The letter is below.

Hon. Willie Brown, Jr., Mayor
San Francisco Board of Supervisors
City Hall
1 Dr. Carlton B. Goodlett Place
San Francisco, CA 94102-4689

RE: Free Speech Rights of the Sisters of Perpetual Indulgence

Dear Mayor Brown and Board Members:

I am writing on behalf of the American Civil Liberties Union of Northern California ("ACLU"). It has come to our attention that the Board may be considering revoking the street fair permit issued recently to the Sisters of Perpetual Indulgence ("Sisters") for an event on Castro Street on April 4, 1999, or issuing the permit for a later date due to the event's coinciding with Easter Sunday. Because either action would so obviously violate the First and Fourteenth Amendment rights of this group, we urge you to let the issued permit stand.

The City's discretion in the issuance and revocation of permits is limited. See N.A.A.C.P., Western Region v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984). The government cannot grant or withhold permits regulating speech using criteria unrelated to proper regulation of public places. Kunz v. New York, 340 U.S. 290, 294 (1950). In particular, permission to use a public forum cannot be denied based on the content of a speaker's intended communication. See Cox v. New Hampshire, 312 U.S. 569, 576 (1941). In the case of the Sisters, there appears to be no valid public regulatory purpose for revoking the street fair permit; instead, revocation would be motivated by the desire to restrict the Sisters' speech because of its message and content. This is impermissible.

These principles are no less applicable when the proposed speech promises to be disrespectful or unsavory to some onlookers. Under the First Amendment and the Equal Protection Clause, the government may not engage in content-based discrimination, much less viewpoint-based discrimination, by selectively targeting speech on "disfavored subjects." R.A.V. v. City of St. Paul, 505 U.S. 455, 460-61 (1980). To do so would compromise this nation's commitment to "uninhibited, robust, and wide-open debate on public issues." Police Dept. of the City of Chicago v. Mosley, 408 U.S. 92, 96 (1972). The fact that the government may deem the speech or expression in question to be "provocative, abusive, and ill-mannered" or even an "assault . . . on our established churches and the cherished faiths of many of us" is no justification for its suppression. Murdock v. Pennsylvania, 319 U.S. 105, 116 (1942). Communities may not suppress the dissemination of views they consider to be "unpopular, annoying or distasteful." Id. Almost invariably, "conduct that annoys some people does not annoy others." Coates v. Cincinnati, 402 U.S. 611, 614 (1971). It is simply not for the government to decide.

The fact that officials of the Catholic Church-or any other bystander to the Sisters' demonstration-may vociferously object to the Sisters' words, ideas, appearance, or message should not sway the City at all. Objectors to speech, even respected ones, cannot hold "veto" power over whether that speech is heard. Cox v. Louisiana, 379 U.S. 536, 551 (1965). Were the government to let the objectors reign, very little speech from controversial or dissident viewpoints would be heard at all. Chaplinsky v. New Hampshire, 315 U.S. 568, 572 (1942) ("It is firmly settled that under our Constitution the public expression of ideas may not be prohibited merely because the ideas are themselves offensive to some of the hearers.")

Nor does a rescheduling of the street fair to another date improve matters. First of all, the fact that the Sisters' twentieth anniversary happens to fall on a major religious holiday should be of no concern to an official of the State. Second, "the loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury." Elrod v. Burns, 427 U.S. 347, 373 (1976). In the issuance of permits, time is often of the essence. See Collin v. Chicago Park District, 460 F.2d 746, 757 (7th Cir. 1972). Given that the date of the street fair-April 4, 1999-is particularly significant to the permit holders, either prolonged uncertainty over the permit status or the forced postponement of the festivities would undermine the central, commemorative purpose of the event.

In closing, the ACLU is somewhat astonished that the City of San Francisco, with its rich history of celebrating and honoring free expression, would even pause to reconsider the permit issuance to the Sisters. This is a city that is renowned for its solemn respect for diverse viewpoints, beliefs, and cultures, and for its insouciant spirit. The City should not diverge from this proud and motley tradition-not now and not ever.

Very truly yours,

Dorothy M. Ehrlich
Executive Director

Robert Kim
Staff Attorney