in Utah is to regulate more than is needed to meet the agency’s administrative needs,” said Janelle Eurick, staff attorney for the American Civil Liberties Union.

The ACLU is looking at the new Grand Staircase rule, which mirrors existing rules at other national parks and monuments, to determine if legal intervention is necessary. And ACLU attorneys are questioning the motives of federal land managers who want to require all protesters to obtain permits before protesting.

Eurick said the courts have ruled that parks are public forums worthy of the highest protection of First Amendment rights of free speech and peaceful assembly. “It sets a dangerous precedent anytime they intrude on a traditional public forum,” she said.

All three federal land management agencies in Utah—the National Park Service, the U.S. Forest Service, and the Bureau of Land Management—have rules designed to manage demonstrations and protesters.

The BLM, which manages the new monument, has the least restrictive policy. No permits are required to demonstrate on BLM lands, but protesters cannot block access to roads or buildings. The Forest Service is somewhat more restrictive, requiring permits if the size of the protest is more than 75 people.

“Our regulation is written with the assumption the permit will he granted,” said Rose Davis, spokeswoman for the regional forester’s office in Ogden, Utah. If the size of the group is more than 75, “we recognize that many people would have an impact on public lands, and we take into consideration things like rutted roads in the spring or calving season or endangered species. Even then, the permit is processed very quickly, and the regulation is very clear that we do not address what it is (the protestors) want to say.”

The National Park Service is much more restrictive. Its rule does not specify how many protesters must be involved before a permit is required, only that a permit is needed. It also requires each park to designate an area (or areas) suitable for protests and handing out pamphlets; protests are banned anywhere else in the park. The Park Service rule, developed to address the daily protests taking place at the National Mall in Washington, DC, requires anyone wanting to protest in national parks to estimate the number of people who will participate, and to provide logistical information about time and place.

“It is not our intention to discourage First Amendment activities, but we do have to regulate them,” said Paul Henderson, chief of interpretation at Canyonlands National Park. “People certainly have the right to exercise their free speech, but we also have to ensure those activities don’t interfere with other folks who are here to just enjoy the park.”

The Park Service rule applies to groups or individuals who want to hand out leaflets or carry signs. The rule requires the Park Service to designate areas that are readily accessible and to process permit applications without delay. The topic of the protest is not a consideration in processing the permit, Henderson said.

The Grand Staircase rule, implemented recently, came to the attention of the ACLU after the Memorial Day weekend arrest of two environmental activists with the Escalante Wilderness Project. The protesters refused to move their table with leaflets at the request of monument managers.

Patrick Diehl spent two nights in jail, and Juniper Allison spent one. “We felt we had the right to free speech, and we truly believe we never blocked access to the visitors center,” Allison said. “I feel this (new rule) is clearly an attempt to control free speech.”

According to Sally Wisely, state BLM director, the new rule is “intended to make sure that visitors to Grand Staircase-Escalante National Monument have safe access to our visitors centers and to other monument facilities.” The rule also seeks to prevent confrontations between opposing groups and to protect special places within the monument.

Managers have yet to close any area in the monument to demonstrations, and they insist visitors centers—the areas protestors would most likely want to demonstrate—will not be closed under the new policy.

“The rule allows us to close areas, but we haven’t done it yet,” said Kate Cannon, monument manager. “Any permit will have provisions that will protect public access and prevent damage to resources.”

Because the monument rule does not limit protests to designated areas, it is actually less restrictive than the National Park Service rule, Cannon said.

The Grand Staircase rule marks the first time the BLM has ever implemented a rule specifically to manage public protests. That move is warranted, said Rem Hawes, a BLM spokesman in Washington, because Grand Staircase is the first national monument to he managed by the BLM.

Still, the Grand Staircase rule “is quite similar to the Park Service rule. We not only looked at their rule, but the folks who drafted our rule talked to the attorneys who dealt with that whole issue,” Cannon said.

Allison is concerned because the new rule would require activists to first obtain a permit before handing out leaflets at trailheads. “Personally, I feel demonstrations are groups of people gathered together, not one or two or three people behind a table or handing out leaflets,” she said.

Heidi McIntosh, issues coordinator for the Southern Utah Wilderness Alliance, said the arrests of environmental activists are a serious matter, but she is more concerned that federal land managers feel a need to impose more and more rules and regulations addressing free speech on public lands. As long as people are not harassing visitors or impeding their access to public lands, everyone should he allowed to express their views, she said.

When park managers set aside an area where demonstrators can have reasonable access to visitors, like visitors centers, “we really don’t have a problem with that,” McIntosh said. “But if they want to say we can’t talk to visitors or give them information elsewhere in the wide open spaces, we would have a problem with that. So far, they haven’t tried to stop us from doing that.”

McIntosh questions why federal land managers feel so threatened by public protests and criticism of the way they do their jobs. She notes the BLM has in recent years even shied away from public hearings where people can air their grievances, moving instead to “open house” formats where BLM staff make presentations and public dissent is relegated to written comments.

“The beauty of the First Amendment is that it allows us to express controversial views,” McIntosh said. “No one goes out to express opinions that everyone agrees on. Protests are about sparking controversy.”

Jerry Spangler is a staff writer for the Deseret News. This article is reprinted from the September 16, 2000 edition.