- The Washington Times - Wednesday, January 16, 2002

Governments that issue permits for public gatherings need not set up constitutional safeguards like the ones imposed on a 1960s licensing scheme to censor movies in Maryland, the Supreme Court ruled yesterday.

The court voted 9-0 to back the Chicago Park District's system over a marijuana advocacy group called Windy City Hemp Development Board that said the park district's law unconstitutionally allowed discretion in rejecting permits.

"On balance, we think the permissive nature of the ordinance furthers, rather than constricts, free speech," said the ruling written by Justice Antonin Scalia.

"On [the groups] theory, every obscenity law, or every law placing limits upon political expenditures, contains a constitutional flaw, since it merely permits, but does not require, prosecution," the court said in one of two unanimous decisions yesterday.

Justice Scalia noted that some applications for protests to laws against selling marijuana were granted while others were rejected.

The court found a "strikingly similar system of prior restraint" between Chicago's current system for screening permit applications to use city parks for assemblies involving more than 50 people and the Maryland licensing plan outlawed in 1965.

Justices rejected arguments that the 1965 Freedman v. Maryland ruling applied to other public permits, saying the Chicago Park District was "content-neutral" because it did not base decisions on what would be said at meetings. Chicago's law regulates time, place and manner of a gathering, forbids dangerous or illegal practices and requires insurance against damage.

If a permit is refused, the Park District must explain why in writing and suggest ways to remedy problems. If a competing application seeks the same time and place, the district must suggest alternates.

"Granting waivers to favored speakers or, more precisely, denying them to disfavored speakers would of course be unconstitutional, but we think that this abuse must be dealt with if and when a pattern of unlawful favoritism appears," the court said.

In its second unanimous ruling yesterday, the high court gave police broader discretion to stop cars whose occupants were suspected of crimes by officers who did not have "probable cause" to do so.

The court said the Fourth Amendment "is satisfied" by a lesser standard that the opinion written by Chief Justice William H. Rehnquist called "reasonable suspicion to believe that criminal activity may be afoot."

The 9-0 opinion upheld Border Patrol Agent Clinton Stoddard's 1998 arrest of Ralph Arvizu at a checkpoint 30 miles north of Douglas, Ariz. Agent Stoddard offered several reasons for stopping Mr. Arvizu's family minivan, in which he found 100 pounds of marijuana.

While each reason was subject to legal attack, the chief justice said the "totality of the circumstances" dictated whether an officer's instinct was justified.

"This process allows officers to draw on their own experience and specialized training," Chief Justice Rehnquist said.

The chief justice, a one-time Arizona resident who demonstrated knowledge of the area during legal arguments, said discovery of a nervous driver on an isolated dirt road often used by drug smugglers at a time when Border Patrol agents were changing shift was enough to justify the stop.

The 9th U.S. Circuit Court of Appeals had ruled those actions fell short of "probable cause" to justify a stop and search. The high court said it reexamined that decision because of its importance in enforcing federal drug and immigration laws.

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