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HomeMy WebLinkAbout3. Roadside Memorials20 N. Wacker Drive, Ste 1660 Chicago, Illinois 60606 -2903 T 312 934 6400 F 312 934 6444 DD 312 934 6463 gowagner@ktjlaw.com MEMORANDUM VIA EMAIL CONFIDENTIAL ATTORNEY- CLIENT COMMUNICATION TO: Michael E. Janonis Mount Prospect Village Manager FROM: George A. Wagner Assistant Village Attorney DATE: March 22, 2012 RE: Roadside Memorials 15010 S. Ravinia Avenue, Ste 10 Orland Park, Illinois 60462 -5353 T 703 349 3333 F 703 349 1506 www.ktjlaw.com You have asked us to research and provide a memorandum on several issues involving the placement of roadside memorials on Village property. This memorandum will provide a general overview of First Amendment Law, and then address the following questions related to roadside memorials: (1) can the location of roadside memorials be limited to a certain distance from the memorialized event ?; (2) can roadside memorials only be erected at the request of an immediate family member ?; (3) can the Village regulate the length of time that a roadside memorial can be on display ?; and (4) how does Illinois regulate roadside memorials? First Amendment Overview The placement of roadside memorials constitutes a form of speech and therefore implicates the protections of the First Amendment. First Amendment analysis differs depending on whether the situs of the speech is considered a public or nonpublic forum. When a nonpublic forum is involved, i.e. where the public property is not by tradition or designation a forum for public communication, the Village can regulate speech so long as such regulation is viewpoint neutral and reasonably related to a legitimate governmental interest. Perry Education Association v. Perry Local Educators' Association, 460 U.S. 37 (1983). In a nonpublic forum, the Village can regulate on the basis of both subject matter and speaker identity so long as such regulations are reasonably related to a legitimate Village interest, such as public safety. When a public forum is involved, speech can only be regulated if the regulation is a reasonable time, place and manner restriction, meaning it must be content neutral, narrowly tailored to serve a significant government interest, and leave open alternative channels of communicating the information. Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989). 2836631 Mr. Michael Janonis March 22, 2012 Page 2 Village rights of way are considered traditional public fora. Currently, the Village does not formally allow placement of any roadside memorials on the right of way. However, if the Village decides to do so, any regulations would be subject to First Amendment scrutiny, and therefore must be content neutral, narrowly tailored to serve a significant government interest, and leave open alternative channels of communicating the information. Any regulation the Village wishes to impose on roadside memorials must satisfy this test. II. Can the location of roadside memorials be limited to a certain distance from the memorialized event? If the Village desires to limit the location of roadside memorials, such a regulation will probably withstand First Amendment scrutiny. The regulation would be content neutral, as it would apply to all roadside memorials, and it would still allow the speech to occur. In addition, given the Village's public safety interest in avoiding cluttered parkways throughout the Village, limiting the placement of memorials to the general location of the event or action being memorialized would be a narrowly tailored regulation to serve such an interest. Therefore, this type of regulation would most likely be permissible under the First Amendment. III. Can roadside memorials only be erected at the request of an immediate family member? This regulation proves more troubling under the First Amendment. Although the Village would not be regulating the content of the speech, and therefore the regulation may on its face appear content neutral, the Village would be limiting the speaker. Certain people would be allowed to speak while others would not. Although the Village may have a significant interest in limiting the number of memorials for a certain event through only allowing immediate family request memorials, this type of regulation would not be narrowly tailored to achieve such an interest. Therefore, under general First Amendment analysis, this regulation would most likely be impermissible. IV. Can the Village regulate the length of time that a roadside memorial can be on display? This regulation is much more similar to the aforementioned distance regulation. It is clearly content neutral since it would apply to all roadside memorials regardless of content. In addition, it still allows for the speech to occur, but simply limits the duration. Such a regulation is narrowly tailored to serve the Village's interest in avoiding rights of way from becoming cluttered with old, deteriorated memorials. Therefore, this regulation would most likely be permissible under the First Amendment. 2836631 Mr. Michael Janonis March 22, 2012 Page 3 V. Does Illinois law regulate roadside memorials? The Illinois Roadside Memorial Act, "Tina's Law" (P.A. 95 -398), 605 ILCS 125/1 et seq., was adopted effective January 1, 2008. This Act establishes a statewide Roadside Memorial Program for people who died as a result of a driver under the influence of alcohol or other drugs. It allows municipalities to establish a Roadside Memorial program within its jurisdiction mimicking the state's program. The Illinois regulation seems problematic on its face, as it allows certain roadside memorials based solely on their content, i.e. drug and alcohol related accidents, and limits such memorials to the request of a qualified relative of a victim. Although it has yet to be challenged in court, it clearly presents problems under the First Amendment. If the Village were to adopt the Illinois law, it could be exposing itself to liability by only allowing certain types of memorials at the request of certain persons. Therefore, if the Village wishes to allow, but regulate, roadside memorials, the more prudent course would be to subject such memorials only to the distance and duration regulations discussed above. Additionally, as we discussed, application of the Village's ordinance on state rights of way may be questioned by the state. If you have any questions or need any additional information, please let me know. 2836631