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7th Circuit affirms preliminary injunction to allow pro-marijuana rally

June 8, 2017

A pro-marijuana nonprofit organization may be able to hold a rally on the steps of the Tippecanoe County Courthouse after the 7th Circuit Court of Appeals affirmed a preliminary injunction against the county’s policy for approving courthouse events.

After a controversy over a nativity scene placed on the grounds of the Tippecanoe County Courthouse in 1999, the Tippecanoe County Board of Commissioners declared the grounds a “closed forum” and developed a policy for demonstrations and displays on the property. The policy holds “only displays and events sponsored and prepared by a department or office of county government will be allowed in the windows of the Tippecanoe County Office Building or on the grounds of the Tippecanoe County Courthouse.”

The policy further requires groups seeking to hold events on the courthouse grounds to obtain the board’s sponsorship, which the county says it will only give to “events that essentially echo the County’s views.” With the policy in place, the county passed a resolution to allow the “’Round the Fountain Art Fair” to take place on the courthouse grounds each year, while also allowing other events, such as Fraternal Order of Police event, to take place on the property.

However, other groups have used the courthouse grounds without the county’s permission, including the Higher Society of Indiana, a group that advocates for the legalization of marijuana in Indiana. A county official mistakenly told Higher Society its event was sponsored, which prompted the group to use a podium on a balcony above the courthouse door, hang banners from the balcony and use an amplifier until it was ordered to stop.

Higher Society then sought permission to hold a second rally, but the board declined to sponsor it. Higher Society then sought a preliminary injunction, which Judge Philip P. Simon of the U.S. District Court for the Northern District of Indiana granted in December 2016. The ACLU of Indiana brought the suit on behalf of Higher Society one year ago, claiming a violation of the group’s First Amendment rights.

The county then appealed in Higher Society of Indiana v. Tippecanoe County, Indiana, 17-1089, but the 7th Circuit Court of Appeals affirmed the injunction Wednesday, finding the county’s policy for holding events on the courthouse grounds violated the First Amendment by restricting private speech and not being viewpoint-neutral. Specifically, Judge Daniel Manion wrote the county conceded its policy is not viewpoint neutral, meaning it would be “unconstitutional even under the most restrictive forum analysis.”

Further, Manion noted there is no indication the grounds were previously used for government speech or that governments used events conducted by private groups to deliver their own messages. Additionally, “reasonable people would not attribute to the government the views expressed at protests and rallies on government property,” the judge said, and the county does not maintain editorial control over individual speakers at events.

Because Higher Ground is likely to succeed on the merits of its First Amendment Complaint, the district court did not abuse its discretion in granting the preliminary injunction.

“We understand that the County is in a difficult position,” Manion wrote. “It would like to open the courthouse grounds to some events that it believes add cultural or civic value to the community, yet it doesn’t want to create a public forum for everything under the sun. It may still be possible for the county to accommodate some of its concerns … while closing the grounds to Higher Society’s rally and not violating the First Amendment, but the current policy will not suffice.”
 

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