May 21, 2019

Tenth Circuit: Insurance Requirement for Parade Not Narrowly Tailored to Serve Government Interest

The Tenth Circuit Court of Appeals issued its opinion in iMatter Utah v. Njord on Monday, December 22, 2014.

iMatter Utah is a voluntary association concerned with climate change that sought to have a parade on State Street in Salt Lake City. The city granted iMatter a permit for the event, conditioned on the group’s ability to obtain an additional permit from the Utah Department of Transportation. Before granting a permit for a parade on a state highway (State Street is considered a state highway for this purpose), the Utah DOT requires applicants to obtain liability insurance coverage with minimums of $1,000,000 per occurrence and $2,000,000 aggregate, and also to sign a waiver of indemnity. iMatter claimed it could not afford the insurance and sought a waiver of the requirement, which the Utah DOT denied. iMatter then sought a temporary restraining order in the U.S. District Court for the District of Utah, which was denied. iMatter held its parade anyway, but because it failed to obtain the permit, it could only march on the sidewalks. iMatter held a second parade later that year, again refusing to comply with the insurance and indemnity requirements and again marching on the sidewalks. Another environmental group also held a parade on the sidewalks because it could not afford the cost of insurance. Both groups sued Utah in the U.S. District Court for the District of Utah, naming several individual defendants and alleging constitutional violations. All parties moved for summary judgment, and the district court granted plaintiffs’ motion. Utah appealed on a single question: whether its insurance and indemnification requirements violate the First Amendment.

The Tenth Circuit discussed the First Amendment’s mandate of free speech and the balance allowed for protecting government interests. The parties agreed that State Street is a traditional public forum, and in order for the government to impose restrictions on free speech in a traditional public forum, those restrictions must (1) be justified without reference to the content of the speech, (2) be narrowly tailored to serve a significant government interest, (3) leave open ample alternative channels for the communication, and (4) not delegate overly broad licensing discretion to a government official. iMatter brought facial and as-applied challenges to Utah’s insurance and indemnity requirements. The Tenth Circuit addressed the as-applied challenge first.

iMatter argued Utah’s requirements were unconstitutional as applied to its permit application because indigent applicants were not exempt from the requirements. The Tenth Circuit noted a circuit split regarding whether the government must exempt indigent applicants from otherwise constitutional permit requirements, and agreed with the First and Sixth Circuits that the constitution does not require indigency exemptions as long as there are suitable alternative forums for the speech. In the instant case, there was a suitable alternative that iMatter utilized—the sidewalk. Therefore, the as-applied challenge failed.

Turning to the facial challenge, the Tenth Circuit examined Utah’s insurance and indemnification requirements under the four criteria for restrictions on free speech in a traditional public forum. The parties agreed that the restrictions are content-neutral, satisfying the first prong. However, the Tenth Circuit found that Utah could not explain how the requirements were narrowly tailored to serve a significant government interest. Utah asserted that its insurance and indemnity requirements were necessary to maintain public order and safety, but the Tenth Circuit found no connection between the insurance and maintaining order and safety. As for Utah’s interest in protecting itself from liability, the Tenth Circuit found very little possibility that Utah would be liable for any activity connected with a parade, given the broad scope of Utah’s Governmental Immunity Act. Utah’s insurance requirement is not narrowly tailored to any objective characteristic of a parade, and as such is unconstitutional. The Tenth Circuit next examined Utah’s indemnity requirement and likewise found that it was not narrowly tailored to protect the state from financial liability.

The district court’s grant of summary judgment was affirmed.

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