Dearborn May Not Require That Demonstrators Waive All Legal Claims

So holds Stand Up For America Now v. City of Dearborn (E.D. Mich. Apr. 5, 2012). Plaintiffs (including Terry Jones, the Koran-burning pastor) asked for a permit to “speak[] to the public from the grassy across from the Dearborn Islamic Center on Saturday, April 7, 2012 [the day before Easter] regarding the dangers of Sharia law and how it threatens American freedoms,” and “to distribute a flyer which includes Stand Up America Now’s contact information and a quotation from the Holy Bible: ‘Jesus answered, ‘I am the way and the truth and the life. No one comes to the Father except through me.’ John 14:6.'” They “estimate approximately 20-25 people will attend the event” (I take it they refer to attendance by their sympathizers, and don’t include any possible critics or counterdemonstrators).

A Dearborn ordinance “requires the sponsor of an event to sign an indemnification agreement with terms established by the legal department,” and “leaves unfettered discretion with the legal department” as to the terms. In this instance, the legal department said it would grant a demonstration permit, but only if the group signed a release that said,

In consideration for the right to utilize City of Dearborn property, Standup America! and Wayne Sapp, their employees, representatives, agents, and participants agree to RELEASE AND FOREVER DISCHARGE the City of Dearborn, a municipal corporation, and its officers, employees, and agents, from any and all claims, liabilities, or lawsuits, including legal costs and reasonable attorney fees, resulting from their activities on the City of Dearborn property.

The opinion did not say whether this was the standard agreement used for all demonstration permits, or whether other groups were given permits without having to sign such a broad waiver. In any case, the court said requiring the waiver was unconstitutional:

The clause encompasses not only liability for physical harm to the permittees, but also for deprivation of permittees’ constitutional rights. “We think it obvious that permittees cannot be required to waive their right to hold the City liable for its otherwise actionable conduct as a condition of exercising their right to free speech.” Long Beach Area Peace Network, 574 F.3d at 1040. The clause also requires permittees to assume legal and financial responsibility even for those activities at the event that are outside of the permittee’s control, including activities of the City. Id. The ordinance requiring the indemnity agreement and the “Hold and Harmless” presented to Plaintiffs are unconditional [likely a typo for “unconstitutional” -EV] and violate the First Amendment to the United States Constitution as to Plaintiffs and others who wish to exercise their rights to speak and assemble in the public fora.

The court thus granted a temporary restraining order allowing the demonstration without plaintiffs’ having to sign the release. Seems correct to me. Thanks to Prof. Howard Friedman (Religion Clause) for the pointer.