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With her fight to get women admitted to Augusta National Golf Club apparently stalled, Martha Burk came to Atlanta last week with a different mission in mind: Convince a federal court that an Augusta public demonstration ordinance violated the First Amendment’s guarantee of free speech. Burk and her lawyers claim the law gives too much discretion to the sheriff, who, during last spring’s Masters Tournament, moved protesters nearly a half-mile from the club’s main gate. During 50 minutes of lively oral arguments on Friday, a three-judge panel of the 11th U.S. Circuit Court of Appeals sounded far more sympathetic to Burk’s legal argument than many Augusta National members have been to her women’s rights claim. Judges R. Lanier Anderson III and Rosemary Barkett seemed particularly skeptical of the law, with Anderson saying it “discriminates on the basis of subject matter.” The case grew out of Burk’s heated battle with Augusta National, her promises to hold a protest during the Masters Tournament and efforts by six other groups to hold related demonstrations — some siding with Burk and her National Association of Women’s Organizations, others against, and others with no apparent agenda at all. Citing public safety concerns, Augusta Sheriff Ronnie Strength arranged for all of the demonstrations to take place on club-owned land 700 yards down the street from the club’s main entrance. Burk, the American Civil Liberties Union and Rainbow/PUSH asked for an injunction barring the county from enforcing the ordinance. But U.S. District Court Chief Judge Dudley H. Bowen denied the groups’ request, noting that the groups had little chance of succeeding on the merits of their claim. CONSTITUTIONALITY QUESTIONED But on Friday, Anderson, Barkett and 11th Circuit Senior Judge Paul H. Roney sounded far less sure of the law’s constitutionality. The panel’s questioning required each side to exceed its 15-minute limit by at least 10 minutes. Burk’s lawyer, Sarah M. Shalf of Bondurant, Mixson & Elmore, told the judges that the ordinance is a content-based prior restraint on speech, which gives the sheriff far too much power to determine whether the speech is permitted. Also, she said, the ordinance is far too broad to achieve its purported public safety objectives. She asked the court to reverse Bowen’s order and find that it violates the First Amendment. Anderson asked Shalf to focus on her content-based argument, and Shalf readily obliged. The ordinance, she said, applies specifically to demonstrations by five or more people supporting or opposing some unspecified thing. REGULATING CONTENT? By applying the ordinance specifically to protest, she said, the city council was trying to regulate content. “You can’t use speech as a proxy for problematic conduct,” she added. Anderson wondered what would happen if the 11th Circuit agreed with Shalf that the ordinance gives unbridled discretion to the sheriff and increases the danger of censorship. “You don’t think we’d get summarily reversed by the Supreme Court?” he asked. “I don’t think I can promise that,” Shalf said. “But you think it’s pretty sound,” Anderson said. “I do. I think it’s sound,” Shalf said. AUGUSTA LAWYER DELUGED James W. Ellison of Burnside, Wall, Daniel, Ellison & Revell, represented Augusta-Richmond County and had to handle a barrage of skeptical questions from the judges. He started by pointing out that the Augusta-Richmond County Commission had followed very carefully the U.S. Supreme Court’s language in Thomas v. Chicago Park District, 534 U.S. 316 (2002), which concerned the use of Chicago’s city parks. Some of the language is nearly verbatim, Ellison said, particularly the section allowing the sheriff the discretion to determine whether to issue a permit on the basis of a threat to public safety. But Anderson didn’t seem especially convinced. “ Thomas is very different, because it applies to every gathering — even a picnic,” the judge said. This case deals only with protests and demonstrations, Anderson added, telling Ellison that the ordinance may be in trouble in at least one respect. “It does seem to me that it discriminates on the basis of subject matter and that it is therefore content-based,” he said. And the ordinance seems to apply to all sorts of gatherings, at the discretion of the sheriff’s office, Anderson added. Anderson noted that the sheriff’s “unbridled authority” under the ordinance concerned him because of the heightened risk of censorship. “Why should there not be a harder look at the standard of the discretion?” he asked. “Maybe there should be,” Ellison replied, adding that he was confident the ordinance could withstand heightened scrutiny. WHAT’S A DEMONSTRATION? Barkett asked Ellison what in the ordinance distinguishes a “demonstration” requiring a permit from a mere gathering of five people. “How would a police officer in Augusta determine that someone had gathered for a public demonstration?” she asked. “I think it would be obvious,” said Ellison, explaining that there would be nothing wrong with an officer adopting a “common sense” approach to determining whether a protest is taking place. Five people standing around outside a movie theater, for example, probably wouldn’t come under the ordinance, Ellison said. “Are you going to be there at the gatherings to decide ad hoc?” Burkett asked. The case is Burk v. Richmond County, No. 03-11756-D.

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