Don’t Discriminate Against Political or Religious Groups, Says ACLU

Hoping to stop the City of Escondido from charging higher fees for “political” or “religious” groups to use city facilities than other groups, the ACLU of San Diego & Imperial Counties sent a demand letter to Escondido City Attorney Jeffrey Epps today charging that this city policy violates the First Amendment.

The letter was sent on behalf of the Escondido Manufactured/Mobile Homeowners Positive Action Committee (EMPAC), a coalition of mobile and manufactured home residents who were recently informed that they were being reclassified as a “political” organization, and would have to pay double or almost double what they had been paying before to hold meetings in the East Valley Community Center.

“In assessing fees for using its facilities, the City may not allow officials unbridled discretion to determine when a group is ‘political’ or ‘religious,’” wrote David Blair-Loy, legal director of the ACLU of San Diego & Imperial Counties. “It may not discriminate based on viewpoint. And it may not set fees for the use of City facilities based on the ‘political’ or ‘religious’ nature of a group, which has no reasonable relationship to the City’s costs.”

The ACLU letter noted that the policy “does not contain standards to prevent viewpoint discrimination and in fact discriminates based on viewpoint in setting fees.” The city sent a letter to EMPAC earlier this month informing them that the group had been reclassified as a political organization due to “a review of recent newsletters” and EMPAC’s “recent decision to circulate an initiative petition related to term limits.”

The city policy states that city facilities should be “operated and maintained for the benefit of all community residents.” All facilities are available on a first-come, first-served basis to groups that have at least 12 people, subject to priority for City-sponsored uses. The only groups categorically excluded from using city facilities are those who advocate overthrowing the government by violence, force or unlawful means.

The city policy contains no definitions or standards to determine whether a group is “political” or “religious.” There are not guidelines, for instance, on how much of a group’s activities could be considered political or religious to be classified thusly. This lack of standards improperly creates the potential for viewpoint discrimination. When a policy for access to a limited public forum allows unchecked discretion, it creates too great a risk of viewpoint discrimination to survive constitutional scrutiny.

“The City’s regulation for use of its facilities must comply with the First Amendment,” Blair-Loy wrote. “A financial burden on speech may violate the First Amendment as much as an outright ban.” By opening its facilities to use by the community, Escondido has created either a public forum. Restrictions on speech must be “content-neutral” and “necessary to serve a compelling state interest.”

The mere act of imposing a higher fee on “political” or “religious” groups constitutes viewpoint discrimination. All groups that use city facilities may discuss issues of public concern, including government issues, such as a candidate forum. However, a political or religious group will likely discuss issues from a particular political or religious perspective. “The test for viewpoint discrimination,” Blair-Loy wrote, “is whether the government discriminates against ‘perspectives on a subject matter otherwise permitted by the forum.’”

Since the city has opened its facilities to speech on numerous issues, it cannot set different fees based on the political or religious viewpoints from which those issues are discussed.

Lastly, apart from viewpoint discrimination, the fee structure is unreasonable due to the stated purpose of the forum, which is to “encourage maximum public use and enjoyment of City facilities.” The policy opens the facilities to virtually all groups and allows them to use the facilities for almost any purpose on any subject. Fees are charged only “to recover operating and maintenance costs.” Given that, it is unreasonable for Escondido to set fees based on the nature of the group, since this has no relationship to the operating and maintenance costs. Factors that could affect those costs might be the size of the group or the risk of litter or damage to city property.

The ACLU welcomes the opportunity to discuss this issue with the city attorney of Escondido.