Attorney General Andy Beshear’s office is reviewing a new emergency regulation recently enacted by Governor Matt Bevin impacting public access to state buildings and facilities. The new rules require those wanting to assemble at a state building to submit an application ten days in advance of the event.
“And that could be potentially problematic because if you take an example of last year when there were more or less spontaneous reaction to and demonstration against the pension reform measure that seemingly wouldn’t pass muster under the new administrative regulation,” said Michael Abate, a Louisville based attorney with experience in media and constitutional law.
In the last legislative session, Kentucky public school teachers spontaneously showed up at the Capitol to protest a controversial pension law.
“One could read these rules as an attempt to prohibit that from occurring again because for example somebody might be denied entry into the building for that kind of an event on the grounds that it wasn’t permitted in advance ten days before,” Abade told WKU Public Radio.
Abate said the legality of the regulation depends on how it’s enforced. He said it’s not clear to him why the new rules were implemented, other than to control access to legislative buildings during the General Assembly.
Abate said the government is allowed to have certain restrictions concerning state buildings and facilities, as long as they’re clearly-stated and enforced on a neutral basis. Otherwise, Abate said the rules could raise First Amendment concerns.
“It remains to be seen how all this is going to play out. And while governments and government agencies do have the right to enact neutral what we call time, place, and manner restrictions," he said. "Courts are somewhat skeptical of those to make sure they’re not just a pretext in order to favor of disfavor a particular viewpoint.”
He said the new rules raise questions under Kentucky’s Open Meetings Law, which say a meeting has to be open and available to the public anytime a public agency is conducting business. The new regulation also says any group approved for use of the Capitol building has to reimburse the state for the cost of all staff services including security, setup, janitorial and maintenance. Gov. Bevin’s office did not return multiple requests for comment.