Utah political leaders are trying to figure out how "free" speech should be in the Capitol, especially during legislative sessions.
Attorney Brian Barnard, representing two animal rights activists, got a Utah federal judge to issue a temporary restraining order the final days of the 2008 Legislature after the two people were forced out of the Capitol for conducting a "spontaneous" protest by holding signs outside the third-floor House Chamber's main doors.
Barnard, who has made his reputation representing clients in constitutional cases, said that while he and federal Judge Tena Campbell can't write the new protest rules for political leaders, the leaders should make some "reasonable" rules concerning the right of free speech in the Capitol.
Otherwise, if protesters are "hassled" again, he will be back in federal court, Barnard said.
House Speaker Greg Curtis, R-Sandy, said legislative leaders were not pleased to learn recently that the Capitol Preservation Board and the Legislature itself have slightly different rules on public protests in the Capitol and on the grounds.
Curtis and Senate President John Valentine, R-Orem, sit on the preservation board and believed that the rules were the same for both entities, the speaker said.
"We're going to try to address both sets of rules," said Curtis. That will involve making them the same, as well as updating them now that the Legislature has moved from its three-year temporary quarters in a building behind the Capitol into the restored main building.
Curtis promised that large groups will be able to have planned and spontaneous protests outside of the Capitol any time, and that protests can be inside the Capitol as long as they don't disrupt the work of lawmakers, either in their committee meetings or on the House and Senate floor.
Every winter there are groups that hold news conferences or protests as lawmakers meet in their 45-day general session in January and February.
Two years ago, Barnard, representing animal rights protesters and disabled Utahns, won a federal lawsuit after Utah Highway Patrol troopers, citing Capitol rules, refused to let protesters hand out leaflets in front of the temporary House chambers.
Lobbyists and other citizens routinely talk to legislators in crowded hallways outside of the House and Senate chambers and sometimes also give lawmakers printed information. But Capitol Hill rules supposedly didn't allow protesters to pass out fliers, which included some ugly pictures of people's rotting teeth.
Barnard won that suit, getting $15,000 in attorney's fees and small cash payouts to his clients, he said.
Now, his latest lawsuit seeks similar damages but even more importantly, Barnard said, Utah's state political leaders "should not come up with crazy rules that make no sense."
Barnard went to court just before the 2008 Legislature ended after troopers told two animal rights advocates they couldn't hold up poster-size protest signs outside of the third-floor House Chamber. They could pass out leaflets, but not hold up the placards because the placards amounted to a demonstration, the troopers said.
Wrong, said Judge Campbell, who issued an order saying that the protesters could hold up the signs. That order expired when lawmakers adjourned, which could lead to another court battle in the 2009 Legislature.
Now, legislative leaders need to adopt "coordinated" rules for the preservation board (which oversees the grounds and certain parts of the Capitol) and the Legislature (which handles rules in and around the legislative space in the Capitol), said Curtis.
Curtis complained that Barnard is making a "cottage industry" of suing the state over free-speech issues. After the new rules are adopted, Curtis said he wouldn't be surprised if Barnard "gets some of his clients" to again protest outside of those rules, and then sue in federal court, seeking a small award for his clients and attorney fees for himself.
"This very well may be an ongoing issue, so we should adopt the best rules we can now," Curtis said.
Barnard said the Legislature and preservation board have adopted foolish free-speech rules that make little sense. "It is like they don't want any free speech on the third floor" where the Senate and House chambers are and where lobbyists and others gather outside in the hallways to talk to legislators.
There is no good reason that "spontaneous demonstrations" cannot be held there as well, Barnard said. Stopping "two people shouting" slogans near the third-floor chambers is a clear violation of their constitutional free-speech rights.
Curtis said there are good reasons, such as if crowds become too large and if noisy demonstrations disrupt the floor and committee work of legislators.
"Is it five people (demonstrating) or 500? It can make a difference," Curtis said.But the speaker promised that no matter what the size of the group, outside protests should be allowed as they have been in the past.