Constitutional Law of the
Liability Insurance for Street Protests: Who
Should Pay for Freedom of Speech?
Prof. Ronald B. Sklar
McGill Faculty of Law
April 22, 2008
American cities routinely require demonstrators to purchase liability insurance before
they are permitted to march in the street.1 The requirement usuallycomes by way of a municipal
ordinance that regulates the issuance of permits for outdoor gatherings and parades. It is justified
as a way to protect municipalities from liability for potential property damage or personal injury
claims arising from the activity. The cost of the insurance can be as high as several thousand
dollars. Across the United States, individuals and organizationshave challenged insurance
requirements in state courts and circuit courts, claiming they amount to unconstitutional
restraints on free speech. The Supreme Court has ruled on several occasions that municipalities
may charge applicants certain fees before granting them a permit, but it has yet to rule
specifically on whether those fees can include liability insurance.
Plaintiffs havecentered lower court and circuit challenges to liability insurance on two
grounds, both of which attack the fundamental legitimacy of such requirements in light of the
speech protections granted by the First Amendment to the Constitution. The first ground is that
the calculation of the amount of liability insurance required for a protest necessitates a content-
based evaluation of theactivity, and is thus a constitutionally impermissible prior restraint on
speech. Plaintiffs argue that insurance companies look at the content of the proposed speech
to assess the risk of property damage and personal injury in calculating the premium. The
municipality thus engages in viewpoint discrimination when it requires demonstrators to submit
to insurance company policies. Thesecond ground for a constitutional challenge is that insurance
requirements impose an economic burden on speech that is unconstitutional. This argument is
rooted in the broader claim that it is unconstitutional to create economic barriers to the exercise
Heidi Boghosian, Punishing Protest: Government Tactics that Suppress Free Speech (The National Lawyers
Guild, 2007),http://www.nationallawyersguild.com/punishing.htm at 25.
of a constitutional right.
In this paper, I will analyze the likely success of a challenge to liability insurance
requirements at the Supreme Court level. My hypothetical plaintiffs will be demonstrators
engaging in political speech in a public forum. This seems to me the most important speech
toconsider, since it goes to the heart of what the First Amendment is intended to protect. It is
important to note however, that permit schemes do not always distinguish between “low-value”
commercial speech and political speech. I will also address the following question: Who should
pay for the financial costs of exercising the right to free speech?
II. Analysis: Likelihood of Success atthe Supreme Court
A. Ground number one- Requiring protesters to purchase insurance constitutes viewpoint
What is the likelihood that the Supreme Court will rule that insurance requirements can
never be viewpoint-neutral as applied to political protest, and are thus always unconstitutional?
It will depend on how the Court characterizes liability insurance. If insurancefees are likened to
other fees, such as administrative fees, traffic control fees, clean-up fees, or transportation fees,
then the Court will not likely declare them unconstitutional per se. It has repeatedly interpreted
the First Amendment to mean that it is constitutional for municipalities to require individuals
to meet certain criteria prior to being issued a permit to engage in...
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