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Freedom of assembly wins at Augusta
Inside the First Amendment

By Ken Paulson
First Amendment Center executive director

Editor's note: Ken Paulson was named editor of USA TODAY on April 29, effective immediately.

Phil Mickelson was not the only winner at Augusta.

Just days after Mickelson captured the title at the 2004 Masters golf tournament, Martha Burk also won at Augusta.

No, the chair of the National Council of Women’s Organizations didn’t prevail in her battle to have the Georgia country club admit women to its membership. She did, however, win a pivotal First Amendment victory when the 11th U.S. Circuit Court of Appeals struck down the ordinance that had limited her organization’s right to protest.

When Burk had announced plans for protests at the 2003 Masters, the local government quickly passed an ordinance requiring permits for public demonstrations involving five or more people. Augusta-Richmond County officials said the ordinance was needed to maintain public safety and minimize traffic problems.

The ordinance gave officials the power to limit Burk’s protests to a location some distance from the tournament site, away from the front gates of the golf course. The turnout at that remote location was modest, and the protest was largely regarded as a failure.

“When it turned out that reporters outnumbered demonstrators by 2 to 1, and an Elvis impersonator and drag queen stole the spotlight, the verdict was that (Augusta National Chairman) Hootie (Johnson) won and Martha lost, decisively,” Alan Shipnuck wrote in Sports Illustrated.

But Burk has rebounded. In a 2-1 decision, the federal appellate court concluded that the county violated the First Amendment by targeting protests and demonstrations, as opposed to other activities involving groups of people. Under the First Amendment, government is prohibited from favoring one form of speech over another.

As the court pointed out, the same public safety and traffic concerns the county cited in passing the ordinance would come into play if five or more people gathered for a musical performance or even a tailgating party. The county appeared to be interested only in regulating groups expressing political viewpoints. This narrow focus made the ordinance constitutionally suspect.

The court also struck down a system requiring those applying for a protest permit to indemnify the county for any possible damages that might occur in a demonstration. The wording of the ordinance was vague, simply requiring that the indemnification be “in a form satisfactory to the attorney for Augusta, Georgia.” Basically, this provision left the decision about whether to issue a permit in the hands of a single individual, unrestrained by guidelines or restrictions. As the court pointed out, this could lead to “undetectable censorship.”

On a national basis, this decision means that any municipality or county anticipating a protest march or rally should take a close look at any ordinances governing permits for demonstrations.

Courts have long permitted governments to regulate the time, place and manner of public demonstrations as long as they don’t target free speech. Carefully written ordinances can preserve public safety and minimize traffic problems, but the rules have to be applied neutrally, and the guidelines have to be clear.

This case reminds us of the role that the right to assemble plays in our democracy. In some ways, it’s one of our least-appreciated freedoms, but it has helped shape history as surely as our freedoms of press, speech and religion.

The 11th Circuit’s decision is a valuable reaffirmation of the power of protest and the right to be heard.

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