Montana Capitol Permit Changes Spark First Amendment Debate

Changes were recently made to when Montanans can obtain a permit to use the Capitol Complex.

Because of those changes, some Montanans hoping to get in on the third "No Kings Day" protest at the Capitol Complex this year will have to find a new spot.

Changes to Event Permits at Montana's Capitol Complex

Over the weekend, I came across an article shared by Yahoo! titled 'No, Gov. Gianforte, you cannot cancel our First Amendment rights', and addresses the recent changes to permits for Capitol Complex buildings, specifically the elimination of weekend permits.

Those changes, according to the official website for the State of Montana, says "public events that require a permit may only occur on weekdays and between the hours of 7:00am and 6:00pm, excluding holidays."

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In that commentary, the author, George Ochenski, says Gianforte made a "draconian attempt to gut our Constitutional rights to free speech and assembly since Gianforte decided the public didn’t need to be — and wasn’t — informed of the permit change."

This recent permit change essentially means Montanans hoping to attend 'No Kings Day', a national collective protest scheduled for Saturday, March 28th at the Capitol Complex, will have to find another place to lawfully protest.

What is 'No Kings Day'?

According to the site for 'No Kings Day', the organized protest is intended to "disrupt President Trump's attempts to rule through suppression."

"We are showing up together again on March 28," the site says, "When our families are under attack and costs are pushing people to the brink, silence is not an option."

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"We will defend ourselves and our communities against this administration’s unjust and cruel acts of violence. America does not belong to strongmen, greedy billionaires, or those who rule through fear. It belongs to us, the people."

Can a State Legally Restrict Capitol Permits to Weekdays Only?

This question isn't as simple as most of us wish it would be. In short, yes - they can.

According to the Free Speech Center at Middle Tennessee State University, Capitol grounds are what's considered a "traditional public forum", governments may impose "content-neutral time, place, and manner restrictions."

This means, they can set a limit on the noise level of speech, ban early or late demonstrations, and even cap the number of protestors that may occupy a "given forum."

That said, the government must leave open "ample alternative channels" for speech.

To sum it up, weekday-only permitting would only be seen as "reasonable time restriction", not viewpoint discrimination.

Several Supreme Court cases rulings about permits and protesting are covered in cases including Thomas v. Chicago Park District (2002), Cox v. City of Charleston (4th Cir. 2005), and the more closely related Gaylor v. Thompson (1996), when the court recognized the Wisconsin State Capitol as a traditional public forum, which is significant when looking at the constitutionality of speech restrictions according to Justia U.S. Law.

Can Montanans Challenge the Permit Change and Claim It's to Block the 'No Kings' Protest?

The only precedent I could find where the permit change might be considered unconstitutional is the case of Ramsek v. Beshear (2020).

This case was about Kentucky Governor Beshear's COVID-19 "Mass Gathering Order", which "prevented groups of more than 10 people from assembling for purposes including community, civic, public, leisure, faith-based, or sporting events; parades; concerts; festivals; conventions; fundraisers; and similar activities."

According to the case summary from Justia:

Plaintiffs alleged that the Order, facially and as applied, violated their First Amendment rights to free speech and assembly. While Governor Beshear threatened the plaintiffs with prosecution for holding a mass gathering at the state capitol to express their opposition to his COVID-19-related restrictions, he welcomed a large group of Black Lives Matter protestors to the capitol and addressed those protestors, despite their violation of the Order.

The case was eventually turned back over to district court where the case was ruled in favor of the plaintiffs, the governor's order was rescinded, and the plaintiffs recovered substantial attorney fees as prevailing parties under federal civil rights law.

Obviously, that case took place during COVID-19 and there are a variety of differences between the two situations.

On the other hand - what if it's just a simple rule change and we're all reading into it too much? What do you think? Share your thoughts with us HERE.