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Court rules in favor of peace rally; Town of Blooming Grove must pay

By Fritz Mayer
August 3, 2011

A federal appeals court ruled on July 28 that the Town of Blooming Grove in Orange County must pay $200 to a resident and $42,000 to her lawyer for the way it handled an application to hold a peace rally in the fall of 2006.

The Rev. Alexandra Coe applied for a permit to hold the rally on the lawn of the Moffat Library, which is located in the Village of Washingtonville, but is owned by the town. Town officials required her to get an insurance policy for $1 million to hold the rally, which she said she could not afford.

She was finally able to hold the rally, but because there was uncertainty about whether it would happen, Coe was unable to adequately promote the event, and it attracted only about 10 people. Therefore, Coe argued, the rally had less of an impact than it would have had if she had been granted the permit in a timely manner.

The case worked its way through the courts for five years, and several issues were addressed in opinions from the U.S. Court of Appeals Second Circuit and earlier, the Court of the Southern District of New York.

The town argued that the library lawn was not a “traditional public forum.” But in part because the town had allowed groups such as the Veterans of Foreign Wars to use the lawn for ceremonies on Veterans Day and Memorial Day, the district court ruled that the lawn is a traditional public forum.

It’s not clear from court documents, but it appears that town officials did not require the VFW to post insurance before using the lawn. What is clear is that there was a township ordinance that allowed town officials to adjust the amount of insurance required. The court agreed with Coe’s attorney, Stephen Bergstein, that the ordinance was unconstitutional because it provided no guidelines about how to adjust the fees.

The court, quoting a previous case, said a regulation that allows officials to arbitrarily impose higher fees for some applicants and lower fees for others “has the potential for becoming a means of suppressing a particular point of view.”

Another aspect of the ordinance that Coe objected to was that it had no exception for people who can’t afford to pay the fee, which the court called an indigency exemption. The district court wrote, “In contrast to whatever undefined benefit the lack of an indigency exemption may provide the town, the burden it imposes on the First Amendment rights of plaintiff and others of limited financial means is real, severe and unacceptable.”