Lawyers’ Mall solicitation ban’s fate could depend on ‘forum’ ruling

A free-speech challenge to a Maryland state agency’s ban on financial solicitations on Lawyers’ Mall could come down to whether the site – at the foot of the State House and the feet of Thurgood Marshall’s statue – is an open forum for political protest or a simply a common area subject to legitimate government control.

In a federal court challenge, the ACLU of Maryland claims the Department of General Services’ ban violates the Constitution’s First Amendment because financial solicitations are protected speech that communicates information, presents ideas and advocates causes.

Lawyers’ Mall, being so close to where legislation is debated and Marshall’s shadow, is clearly an open public forum for political expression and solicitation, the American Civil Liberties Union chapter added in its filings in U.S. District Court in Baltimore.

But in papers filed last week on DGS’s behalf, Maryland Attorney General Brian E. Frosh called the mall a “limited public forum” where the government may restrict soliciting so long as the restriction applies to everyone regardless of the views being espoused.

Urging the court to dismiss the ACLU’s lawsuit, Frosh said the public’s access to the area has historically been restricted by the government to ensure safety and access for state employees.

“For one, it is located in the middle of a complex of state buildings – including the governor’s home and the State House – posing unique security concerns,” Frosh wrote, with Assistant Attorneys General John R. Grimm and Robert A. McFarland.

“The department has traditionally exercised some oversight of activities in Lawyers’ Mall, by issuing permits for its use,” Frosh added. “And while it is used for public demonstrations, it is also used by state employees as a path from one official building to another. A government official facing these facts could reasonably conclude that Lawyers’ Mall is an access way between government buildings, which the state has opened for the limited purpose of non-commercial demonstrations only.”

Countering the dismissal motion, the ACLU’s Maryland chapter stated “the law leaves no doubt” the mall is a traditional public forum open to unrestricted speech, including that which seeks financial contributions.

The mall “has been used by activists for decades to advance various causes,” wrote the group’s attorney Scott H. Christensen, of Hughes Hubbard & Reed LLP in Washington. “Politicians from both major political parties, and their supporters, have used Lawyers’ Mall as a staging ground for protests, rallies, marches, and similar events.”

Christensen added the mall’s proximity to lawmakers and their aides heading to and from the State House makes it “an ideal location for the public to engage in discourse with, and petition, their elected officials.”

Christensen was joined in the filing by his law firm colleagues John F. Wood and Tabitha Bartholomew as well as Deborah Jeon, the ACLU of Maryland’s legal director.

Prior approval

The controversial regulation – found at Code of Maryland Regulations 04.05.01.07 — 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, all of which are required to get DGS’s prior approval.

U.S. District Judge Marvin J. Garbis, who is presiding over the case, has not said when he will rule on the dismissal motion. 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.

The ACLU of Maryland filed the lawsuit in March after DGS declined the group’s request the ban be lifted.

“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 complaint states.

In response, DGS called its 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 stated.

The ACLU alleges DGS’s “unconstitutional” prohibition 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.