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ACLU sues over Lawyers’ Mall solicitation ban

Protestors gather on Lawyers’ Mall last week during the opening of the General Assembly session. The ACLU of Maryland says the spot is a ‘quintessential public forum’ and can be used for fundraising despite a state regulation banning such events. (Maximilian Franz/The Daily Record)

Protestors gather on Lawyers’ Mall. (Maximilian Franz/The Daily Record)

ANNAPOLIS – The ACLU of Maryland filed suit Thursday against the Department of General Services, saying DGS’s ban on financial solicitations on Lawyers’ Mall – a popular site for political protest at the foot of the State House – violates the constitutional right to freedom of speech.

The ACLU chapter also seeks a preliminary injunction ordering DGS to lift the ban prior to a final court decision, noting the General Assembly session – a peak time for protests and solicitations – ends in one month. The group’s filing in U.S. District Court in Baltimore follows its January threat of litigation if DGS declined to lift the solicitation ban.

DGS has refused, calling the prohibition a “common sense and sensible regulation (that) prevents political organizations from abusing state/public property” and which protects “the safety and welfare of the public.” Political organizations are “more than able to host demonstrations but cannot raise money,” DGS has stated.

The department added in a statement Friday afternoon is has not received actual notice of the lawsuit but continues to defend the prohibition.

“Dating back to the Schaefer administration, it has been against state regulation for political fundraising events to occur in Lawyers’ Mall,” DGS stated, referring to the governorship of William Donald Schaefer from 1987 to 1995. “The department remains committed to preserving and protecting the public peace, health, and safety of our citizens.”

But the ACLU, in its court filing, countered the U.S. Supreme Court stated in its 1980 Schaumburg v. Citizens for a Better Environment decision financial solicitations are speech protected by the First Amendment because they communicate information, present ideas and advocate causes. The group added that Lawyers’ Mall, so close to where legislation is debated and in the shadow of civil rights icon Thurgood Marshall’s statue, is clearly a public forum for the expression of information, ideas and causes.

The controversial regulation – found at Code of Maryland Regulations — prohibits solicitations excepts those made by national and local organizations for savings bonds, health, welfare and charity; labor unions seeking membership dues,; and the U.S. armed forces and National Guard. These specific solicitors are required to get DGS’s prior approval.

“The regulation at issue here is a content-based restriction on speech: It restricts solicitation on certain public grounds unless that solicitation meets one of (the) enumerated exceptions, including solicitations for charity or by labor unions,” the ACLU’s court filing states.

“Defendants (including DGS) shoulder the burden to establish that the regulation – which prohibits various forms of solicitation based on the subject matter of the solicitation, including political solicitation at Lawyers’ Mall – both furthers a compelling governmental interest and is narrowly tailored to achieve that goal,” the filing adds. “The regulation itself does not identify its purpose, nor does any legislative or regulatory history exist that explains the regulation’s ban on solicitation.”

The ACLU also alleges DGS’s “unconstitutional” prohibition recently forced individuals to forgo a fundraiser for Tina Frost, a Crofton resident grievously wounded during an Oct. 1 mass shooting at a Las Vegas concert.

In addition, the regulation led organizers of a “March for Racial Justice” last October to forgo an effort to raise money on the mall for another civil rights event to bring attention to the plight of minorities in Maryland, according to the lawsuit.

“Protests and rallies happen almost daily on Lawyers’ Mall in Annapolis, but the organizers and hosts of those demonstrations are currently blocked from asking participants to financially support a political cause or even make a donation to help cover costs of holding the event,” said Deborah Jeon, ACLU of Maryland’s legal director, in a statement announcing the lawsuit. “It is an egregious affront to the Constitution for the state to block Marylanders from exercising their First Amendment rights on the grounds of Maryland’s quintessential site for vigils, rallies and demonstrations, right there in Thurgood Marshall’s shadow.”

The case is March on Maryland Inc. et al. v. Ellington E. Churchill Jr., secretary of the Department of General Services et al., No. 1:18-cv-00701-MJG.

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