Whether Mississippi can limit impromptu citizen protests around state-owned buildings rests with a federal judge overseeing a lawsuit challenging how a state-run police and court in Jackson operates.
Senate Bill 2343, passed in the 2023 legislative session, became law in July. It calls for prior written approval for public demonstrations on a street or sidewalk at the Capitol or state-owned buildings or one where a state agency operates by the public safety commissioner or the chief of the Capitol Police, which falls under his agency.
At an Aug. 8 meeting, Public Safety Commissioner Sean Tindell said the agency is considering the First Amendment as it drafts regulations, and it wants to balance a right to speech with public safety. An agency spokesperson did not respond to a request for comment.
Critics of SB 2343 say the law would limit the right to protest that is founded in the First Amendment, and it could have a chilling effect on speech because of potential consequences, such as arrest, conviction in the soon-to be operating Capitol Complex Improvement District court and possible time served for a misdemeanor at the Central Mississippi Correctional Facility rather than a county jail.
“It’s the law itself where the problem lies,” said Frank Rosenblatt, a Mississippi College School of Law associate professor who teaches classes about constitutional law and the First Amendment.
In First Amendment law, speech regulations in a traditional public forum, such as sidewalks and public streets outside state-owned buildings, typically need to meet several requirements: They are content neutral, are narrowly tailored to serve a significant government interest and leave open alternatives for speech.
Rosenblatt doesn’t believe the court will be satisfied with the Department of Public Safety’s “blanket explanation” of public safety as a reason to restrict speech.
U.S. District Court Judge Henry Wingate granted a preliminary injunction of SB 2343 last year in an ongoing lawsuit that consolidated a challenge of the law with a suit challenging House Bill 1020, which established the CCID court and directed state officials to make judicial and prosecutor appointments to the court.
Because a preliminary injunction of SB 2343 is still in effect, DPS currently cannot enforce any regulations it adopts stemming from the law.
Under the Mississippi Administrative Procedures Act, a public meeting about any state agency’s proposed regulations can be held if at least 10 members of the public request one in writing.
This threshold was met for the regulations DPS is drafting for SB 2343, leading to the Aug. 8 meeting at the Capitol.
Rosenblatt and one of his law students, Ren Allen, spoke during the public comment section and said they were seeking clarity about how the agency is writing the regulations, including how it would consider the First Amendment, how it defines public safety and wellbeing.
“I don’t have a lot of faith that this proceeding changed anyone’s mind at DPS about moving forward with the regulation implementation,” said Allen, who is in her final year of law school. “I hope I’m wrong and I hope that they heard the arguments and heard from their citizens.”
Draft regulations posted on the state’s administrative bulletin refer to a number of types of demonstrations including parades, athletics, block parties, festivals and other special events where there is expected to be 25 or more people who could be reasonably expected to block entrance and exit from any state building.
Requests for approval would need to be submitted at least 30 days before the event date, according to the draft regulations.
Approval or denial of a request would take place no longer than 10 days after receipt for events with a pre-established route. Action on special events would be taken no longer than four days after a request for approval. Written notification would be provided of the request’s outcome, including reasons for conditional approval or denial, according to the draft regulations.
In recent years, a number of demonstrations have taken place at the Capitol and other state buildings, including demonstrations about Jackson’s water system issues that passed by the Governor’s Mansion, protests of the U.S. Supreme Court overturn of Roe v. Wade and gatherings by residents and public officials to speak out against legislation.
A proposed 30-day minimum of notice can limit people’s ability to protest about current events, Rosenblatt said.
“All of those things would be off limits for people to speak about,” he said.
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