The City Council is considering rules governing First Amendment activities at parks more than 10 years after protesters filed a lawsuit because there was no process to determine where and how they could demonstrate against the 2001 Asian Development Bank conference.

The Council’s Parks and Cultural Affairs Committee voted 4-1 Tuesday to give preliminary approval to Bill 38, which allows groups convening at a city park for what is defined as "expressive activity" to gather without a permit if there are less than 75 people. Gatherings for up to 150 people would be allowed without permit at Ala Moana Beach Park and Kapiolani Park because they are larger.

Expressive activity is defined as speech or conduct used to express, disseminate or communicate "political, religious, philosophical or ideological opinions, views or ideas" by verbal, visual, literary or auditory means, provided there is no fee charged or required. Sports events, fundraisers, beauty contests, commercial events, cultural celebrations or other entertainment-focused gatherings are not considered expressive activity under the bill, nor are art fairs or open markets.

The bill says those nonpermit limits can be waived altogether when any group gathers for expressive activity "due to a spontaneous event occasioned by news or affairs coming into public knowledge within 48 hours of such expressive activity," provided written notice is provided to the city "as soon as practicable."

The bill was spawned as part of a court order after a lawsuit by the American Civil Liberties Union in response to the city’s lack of rules on expressive activity when organizations seeking to demonstrate and parade against the ADB gathering attempted to obtain permits.

While the city worked with the protest groups to find areas where they could protest and hold marches, the courts told the city it needed to set down rules in the long term, said Deputy Corporation Counsel Dawn Spurlin, who added that city attorneys worked closely with the ACLU to craft the bill.

The ACLU submitted testimony in support of the bill, noting that current city law fails to comply with the constitutional amendment guaranteeing the right to free speech. No provisions were in place not only during the ADB conference, but when the Asia-Pacific Economic Cooperation meetings were held here in November.

Spurlin said the definition of expressive activity comes from court orders, as do other provisions in the bill.

"The goal of the department and … the ACLU is to allow the First Amendment activities to occur," she said. "The group just needs to provide the city with notice."

A person or group who may have obtained a permit to use a space at a city park would have first claim over a group wishing to conduct an expressive activity without a permit, Spurlin said.

The bill would not conflict with the so-called "stored personal property" law, which allows the city to seize property left in city parks, or laws governing park hours, both of which are allowed by the courts, Spurlin said.

"The courts have said that park closure laws are reasonable time, place and manner restrictions which government can impose," she said.