Quien deberia pagar el costo del derecho a la libertad de expression

Constitutional Law of the
United States
PUB2 102

Claire Gilchrist

Liability Insurance for Street Protests: Who
Should Pay for Freedom of Speech?

Prof. Ronald B. Sklar
McGill Faculty of Law

April 22, 2008

I. Introduction

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.

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Writing Sample
Claire Gilchrist

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

discrimination

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...