This case arises out of permitting problems that were encountered by two groups who wished to march down State Street in Salt Lake City to raise awareness about climate change. The Utah Department of Transportation (UDOT) required the two groups, iMatter Utah and Positive Change Utah, to obtain insurance for the events and to sign an indemnification form that would protect UDOT and the State of Utah from liability for certain actions that might occur during the march. The members of the climate change groups argue that the insurance and indemnification requirements are unconstitutional because these provisions burden the exercise of the Plaintiffs’ rights under the First Amendment of the United States Constitution. The UDOT responds that the requirements are content-neutral time, place, and manner restrictions that do not impermissibly restrict the Plaintiffs’ speech. The parties have submitted motions for summary judgment and for partial summary judgment. For the reasons stated below, the court finds that the insurance and indemnification requirements are not constitutionally sound and should not be enforced against the Plaintiffs as currently written.
FACTUAL BACKGROUND
I. Plaintiff iMatter Utah
iMatter Utah is an unincorporated, voluntary association that holds weekly meetings to discuss issues of climate change and to brainstorm strategies to engage the community on these issues. The Utah group is a chapter of iMatter, a nationwide organization that raises awareness about climate change and focuses on youth involvement. The Utah chapter includes a number of students who attend high school
iMatter Utah organized a parade scheduled for May 7, 2011. This Marade, as it was called by the group, sought to put pressure on Utah’s political leaders to address climate change. The group planned to march along State Street past various key government buildings, including the Wallace F. Bennett Federal Building and the Salt Lake City and County Building. The group applied for and received a free expression permit from Salt Lake City for the event, but because State Street is also a Utah state highway and therefore falls under the State’s jurisdiction, the permit was conditioned on the group’s ability to obtain an additional permit from UDOT.
A. Liability Insurance Requirement
Before granting a permit to march on a state highway, UDOT requires an applicant to obtain a liability insurance policy for the event:
The applicant shall obtain and provide proof of liability insurance at time of application naming the “State of Utah, the Department and its employees” as additional insured under the certificate, with a minimum $1,000,000 coverage per occurrence and $2,000,000 in aggregate.
Utah Admin. Code r. 920-4-5. iMatter Utah made some inquiries about the cost of such a policy and determined that the premium would be approximately $2,500. This estimate is in dispute, and the Defendants assert that iMatter Utah could obtain a policy for a much lower premium of $865. The Honorable Clark Waddoups, during a hearing in which he denied the Plaintiffs’ Motion for a Temporary Restraining Order, found that the Defendants’ estimate for the insurance premium was more credible. {See Hr’g Tr. 7-8, May 5, 2011, Dkt. 17.) Regardless of the amount of the premium, iMatter Utah contends that it is a voluntary association with no assets and that it is unable to pay for an insurance policy.
Mr. Pleune contacted UDOT and requested that the insurance requirement be waived on the grounds that the event consisted of political speech and free expression and was therefore protected by the First Amendment. UDOT responded that it did not “treat a political and free speech event any different from other events” and denied Mr. Pleune’s request. {See Email from Mark Velasquez, Ex. A to Am. Compl., Dkt. 20.) UDOT explained that, for any use of a state road other than normal traffic movement, the liability insurance was mandatory and required by Utah state regulations. See Utah Admin. Code r. 920-4-5.
B. Indemnification Requirement
UDOT also required iMatter Utah to sign a Waiver and Release of Damages. The waiver stated that the participants in the event agreed to “release, remise, waive and forever discharge the State of Utah, the Utah Department of Transportation, the Utah Transportation Commission, the Utah Highway Patrol, and their officers, agents, and employees from all liability, claims, demands, actions or causes of action” that could result from participation in the march. (Waiver and Release of Damages, Ex. C to Am. Compl., Dkt. 20.) UDOT demanded that all participants in the event sign the waiver and required iMatter Utah to submit the application at least fifteen days before the scheduled parade.
After iMatter Utah filed this lawsuit, UDOT amended its regulations. UDOT no longer requires participants in a free speech event to sign the Waiver and Release of Damages. See Utah Admin. Code
indemnify, defend and hold the State of Utah [et al.] harmless from and against any claim or demand for loss, liability or damage ... arising out of or resulting from: (a) any act or omission by the Permittee, its officers, agents, employees or any persons under Permittee’s control insofar as permitted by law concerning Permittee’s use or occupancy of the state road right-of-way; and (b) from and against all actions, suits, damages and claims brought or made by reasons of Permittee’s non-observance or non-performance of any of the terms of the Permit or the rules, regulations, ordinances and laws of the federal, state or local governments.
Indemnification Form, http://www.udot. utah.gov/main/uconowner .gf?n= 12862231458643644 (last visited Oct. 31, 2013) [hereinafter Indemnification Form]. UDOT also withdrew its demand that all participants sign the form fifteen days before the event.
iMatter Utah did not obtain an insurance policy or sign the original waiver. Instead, the group filed this lawsuit a few days before the march and sought a temporary restraining order. Judge Waddoups denied this request on May 5, 2011. He found that iMatter Utah had not shown that it was substantially likely to succeed with its suit and that it had failed to meet its burden of establishing that the group would suffer irreparable harm. (See Hr’g Tr. 3,11, May 5, 2011, Dkt. 17.)
Despite failing to obtain a TRO, iMatter Utah proceeded with its Marade. The group chose to march along State Street on the sidewalks instead of the street itself, since the parties agreed that marching on the sidewalks did not require a UDOT permit. Approximately 150-200 people participated in the event. iMatter Utah asserts that obstructions as well as the narrowness of the sidewalk made it difficult for the group to march in formation or unfurl the group’s banner.
iMatter Utah then organized a second march for September 24, 2011. The group planned to begin the procession with a rally on the front steps of the Utah State Capitol before proceeding down State Street past the Federal Building to the City and County Building for a second rally on Washington Square. iMatter Utah again applied for a permit application from UDOT and was again denied for its failure to obtain liability insurance and sign the indemnification form. Although UDOT had amended its original waiver requirement to accommodate free speech events as noted above, iMatter Utah maintained that the new indemnification form still did not pass constitutional muster. The group again marched down the sidewalks of State Street instead of in the road.
II. Plaintiff Alex Mateus
In August 2011, Plaintiff Alex Mateus formed a group known as Positive Change Utah to advocate for issues involving climate change. Mr. Mateus planned to have a parade on October 8, 2011, in which participants would march along State Street from the Utah State Capitol to the Salt Lake City and County Building. He applied for a permit from UDOT on August 29, 2011, after he was granted a conditional permit for his march from Salt Lake City. Like iMatter Utah, Mr. Mateus was required to obtain a liability insurance policy and sign an indemnification form. At the time, Mr. Mateus was unemployed and told UDOT that he could not afford the premium for an insurance policy, which he believed would cost in the range of $300 to $500. When UDOT denied his request
iMatter Utah and Mr. Mateus have both filed Motions for Partial Summary Judgment (Dkt. 51 & 110) and the Defendants have filed a cross Motion for Summary Judgment (Dkt. 81). Mr. Mateus also filed a Motion to Strike Affirmative Defenses (Dkt. 46), which the court denies as moot because it presents arguments that are resolved by the various motions for summary judgment. Finally, the Defendants have filed a Motion to Exclude the Testimony of Dr. Andrew Utterback (Dkt. 78), an expert who submitted a report on behalf of the Plaintiffs.
The Plaintiffs argue that the insurance and indemnification requirements violate the First Amendment because they are not narrowly tailored to serve a significant governmental interest and do not leave open ample alternatives for communication. The Plaintiffs also challenge UDOT’s previous waiver and advance identification requirements and maintain that the Defendants violated their due process .rights under the Fourteenth Amendment by failing to provide a mechanism through which the Plaintiffs could establish that they were indigent and entitled to a permit. Finally, the Plaintiffs seek damages for the harm they suffered, as well as attorneys’ fees and costs under 42 U.S.C. § 1983 and § 1988.
The Defendants dispute these claims and bring up several issues of justiciability. First, Defendants argue that iMatter Utah does not have standing to challenge the insurance requirement because the group has not shown that it is indigent and unable to pay the necessary premium. Defendants additionally challenge the standing of Mr. Mateus, claiming that Mr. Mateus has not adequately provided evidence that he was or is actually planning to hold a march. The Defendants also contend that the Plaintiffs’ claims related to the previous waiver and advance identification requirements are moot because UDOT no longer asks for these forms from free speech groups. Finally, the Defendants assert that they are entitled to qualified immunity for any damages claims against them.
ANALYSIS
I. Standard of Review
The court grants summary judgment when “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court “view[s] the evidence and make[s] all reasonable inferences in the light most favorable to the nonmoving party.” N. Natural Gas Co. v. Nash Oil & Gas, Inc.,
II. Standing
To maintain their challenge to the liability insurance and indemnification requirements, the Plaintiffs must establish constitutional standing with regard to the provisions challenged. See Allen v. Wright,
The court is not persuaded by the Defendants’ arguments for a number of reasons. Most importantly, the Defendants’ complaint that iMatter Utah is not truly indigent assumes that the group has only brought an as-applied challenge to the insurance and indemnification requirements. An as-applied challenge, in which a plaintiff argues that a law or regulation is unconstitutional as applied to her own speech or expressive conduct, is generally the more common type of suit. But a plaintiff may also bring a facial challenge against a statute that “ereate[s] an unacceptable risk of the suppression of ideas.” Sec’y of Md. v. Joseph H. Munson Co.,
Here, the Plaintiffs advance both types of challenges
Even if iMatter Utah were only pursuing an as-applied challenge based on the lack of an indigency exception, the court finds that the group would still have standing. The Defendants do not argue that iMatter Utah as a voluntary organization possesses enough funds to pay for the insurance policy. Instead, the Defendants suggest that the group, whose national organization provides materials on fund-raising for events, could have collected enough money for the premium if it had made an attempt to do so. This assertion is speculative, and the possibility that the Plaintiffs might have been able to raise the requisite money does not defeat the Plaintiffs’ standing to challenge what they al
The Defendants argue that the court should look past the organization to examine the financial assets of its individual members. Because some of the members of iMatter Utah are employed adults, the Defendants contend that these members of the group could have paid the cost of the insurance premium. The Defendants note that members of an unincorporated association are personally liable for the debts of that association. But the Defendants have not presented the court with any legal authorities holding that the court should therefore calculate the group’s assets by adding up the assets of its individual members.
In any event, the facts demonstrate that UDOT’s insurance and indemnification requirements did ultimately dissuade iMatter Utah from marching in the street. The organization twice marched along the sidewalk instead of the street to communicate its message. There is no evidence to suggest that iMatter Utah could have purchased an insurance policy but chose to forego its street march simply so that it could bolster its standing in this lawsuit. Instead, it appears clear that the insurance and indemnification requirements had a deterrent effect on the group’s planned march. A favorable decision from this court could therefore redress the injury that iMatter Utah suffered from that deterrent effect.
For these reasons, the court finds that iMatter Utah has standing to bring both an as applied and a facial challenge to UDOT’s insurance and indemnification requirements. Because the court holds that iMatter Utah has standing, there is no need to determine whether Mr. Mateus also has injury-in-fact standing. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc.,
III. Mootness of Previous Requirements
The Defendants argue that the court should dismiss as moot any challenges that the Plaintiffs raise concerning the previous waiver and the advance notification requirement. As discussed above, UDOT originally required all participants in a free speech march to sign a Waiver and Release of Damages that absolved the State of Utah from any liability for incidents that might occur during the event. Under the new regulations that UDOT adopted after iMatter Utah filed this lawsuit, permit applicants for a free speech event must sign an indemnification form but are no longer required to complete the Waiver and Release of Damages. And because only one person must sign the indemnification form, there is no longer any need for a group involved in a free speech event to provide advance notification of all the participants.
Based on these developments, the court agrees that the Plaintiffs’ claims related to the previous waiver and advance notification requirements are moot. The Plaintiffs contend that the Defendants’ voluntary cessation of a challenged practice does not deprive a federal court of its power to determine the legality of the practice and that a finding of mootness would leave UDOT “free to return to its old ways.” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc.,
The Defendants’ change in conduct does not, however, moot the Plaintiffs’ claim for compensatory and nominal damages. See Ellis v. Bhd. of Ry., Airline & Steamship Clerks, Freight Handlers, Express & Station Emps.,
IV. Due Process
The Plaintiffs argue that the Defendants have violated their right to due process under the Fifth and Fourteenth Amendments of the United States Constitution because the Defendants refused to issue them a permit or otherwise provide a procedure by which the Plaintiffs could establish their indigency. But the Plaintiffs have not provided any evidence that they had a protected property interest in the permit or the right to a specific type of procedure to determine indigency. These claims are more appropriately addressed in the court’s analysis of whether UDOT’s current permitting scheme complies with the First Amendment. Accordingly, the court grants summary judgment in favor of the Defendants on the Plaintiffs’ due process claims.
Y. Constitutionality of the Insurance and Indemnification Requirements
The Plaintiffs’ First Amendment rights to speak and assemble are part of a “profound national commitment” to the principle that “debate on public issues should be uninhibited, robust, and wide-open.” New York Times Co. v. Sullivan,
Although traditional public fora are protected areas for public debate, the government may nevertheless impose some restrictions on free speech. “Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities.” Cornelius v. NAACP Legal Def. & Educ. Fund, Inc.,
But even time, place, and manner restrictions “can be applied in such a manner as to stifle free expression.” Thomas v. Chicago Park Dist.,
For the reasons stated below, the court finds that UDOT’s liability insurance and indemnification requirements are content-neutral, even though the court notes a number of concerns about whether the regulations are genuinely content-neutral in practice. But the court finds that UDOT cannot enforce either requirement as currently written because both provisions suppress more speech than is permissible under the narrowly tailored test. Completing the required analysis, the court finds that UDOT’s policies leave open ample alternatives for communication and do not delegate overly broad licensing discretion to government officials.
A. Content-Neutrality
The parties do not dispute that UDOT’s insurance and indemnification provisions are content-neutral on their face, since they are applied uniformly to all permit applicants. Nevertheless, these provisions may impose greater burdens on groups with controversial messages because third-party insurers will inevitably evaluate the content of a group’s speech when setting the rate for an insurance policy.
A number of courts have determined that private insurers are likely to apply content-, speaker-, and viewpoint-based criteria when determining whether to offer event liability insurance and, if so, how much to charge. See, e.g., E. Conn. Citizens Action Grp. v. Powers,
Not all courts have followed the reasoning in the cases cited above. In Thomas v. Chicago Park District, the Seventh Circuit concluded that an insurance requirement did not involve content-based criteria because “the amount of insurance required [was] not ... influenced by[ ] the nature of the event.”
The different views on this subject are best expressed in Santa Monica Food Not Bombs v. City of Santa Monica,
I continue to believe that an insurance requirement of the kind imposed by Long Beach is potentially content-based, and therefore invalid.... I fully expressed this view, however, in Food Not Bombs, but did not prevail. The Food Not Bombs majority did not acknowledge the substantial case law supporting my conclusion, and did not consider the likelihood that insurance premiums would ... reflect the content of the permittee’s expression and the likely reaction of bystanders to that content.
Long Beach Area Peace Network v. City of Long Beach,
The principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys. The government’s purpose is the controlling consideration. A regulation that serves purposes unrelated to the content of expression is deemed neutral, even if it has an incidental effect on some speakers or messages but not others.
Ward v. Rock Against Racism,
Because UDOT’s insurance and indemnification requirements are facially eon-tent-neutral and there is no evidence that the State of Utah enacted these regulations as a means to suppress a certain viewpoint, the court finds that the requirements are content-neutral. Nevertheless, the court notes that UDOT’s insurance requirement risks a future legal challenge from a group with a controversial message whose First Amendment activity is totally prohibited because no third-party insurer is willing to provide the group with the required special event insurance coverage. The Plaintiffs here did not encounter this problem, and the court therefore will not speculate as to the outcome of such a lawsuit. Instead, the court turns to the second prong in its analysis of UDOT’s time, place, or manner restrictions.
B. Narrow Tailoring
The second criterion for valid time, place, and manner restrictions requires the government to demonstrate that its regulations are “narrowly tailored to serve a significant governmental interest.” Clark v. Cmty. for Creative Non—Violence,
1. Significant Government Interest
Before addressing whether UDOT’s regulations are narrowly tailored, the court first focuses on the significant government interest that is at stake. The Supreme Court has held that local governments can exercise their substantial interest in regulating competing uses of traditional public fora by imposing permitting requirements for certain uses. See Cox v. New Hampshire,
The State does not dispute this analysis but instead argues that its permitting requirements are necessary to serve two additional government interests. First, the State contends that it has a significant interest in maintaining public order, preventing traffic and sidewalk obstructions, and promoting safety. See Schenck v. Pro-Choice Network of W. New York,
Bearing this discussion in mind, the court considers the insurance and indemnification provisions separately and finds that neither requirement is narrowly tailored.
2. Liability Insurance Requirement
The State of Utah argues that its insurance regulation is narrowly tailored to serve the State’s interest in protecting itself from financial loss because the regula
The Plaintiffs disagree with the State’s interpretation and contend that the State has improperly conflated the government’s need to narrowly tailor its regulations with its need to demonstrate ample alternatives for free speech. According to the Plaintiffs, the State cannot simply rest on its observation that there are still fora available where the Plaintiffs can speak. Instead, the State must also show that the restrictions it has put in place do not burden substantially more speech than is necessary to achieve the State’s significant interest.
The court agrees with the Plaintiffs. Even if ample alternatives for speech exist, the State cannot simply prohibit a group from speaking in a traditional public forum without demonstrating how the State’s restriction on speech is narrowly tailored to serve a significant interest. Here, the State has presented no evidence of any tailoring at all.
a. Examples of the Lack of Narrow Tailoring
While the court does not hold that the State must tailor its insurance requirement in any specific manner, the court notes a number of ways in which the current provision demonstrates that the State has failed to give adequate thought to the scope of its regulations. For instance, the State currently recognizes no distinction between permit applicants who wish to exercise their First Amendment rights and permit applicants for other special events, such as athletic races, filming, or commercial activities. The State thereby requires the same amount of insurance coverage from all permittees, regardless of whether the group is organizing a political protest or a marathon.
Similarly, the State does not allow a free speech group to obtain a waiver from its insurance requirement, even if the group is indigent or only walking on a portion of a state road that poses minimal risk. The portion of State Street that runs from the State Capitol to North Temple Street is only two lanes, for example, but the State regulations require the same amount of insurance coverage to march on this section of State Street as to march on the stretch of State Street that widens to multiple lanes of traffic or, for that matter, on a rural highway. The State never suggested an alternate route to the Plaintiffs that would have avoided the most problematic sections of State Street while still allowing the group to march on the narrower section of State Street leading south from the State Capitol.
While this solution would have obviated some of the complaints made by the Plaintiffs, who contend that they were especially unable to march effectively on the narrow sidewalks between the State Capitol and North Temple Street, the court is not convinced that even the wider sections of State Street pose a serious threat of liability. Indeed, a comparison with Salt Lake City’s permitting requirements casts doubt on the State’s assertion that an insurance requirement is necessary at all for free speech events in the downtown area of the city. Unlike the State, Salt Lake City does not require protestors using the city streets to obtain an insurance policy for a free expression event. While the Defen
If the State is concerned about its financial risk from free speech events, there is no reason that the State could not purchase its own insurance policy.
[P]ublic speech is not a self-centered pursuit; it is speech for “the public.” Any assumption that the speaker is the primary beneficiary when he uses a public forum is incorrect: “This assumption ignores the benefit of the speaker’s activities for the entire society. His activities are part of the process by which a democratic society makes informed decision. He speaks so that society can listen and decide for itself.” An individual who seeks a permit to disseminate a message about matters of public concern in a traditional public forum is thus exerting free speech rights that not only are explicitly promised by the Constitution but also are of value to the community as a whole. Where such communal benefits exist, the government’s countervailing interest in recouping costs solely from the individual is weaker.
Sullivan v. City of Augusta,
b. Conflict with the Supreme Court’s Claiborne Decision
The Plaintiffs assert that an additional problem with UDOT’s current insurance requirement is that it conflicts with the Supreme Court’s decision in NAACP v. Claiborne Hardware Co.,
The Plaintiffs argue that UDOT’s insurance provision conflicts with the Claiborne decision because it requires the Plaintiffs to buy a policy without specifying what types of incidents the policy must cover. The regulation simply mandates a minimum $1,000,000 coverage per occurrence and $2,000,000 in aggregate. This open language arguably requires the Plaintiffs to insure not only against occurrences that can be attributed to the actions of a participant in the march, but also against incidents for which the Plaintiffs cannot be held liable, such as the reactions of third-party bystanders or the actions of police officers or other employees of the State.
The Defendants maintain that an insurance premium is different from the liability discussed in Claiborne since it “is simply a liquidated figure to cover the government’s potential risk.” Courtemanche v. Gen. Servs. Admin.,
c. Overview of Cases from Other Jurisdictions
While the Tenth Circuit has not yet addressed the issue of mandatory insurance requirements for free speech activities, the court has carefully examined a number of eases from other district and circuit courts and finds that the majority of these cases support the court’s decision. The court will summarize this substantial body of law by first reviewing decisions that have considered the constitutionality of regulations imposing prohibitive costs generally on permit applicants. The court will then examine decisions that have addressed insurance requirements specifically. Finally, the court will turn to the cases that have reviewed mandatory insurance requirements that are most analogous to the insurance provision at issue here.
i. Regulations Imposing Prohibitive Costs Generally
A number of courts have found that regulations imposing prohibitive financial costs on the exercise of First Amendment rights are unconstitutional. For instance, the Eleventh Circuit struck down an ordinance that required protesters to prepay for the costs of police protection because “[t]he granting of a license permit on the basis of the ability of persons ... to pay an unfixed fee for police protection, without providing for an alternative means of exercising First Amendment rights, is unconstitutional.” Cent. Fla. Nuclear Freeze Campaign v. Walsh,
The Defendants argue that these cases are factually distinguishable because they involve groups who were unable to exercise their First Amendment rights if they did not pay the permit fee. The Defendants point out that the Plaintiffs here are not totally prohibited from speaking because they are free to march on other Salt Lake City streets or on the sidewalk. The Defendants rely on two cases in which the First and Sixth Circuits upheld regulations requiring groups who wished to march in the city streets to pay a permit fee for the costs of traffic control, even though these regulations did not contain an exemption for indigent people. See Stonewall Union v. City of Columbus,
Moreover, the regulations at issue in Stonewall and Sullivan did not involve insurance provisions. Instead, the required permit fees covered the costs of traffic control and other costs directly associated with the administration of the parade. In Stonewall, the Sixth Circuit compared these fees to the parade fees that the Supreme Court upheld in Cox v. Neiv Hampshire,
The Supreme Court considered a municipality’s right to impose a license fee for parade permits and found that as long as the fee was designed to meet the expenses incident to the administration of the law and the cost of maintaining public order for the parade, such a charge did not impermissibly burden First Amendment rights.
Stonewall,
But even if the cost of obtaining an insurance policy can be analogized to an administrative fee, the premium cost is distinct from the fees at issue in Cox. Unlike the costs of traffic control or of maintaining a police presence, the insurance cost is related only to the risk of liability and not to public safety. As discussed above, the government’s significant interest is therefore limited to its financial risk and is' comparatively weaker. As a result, the court finds that the rulings in Stonewall and Sullivan are not as persua
ii. Regulations Containing Insurance Provisions
Where courts have considered insurance provisions specifically, they have tended to strike them down. For instance, the United States District Court for the Eastern District of Pennsylvania held an insurance requirement unconstitutional “[bjecause defendants can satisfy the interests of the Commission in the circumstances presented here with more narrow and less restrictive measures such as prudent site selection and policing.” Wilson v. Castle,
While the Ninth Circuit has upheld insurance requirements, it has done so where these requirements were not mandatory in the permitting scheme. In Santa Monica Food Not Bombs v. City of Santa Monica, the permitting regulation allowed an applicant to waive the insurance requirement provided that the applicant signed an indemnification agreement and did not have a history of personal injury or property damage claims awarded against the applicant arising out of previous free speech events.
Political demonstration organizers can even avoid both the hold harmless [indemnification] provision and the insurance provision if they cooperate with the City Manager to design the event “to respond to specific risks, hazards and dangers to the public health and safety identified by the City Manager or his/ her designee as being reasonably foreseeable consequences of the permitted event.” Thus most demonstration organizers will not have to provide insurance[.]
Id. at 1057 (citation omitted). Similarly, the regulation at issue in Long Beach Area Peace Network v. City of Long Beach provided an exception to its insurance requirement for events involving “expressive activity.”
iii. Regulations Containing Mandatory Insurance Provisions
The majority of courts that have considered mandatory insurance requirements most similar to the regulation at issue here have found these requirements unconstitutional. In Eastern Connecticut Citizens Action Group v. Powers, the Second Circuit invalidated an insurance requirement that the Connecticut Department of Transportation imposed on a group of marchers who wanted to use an abandoned rail bed for a march about environmental issues.
The United States District Court for the Southern District of New York applied intermediate scrutiny to a mandatory insurance requirement and found that the regulation was not a narrowly tailored means of furthering the government’s interest in limiting its financial liability. Coe v. Town of Blooming Grove,
The Second Circuit upheld the district court’s decision striking down the Town regulation, but did so on alternative grounds.
While the state has a legitimate interest in protecting itself from liability for injuries associated with the use of its property, ... [ajbsent a showing that those carefully-crafted remedies [marchers’ efforts to minimize the risk of injury or damage, waivers of claims against the state, and existing civil and criminal sanctions for trespassing, vandalism, etc.] are unavailing in this instance, the state may not insist upon broader restrictions which substantially infringe constitutional rights.
Id. at 404-05 (citing E. Conn. Citizens,
Importantly, the Van Arnam court reached its decision despite finding that the plaintiff was not indigent. Id. at 406. Even though the plaintiff may have been able to afford insurance for the planned event, the court found that the indemnification provision created a financial burden that “could (and in fact did) completely deter her from speaking on federal property.” Id. Here, UDOT’s insurance and indemnification requirements also deterred speakers from marching on state property, regardless of whether the Plaintiffs may have been able to afford an insurance premium. Also similar to the facts here, the Van Amam court found that the indemnification provision did not foreclose adequate alternative channels of communication. The plaintiff in Van Am am could have held, and indeed did hold, her rally on the city-owned City Hall Plaza, which was adjacent to and within site of the John F. Kennedy Building. Nevertheless, the court concluded that the indemnification requirement was not narrowly tailored to serve a significant government for the reasons discussed above.
In Sullivan v. City of Augusta, the First Circuit disagreed with the district court’s holding in Van Arnam:
The case perhaps most helpful to the plaintiffs is Van Arnam v. GSA where the district court, relying on several of the above cases, held unconstitutional an indemnification/hold harmless requirement on the grounds that the absence of an indigency waiver suppressed more speech than was necessary and thus was not narrowly tailored. The analysis did not thus turn on the availability of alternative means of expression (which the district court had found were available). To the extent that [Sullivan and Van Amam] are comparable, we disagree with the narrow tailoring conclusion in Van Amam.
In contrast to the decisions cited above, courts that have upheld mandatory insurance requirements have generally done so in cases with facts that are distinguishable from the facts at issue here, or in cases with a different procedural posture. See Gerritsen v. City of Los Angeles,
The case that most mirrors the facts of this lawsuit is Thomas v. Chicago Park District, in which the Seventh Circuit upheld a regulation that required organizers of events in city parks to obtain liability insurance for events of more than fifty people.
Petitioners do not argue that the Park District’s ordinance fails to satisfy other requirements of our time, place, and manner jurisprudence, under which the permit scheme “must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.”
Given the number of cases that have struck down insurance requirements that are similar to UDOT’s provision, and the lack of any contrary authority in a case that is directly analogous to the facts and arguments presented here, the court finds
3. Indemnification Requirement
The court addresses UDOT’s indemnification requirement separately because it covers a slightly different scope of liability than the insurance requirement. Notably, the State of Utah has amended its regulations so that the indemnification provision is no longer as broad as it once was. Nevertheless, the court finds that the current indemnification provision is still not narrowly tailored to serve the State’s significant government interest.
After the Plaintiffs filed their lawsuit, the State changed its regulations so that free speech participants were no longer required to sign a waiver that released the State from all liability for any claims that resulted from participation in the march. The State now requires free speech participants to sign an indemnification form, which requires a permittee to “indemnify, defend, and hold ... harmless” the State of Utah and its relevant agencies from certain types of claims. The State argues that the indemnification form is constitutionally adequate because it only requires indemnity against (a) acts by the Plaintiffs or persons under the Plaintiffs’ control “insofar as permitted by law”; and (b) actions and claims that are brought by reason of the Plaintiffs’ non-observance or non-performance of any of the terms of the permit or other laws and regulations. (See Indemnification Form.)
The current indemnification form avoids the problems of the hold harmless provision that the Ninth Circuit struck down in Long Beach Area Peace Network v. City of Long Beach,
The Ninth Circuit upheld a similar requirement in Kaahumanu v. Hawaii:
In contrast to Long Beach, the indemnification/hold-harmless clause in this case does not require a permittee to hold the state harmless for all consequences of the event, including those caused by the state’s own actions. The clause here is much narrower, requiring a permittee to indemnify and hold Hawaii harmless only for “any act or omission on the part of [the] Applicant,” “any failure on the part of [the] Applicant ” to maintain the premises, and all “claims ... made by reason of Applicant’s ” failure to follow the permit Terms and Conditions.
The court finds that the indemnification requirement supports the State of Utah’s government interest only minimally, and that it does so by placing a significant burden on speech. Without the indemnification agreement, there is little doubt that the State could hold an organization directly hable for any property damage or injuries caused by members of the organization during a march. Consequently, the major function of the indemnification form is simply to turn traditional tort liability into contractual liability under the agreement. While the State may gain some financial advantages from this approach, such as the ease of recovering attorneys’ fees and other litigation costs, the State has failed to demonstrate what these advantages are or why they are needed. For instance, the State has presented no evidence that litigation resulting from free speech events has placed a financial strain on the State’s resources. Instead, the State merely asserts that the indemnification requirement is necessary for the State’s protection, thereby assuming that the traditional legal remedies of civil and criminal liability for property damage and personal injury are for some reason insufficient in the context of public demonstrations and marches. The court finds no evidence that supports this assumption.
While the State’s financial interest in the indemnification requirement is somewhat speculative, the burden that the indemnification provision imposes on individuals wishing to exercise their First Amendment rights is real. By signing the agreement, an organization exposes itself to an unknown amount of liability. The organization is required to defend the State against all third-party claims alleging some action by a member of the organization, even if those claims are frivolous. Third parties who disagree with the content of the organization’s speech could use this tactic to punish an organization after the event. Judge Berzon summarized this point of view in her dissent in Santa Monica Food Not Bombs v. City of Santa Monica:
While the indemnification provision and the actual indemnification agreement do not make permittees potentially liable for actions of hecklers who attend the event, they do not protect permittees from bearing liability for lawsuits brought by a different sort of heckler who, after the fact, seeks to make permittees liable for damages for actions which allegedly occurred during the event, whether or not the actions actually occurred.
While the Defendants point to number of cases to support their argument that the indemnification requirement is narrowly tailored, the court finds that all of these cases are distinguishable. Although the Ninth Circuit upheld a similar indemnification clause over Judge Berzon’s vigorous dissent in Santa Monica Food Not Bombs, the court likely would have reached a dif
And although the Defendants argue that their indemnification provision is similar to the clause that the Ninth Circuit upheld in Kaahumanu, the Kaahumanu case did not involve political speech. Instead, the regulations at issue in Kaahumanu concerned permits for weddings and other “commercial activity” on the public beaches of Hawaii.
Finally, the Defendants rely on Nationalist Movement v. City of York, in which the Third Circuit upheld a hold-harmless requirement for use of the city’s public parks that applied only to damages for which the speaker could legally be held liable.
Given the lack of factual similarity, the court finds that the cases on which the Defendants rely are inconclusive. But these cases are not the only source of guidance on this issue. Permit applicants who are required to sign an indemnification clause must either purchase insurance to protect themselves or self-insure by default. As a result, the reasoning in the numerous eases considering insurance provisions is equally applicable to the court’s analysis of whether the indemnification clause is narrowly tailored. For the reasons discussed above, the majority of these decisions support the court’s ruling that UDOT’s indemnification requirement is not narrowly tailored to achieve a significant government interest.
The State has not provided any evidence that the indemnification agreement protects the State from financial loss due to claims for property damage or personal
C. Alternatives for Communication
The parties dispute whether UDOT’s current permitting scheme leaves open ample alternatives for communication. The Defendants argue that the Plaintiffs have access to two readily available alternatives even if they are unable to march on State Street. First, the Plaintiffs are not barred from marching on the sidewalks lining State Street. Second, the Plaintiffs are free to march on adjacent streets without obtaining a permit from UDOT.
The Plaintiffs respond that street marches carry special significance and that State Street specifically provides a unique focal point for their march, in which they wish to promote the message that state and local legislatures should take action on climate change. The Plaintiffs submit the views of their expert, Dr. Andrew Utter-back, who claims that sidewalks do not provide a backdrop that resonates with the historical power of street marches. The Defendants contest the relevance of this testimony and have moved to exclude Dr. Utterback’s testimony.
The court need not determine whether Dr. Utterback possesses the necessary qualifications to serve as an expert in this matter because his opinion is amply represented in other cases. In Sullivan v. City of Augusta, for instance, Judge Lipez described a number of ways in which sidewalk marches were likely to be less effective than street marches:
If a march is confined to the sidewalks, the perception that space is limited, and that fewer marchers can therefore be accommodated, will reduce the number of participants.... Indeed, such concerns are likely to suppress the number of spectators as well, with shoppers and others altering their routes to avoid the sidewalk congestion. The resulting reduction in the number of marchers, as well as spectators, dilutes the message that is delivered[.]
The Tenth Circuit has not decided whether the availability of sidewalks provides an adequate alternative to street marches. But the sidewalks were not the only available alternative for the Plaintiffs here; they were also allowed to march on adjacent streets. Given the proximity of these adjacent streets to the Plaintiffs’ desired parade route, the court finds that UDOT’s insurance and indemnification requirements did not foreclose adequate alternative channels of communication for
Nevertheless, the court agrees with the Plaintiffs that State Street, which runs past the Utah State Capitol, the United States Federal Building, the Utah State Courthouse, and the Salt Lake City and County Building, possesses deep historical and political significance in Utah. Even if nearby streets provide the Plaintiffs ample alternatives for communicating their message, it is unlikely that a street march on an adjacent roadway would be as symbolic or as effective as a march down State Street. The Defendants cannot cut off access to this important public forum simply because adequate alternatives for communication exist. Instead, the Defendants must show that the restrictions they have imposed on State Street are narrowly tailored to serve a significant government interest. Because they have failed to do so, even the presence of ample alternatives for communication cannot save the offending provisions.
D. Administrative Discretion
The parties do not dispute that, as currently written, the UDOT regulations are applied uniformly to all permit applicants. These regulations therefore do not delegate overly broad licensing discretion to any government officials. The Defendants argue that a perverse result of adding an indigency exception to the State’s permitting scheme would be that it would grant the permitting officials more discretion in their decisions. If the criteria for determining whether a group was indigent were too vague, the new regulations would no longer be content-neutral because the permitting officials could make their indigency decision based not on a group’s financial circumstances, but on the content of the group’s message.
While UDOT would of course need to be wary of this possibility if the State chose to create an indigency exception, the court does not believe that the challenge is insurmountable. As Judge Lipez noted in his dissent in Sullivan, a number of cities have adopted various approaches for determining eligibility for indigency exemptions without delegating too much discretion to the permitting officials. See Sullivan,
VI. Damages
The Plaintiffs request that the court award them at least nominal damages under 42 U.S.C. § 1983 for the violation of their First Amendment rights. The Plaintiffs seek these damages against the named UDOT officials in their individual capacity. The individual Defendants argue that, even if they violated the Plaintiffs’ constitutional rights, they are nevertheless protected from the Plaintiffs’ claims under Section 1983 by the doctrine of qualified immunity.
The doctrine of qualified immunity protects government officials “from liability for civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Harlow v. Fitzgerald,
“Ordinarily, in order for the law to be clearly established, there must be a Supreme Court or Tenth Circuit decision on point, or the clearly established weight of authority from other courts must have found the law to be as the plaintiff maintains.” Weigel v. Broad,
Here, there is no clear Tenth Circuit precedent on this issue. And although the court finds that the weight of existing precedent from other jurisdictions supports the court’s finding that the Plaintiffs’ First Amendment rights were violated, the contours of the law are not sufficiently clear that the Defendants should have known that the UDOT regulations were unconstitutional. Indeed, there is no evidence that the Defendants acted in bad faith or with any belief that any of their permitting requirements were constitutionally deficient. The unsettled state of the law in this area demonstrates that the Defendants’ assumptions, though incorrect, were not unreasonable. As a result, the court finds that the Defendants are entitled to qualified immunity and awards no damages to the Plaintiffs under 42 U.S.C. § 1983.
The Plaintiffs may nevertheless seek to recover their reasonable attorneys’ fees under 42 U.S.C. § 1988. This statute provides that “the prevailing party” in certain civil rights actions, including suits brought under Section 1983, may recover “a reasonable attorney’s fee.” The Supreme Court has held that a plaintiff is the prevailing party if she is successful on her claims for injunctive or declaratory relief, even if the court declines to award any damages. See Lefemine v. Wideman, — U.S.—,
CONCLUSION
For the reasons stated above, the court finds that UDOT’s regulations requiring a free speech applicant to obtain liability insurance and sign an indemnification form are not narrowly tailored to serve a significant governmental interest. As a result, the court holds that these regulations violate the First Amendment. The court enjoins the Defendants from enforcing these requirements as currently written against applicants who request a permit from the State for a free speech event.
The Plaintiffs’ claims based on previous versions of UDOT’s regulations, including the waiver and advanced identification requirements that the State no longer enforces against applicants for free speech activities, are dismissed as moot. The court also dismisses the Plaintiffs’ claims for violation of their due process rights under the Fifth and Fourteenth Amendments.
In accordance with the court’s ruling above, the Plaintiffs’ Motions for Partial Summary Judgment (Dkt. 51 & 110) and the Defendants’ Motion for Summary Judgment (Dkt. 81) are all GRANTED IN PART AND DENIED IN PART. Mr. Mateus’s Motion to Strike Affirmative Defenses (Dkt. 46) and the Defendants’ Motion to Exclude the Testimony of Dr. Utterback (Dkt. 78) are DENIED AS MOOT.
The court orders the Clerk of the Court to close the case.
Notes
. A plaintiff may even bring a facial challenge in some circumstances on behalf of other parties that are not before the court. The Supreme Court has recognized that challenges in the First Amendment are an "exception from general standing rules" where the challenger asserts that the restriction is "subject to facial review and invalidation” because it “has the potential to chill the expressive activity of others not before the court.” Forsyth Cnty. v. Nationalist Movement,
. The Supreme Court affirmed the Seventh Circuit’s decision. Thomas v. Chicago Park Dist.,
. While their view has not yet been adopted in judicial decisions, the court notes that several scholars have leveled criticism at this approach to content-neutral regulations that have disparate content-based effects. See, e.g., Kathleen M. Sullivan, Free Speech Wars, 48 S.M.U. L.Rev. 203, 208-09 (1994) (comparing the "conventional view” that it is “not the fault of the state” that such regulations may result in unequal speaking opportunities to the quotation by Anatole France that "[t]he law, in its majestic' equality, forbids the rich as well as the poor to sleep under bridges.” (quoting Anatole France, Le Lys Rouge 91 (1894))).
. Insurance coverage provided by the State would also reduce the risk discussed above that a provider could charge a different premium based on the content of a group's speech.