Martha Burk Wins Augusta Speech Challenge

Martha Burk just wanted to get women admitted to the Augusta National Golf Club, but her suit could also affect the G8 summit scheduled for June at Georgia's Sea Island, now that the 11th Circuit has struck down as unconstitutional a local ordinance on public demonstrations. That decision could open the door for a protest at next year's Masters Tournament's front gate, and some say the ruling will be felt far beyond the golf world.

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Martha Burk just wanted to get women admitted to the Augusta National Golf Club, but a suit she brought could affect the G8 summit scheduled for June at Georgia’s Sea Island. Burk on Thursday won a 2-1 decision by a federal appeals court that struck down as unconstitutional an Augusta ordinance regulating public demonstrations. The ruling could clear the way for Burk and the National Council of Women’s Organizations to protest next year’s Masters Tournament at or near the club’s front gate. They held no protest this year because the ordinance allowed the sheriff to move protests to a field 700 yards away. But Gerald R. Weber Jr. of the American Civil Liberties Union, which represented Burk, said the decision by the 11th U.S. Circuit Court of Appeals would be felt far beyond the world of golf. The Georgia ACLU chapter is also representing groups planning to demonstrate at the G8 meeting, in which President Bush and leaders from seven other nations will discuss international trade. Savannah and Brunswick, where some G8 protests are scheduled, have demonstration ordinances similar to Augusta’s, Weber said. The 11th Circuit ruling, Weber added, “is going to have a very significant effect” on those laws. A spokeswoman for Gov. George E. “Sonny” Perdue III’s office, which is organizing the state’s G8 plans, referred questions to local government attorneys, who could not be reached by press time. Burk’s opposition to Augusta National’s all-male membership policy and her protest of the 2003 Masters prompted the Augusta-Richmond County government to pass a law that required groups of five or more to get a permit before holding a political demonstration. The ordinance also required demonstrators to indemnify local governments from claims arising from the protests. Demonstrators also had to get government approval of their indemnity plans. Both requirements violated the First Amendment’s guarantee of free speech, Judges R. Lanier Anderson III and Rosemary Barkett declared, over the dissent of Senior Judge Paul H. Roney. Speech Discrimination One problem with the law was that it required permits only for groups supporting or protesting-thereby discriminating against the groups based on the content of their speech, Anderson and Barkett decided. Representing the Augusta-Richmond County government, James W. Ellison of Augusta’s Burnside, Wall, Daniel, Ellison & Revell said the law targeted only political demonstrations so that five people having a picnic in a park would not have to get a permit. “Nobody wants that,” he said, adding that he didn’t know whether the government would appeal Thursday’s decision. But Anderson wrote in the majority decision that regulating only political speech did not fit with the government’s “purported goals” — maintaining public safety, avoiding traffic congestion, keeping the peace and providing advance notice to law enforcement officials of public events. Concluding that street parties or a performance by a five-person musical band also could threaten public safety, Anderson declared that the ordinance regulated speech based on content. That decision meant that the court subjected the ordinance to “strict scrutiny,” a standard that doomed the statute to being held unconstitutional. TOO MUCH POWER The indemnification provision was unconstitutional, Anderson wrote, because it granted “excessive discretion” to the county attorney, who was authorized to approve or deny demonstrators’ applications. Burk v. Augusta-Richmond County, No. 03-11756 (11th Cir. April 15, 2004). Roney echoed arguments made by Augusta-Richmond County, pointing out that the ordinance was modeled after one upheld unanimously in 2002 by the U.S. Supreme Court in Thomas v. Chicago Park District, 534 U.S. 316. He also noted that Burk and the other plaintiffs had not originally challenged the ordinance on the grounds of viewpoint discrimination. Burk, reached by cell phone, laughed and exclaimed “Good!” when a reporter told her of the decision. She added it was “curious” that the court issued its ruling only four days after the Masters, the event her group wanted to protest. But Sarah M. Shalf, the Bondurant, Mixson & Elmore associate who argued at the 11th Circuit on behalf of Burk, pointed out that had a decision come in the week before the tournament, “it would have been complicated” for the courts and the government, and difficult for her client’s group to have arranged a protest.

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