Salt Lake Mayor Palmer DePaulis ruled Tuesday that a local AIDS foundation can't distribute condoms inside an informational brochure to be given away at the city's Neighbor Fair at Liberty Park on Pioneer Day.
But the American Civil Liberties Union is considering legal action to reverse the decision, claiming the prohibition violates First Amendment rights to freedom of speech, the group's director said.The condoms were to be distributed at a Salt Lake AIDS Foundation booth set up among scores of other non-profit organizations that participate in the Neighbor Fair. Officials said last year's fair attracted up to 400,000 people.
But such distribution "would be inappropriate to the environment" that the city, one of three co-sponors of the event, hopes to achieve at the fair, DePaulis said.
The foundation's right to distribute educational material was not at issue in the ruling, he emphasized. In fact, DePaulis said he condones AIDS education. But including a condom in the material detracted from the intended atmosphere at the fair, he said.
"Our purpose is to provide a wholesome activity on the 24th of July . . . but distributing condoms is not fitting with that," the mayor said.
The foundation planned to include the condoms in a pamphlet called "Condom Sense Rules," which would be distributed only to those 21 or older who sought information at the booth, executive director Ben Barr said.
"We don't want to come across as heavies, passing out condoms to kids," he said.
But a city parks and recreation official was concerned the condoms could possibly fall into the hands of children attending the event.
"There are just too many kids; we don't want them making water balloons out of them," said parks department recreation director Scott Gardner, who coordinates the event together with a private contractor.
ACLU Executive Director Robyn Blumner said the ruling violates the foundation's right to freedom of speech because the condom was included as a symbol in the educational brochure, making the condom an element of speech protected by the Constitution.
"The condom is merely an exclamation point and not there just to provide contraceptive service," she said, adding the ACLU is considering legal action to change the city's decision.
But City Attorney Roger Cutler argued that although the brochure is constitutionally protected from censorship, the condom may not be.
The Supreme Court has ruled that symbolic speech does not enjoy unlimited protection, Cutler said, adding he was unprepared to render a complete opinion on the matter pending further review.
The issue is fraught with other constitutional questions, Cutler said.
Whether the fair is an appropriate forum for a political message and whether the city, one of three co-sponsors, could be held responsible for monitoring distribution are two of those questions, he said.
Cutler left room for a change of mind in the matter, saying "it definitely has to be reviewed from a policy point of view."
Cutler downplayed any controversy associated with the issue. The city is not engaged in a "book burning," he said. "It's simply a question of what is appropriate for this event."
The Neighbor Fair, to be held July 25 because July 24 falls on a Sunday, is also being sponsored by US WEST Direct and KLCY Radio, Gardner said. Non-profit groups pay $150 to $200 to rent booth space at the event, he said.