I think Alan underestimates how unpopular land uses shoehorned into
incompatible districts can be (religious or not). You don't need a minority
religion to trigger negative reactions to houses of worship. This is
particularly true in residential neighborhoods where the reaction and potential
liability for the city rests on the incompatibility of the use and not the
religious identity of the applicant. Look at the Hancock Park case where the
city had to pay attorneys fees for abandoning its l and use laws in favor of a
synagogue and against the neighbors.
Marci
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "Brownstein, Alan" <aebrownst...@ucdavis.edu>
Sender: religionlaw-boun...@lists.ucla.edu
Date: Fri, 17 Sep 2010 16:57:56
To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu>
Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: RE: Billing controversial speakers for security costs incurred by
city: 1st Am violation?
There is a more commonplace example of a policy that makes houses of worship of
unpopular faiths pay additional fees because of the reaction of neighbors to
their activities. Many cities require all landowners, including houses of
worship, to sign indemnity agreements as a condition to the government
considering changes to their conditional use permit or other land use
regulations. The agreement requires the house of worship to indemnify the city
for the cost of reviewing the house of worship's proposal (including city staff
time at hearings), any costs the city may incur in defending itself against a
lawsuit if the permit is granted, and any damages the city may pay if its
decision is held to be unlawful. Obviously, the more local opposition that
exists to the house of worship's proposals (at least some of which may be
predicated on opposition to the faith of the congregation seeking the permit),
the greater will be the costs to the city in evaluating the proposal and the g!
reater the costs to the house of worship.
Are these indemnification agreements constitutional under Forsyth County v.
Nationalist Movement when they are applied to land uses engaging in First
Amendment protected activity?
Alan Brownstein
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Friday, September 17, 2010 4:10 PM
To: Law & Religion issues for Law Academics
Subject: RE: Billing controversial speakers for security costs incurred by
city: 1st Am violation?
I would think that under Forsyth County v. Nationalist Movement (1992),
security fees that are based partly on the risk of violent reaction based on
the content of the speech are unconstitutional. That case held this even as to
parades on public streets, and even when the fee was capped at $1,000 per day;
here the bill they're talking about would be $200,000. I can't see why there'd
be a less speech-protective result as to conduct on private property.
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark
> Sent: Friday, September 17, 2010 3:29 PM
> To: Law & Religion issues for Law Academics
> Subject: Billing controversial speakers for security costs incurred by
> city: 1st Am violation?
>
> It is reported that the city of Gainesville, Florida is planning to
> bill Terry Jones for the costs of providing security for his church
> and the surrounding neighborhoods in light of his announced plan to
> burn a Quran. See
> http://www.cnn.com/2010/US/09/17/florida.quran.pastor/index.html?hpt=T
> 2.
>
>
> I have not followed the cases dealing with imposition of security
> costs on controversial speakers. It seems Jones typically has spoken
> on his church's property, and has not held the kind of rally or parade
> with respect to which it might be more reasonable to bill the speaker
> for security costs (and trash pickup, etc.). But, as I said, I haven't
> followed the relevant cases. Perhaps someone on the list would have
> some insight here. Of course, one way to shut up controversial
> speakers would be to make their speech very expensive in this way.
>
> Mark Scarberry
> Pepperdine
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