OCTOBER TERM, 1991
Syllabus
FORSYTH COUNTY, GEORGIA
v. NATIONALIST MOVEMENT
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE
ELEVENTH CIRCUIT
No. 91-538. Argued March 31, 1992-Decided June 19, 1992
Petitioner county's Ordinance 34 mandates permits for private
demonstrations and other uses of public property; declares that the
cost of protecting participants in such activities exceeds the
usual and normal cost of law enforcement and should be borne by the
participants; requires every permit applicant to pay a fee of not
more than $1,000; and empowers the county administrator to adjust
the fee's amount to meet the expense incident to the ordinance's
administration and to the maintenance of public order. After the
county attempted to impose such a fee for respondent's proposed
demonstration in opposition to the Martin Luther King, Jr., federal
holiday, respondent filed this suit, claiming that the ordinance
violates the free speech guarantees of the First and Fourteenth
Amendments. The District Court denied relief, ruling that the
ordinance was not unconstitutional as applied in this case. The
Court of Appeals reversed, holding that an ordinance which charges
more than a nominal fee for using public forums for public issue
speech is facially unconstitutional.
Held: The ordinance is facially invalid. Pp. 129-137.
(a) In order to regulate competing uses of public forums,
government may impose a permit requirement on those wishing to hold
a march, parade, or rally, if,
inter alia, the permit scheme
does not delegate overly broad licensing discretion to a government
official,
Freedman v.
Maryland, 380 U. S. 51, 56, and is
not based on the content of the message, see
United States
v.
Grace, 461
U. S. 171, 177. Pp. 129-130.
(b) An examination of the county's implementation and
authoritative constructions of the ordinance demonstrates the
absence of the constitutionally required "narrowly drawn,
reasonable and definite standards,"
Niemotko v.
Maryland, 340
U. S. 268, 271, to guide the county administrator's hand when
he sets a permit fee. The decision how much to charge for police
protection or administrative time-or even whether to charge at
all-is left to the unbridled discretion of the administrator, who
is not required to rely on objective standards or provide any
explanation for his decision. Pp. 130-133.
(c) The ordinance is unconstitutionally content based because it
requires that the administrator, in order to assess accurately the
cost of
124
security for parade participants, must examine the content of
the message conveyed, estimate the public response to that content,
and judge the number of police necessary to meet that response.
Cox v.
New Hampshire, 312 U. S. 569,
distinguished. Pp. 133-136.
(d) Neither the $1,000 cap on the permit fee, nor even some
lower "nominal" cap, could save the ordinance.
Murdock v.
Pennsylvania, 319 U. S. 105, 116,
distinguished. The level of the fee is irrelevant in this context,
because no limit on the fee's size can remedy the ordinance's
constitutional infirmities. pp. 136-137.
913 F.2d
885 and
934 F.2d
1482, affirmed.
BLACKMUN, J., delivered the opinion of the Court, in which
STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. REHNQUIST, C.
J., filed a dissenting opinion, in which WHITE, SCALIA, and THOMAS,
JJ., joined,
post, p. 137.
Robert S.
Stubbs III argued the cause for
petitioner.
With him on the briefs was
Gordon A. Smith.
Richard Barrett argued the cause and filed a brief for
respondent. *
JUSTICE BLACKMUN delivered the opinion of the Court. In this
case, with its emotional overtones, we must decide whether the free
speech guarantees of the First and Fourteenth Amendments are
violated by an assembly and parade ordinance that permits a
government administrator to vary the fee for assembling or parading
to reflect the estimated cost of maintaining public order.
I
Petitioner Forsyth County is a primarily rural Georgia county
approximately 30 miles northeast of Atlanta. It has
* Jody M. Litchford filed a brief for the city of
Orlando et al. as
amici curiae urging reversal.
Briefs of
amici curiae urging affirmance were filed for
the American Civil Liberties Union et al. by
Eric Neisser,
Steven R. Shapiro, John A. Powell, and
Elliot M.
Mincberg; for the American Federation of Labor and Congress of
Industrial Organizations by
Marsha S.
Berzon and
Laurence Gold; and for Public Citizen by
David C.
Vladeck and
Alan B. Morrison.
125
had a troubled racial history. In 1912, in one month, its entire
African-American population, over 1,000 citizens, was driven
systematically from the county in the wake of the rape and murder
of a white woman and the lynching of her accused assailant.1
Seventy-five years later, in 1987, the county population remained
99% white.2
Spurred by this history, Hosea Williams, an Atlanta city
councilman and civil rights personality, proposed a Forsyth County
"March Against Fear and Intimidation" for J anuary 17, 1987.
Approximately 90 civil rights demonstrators attempted to parade in
Cumming, the county seat. The marchers were met by members of the
Forsyth County Defense League (an independent affiliate of
respondent, The Nationalist Movement), of the Ku Klux Klan, and
other Cumming residents. In all, some 400 counterdemonstrators
lined the parade route, shouting racial slurs. Eventually, the
counterdemonstrators, dramatically outnumbering police officers,
forced the parade to a premature halt by throwing rocks and beer
bottles.
Williams planned a return march the following weekend.
It developed into the largest civil rights demonstration in the
South since the 1960's. On January 24, approximately 20,000
marchers joined civil rights leaders, United States Senators,
Presidential candidates, and an Assistant United States Attorney
General in a parade and rally.3 The 1,000 counterdemonstrators on
the parade route were contained
1 The 1910 census counted 1,098 African-Americans in Forsyth
County.
U. S. Dept. of Commerce, Bureau of Census, Negro Population
1790-1915, p. 779 (1918). For a description of the 1912 events, see
generally Hackworth, "Completing the Job" in Forsyth County, 8
Southern Exposure 26 (1980).
2 See J. Clements, Georgia Facts 184 (1989); Hackworth, 8
Southern Exposure, at 26 ("[O]ther than an occasional delivery
truck driver or visiting government official, there are currently
no black faces anywhere in the county").
3See Chicago Tribune, Jan. 25,1987, p. 1; Los Angeles Times,
Jan. 25, 1987, p. 1, col. 2; App. to Pet. for Cert. 89-91.
126
by more than 3,000 state and local police and National
Guardsmen. Although there was sporadic rock throwing and 60
counterdemonstrators were arrested, the parade was not interrupted.
The demonstration cost over $670,000 in police protection, of which
Forsyth County apparently paid a small portion.4 See App. to Pet.
for Cert. 75-94; Los Angeles Times, Jan. 28, 1987, Metro section,
p. 5, col. 1.
"As a direct result" of these two demonstrations, the Forsyth
County Board of Commissioners enacted Ordinance 34 on January 27,
1987. See Brief for Petitioner 6. The ordinance recites that it is
"to provide for the issuance of permits for parades, assemblies,
demonstrations, road closings, and other uses of public property
and roads by private organizations and groups of private persons
for private purposes." See App. to Pet. for Cert. 98. The board of
commissioners justified the ordinance by explaining that "the cost
of necessary and reasonable protection of persons participating in
or observing said parades, assemblies, demonstrations, road
closings and other related activities exceeds the usual and normal
cost of law enforcement for which those participating should be
held accountable and responsible."
Id., at 100. The
ordinance required the permit applicant to defray these costs by
paying a fee, the amount of which was to be fixed "from time to
time" by the Board.
Id., at 105.
Ordinance 34 was amended on June 8, 1987, to provide that every
permit applicant "'shall pay in advance for such permit, for the
use of the County, a sum not more than $1,000.00 for each day such
parade, procession, or open air public meeting shall take place.'"
Id., at 119.5 In addition, the county
4 Petitioner Forsyth County does not indicate what portion of
these costs it paid. Newspaper articles reported that the State of
Georgia paid an estimated $579,148. Other government entities paid
an additional $29,759. Figures were not available for the portion
paid by the city of Atlanta for the police it sent. See
id.,
at 95-97.
5 The ordinance was amended at other times, too, but those
amendments are not under challenge here.
127
administrator was empowered to "'adjust the amount to be paid in
order to meet the expense incident to the administration of the
Ordinance and to the maintenance of public order in the matter
licensed.'"
Ibid.
In January 1989, respondent The Nationalist Movement proposed to
demonstrate in opposition to the federal holiday commemorating the
birthday of Martin Luther King, Jr. In Forsyth County, the Movement
sought to "conduct a rally and speeches for one and a half to two
hours" on the courthouse steps on a Saturday afternoon.
Nationalist Movement v.
City of Cumming, 913 F.2d
885, 887 (CAll 1990).6 The county imposed a $100 fee. The fee
did not include any calculation for expenses incurred by law
enforcement authorities, but was based on 10 hours of the county
administrator's time in issuing the permit. The county
administrator testified that the cost of his time was deliberately
undervalued and that he did not charge for the clerical support
involved in processing the application. Tr. 135-139.
The Movement did not pay the fee and did not hold the rally.
Instead, it instituted this action on January 19, 1989, in the
United States District Court for the Northern District of Georgia,
requesting a temporary restraining order and permanent injunction
prohibiting Forsyth County from interfering with the Movement's
plans.
The District Court denied the temporary restraining order and
injunction. It found that, although "the instant ordinance vests
much discretion in the County Administrator in determining an
appropriate fee," the determination of the fee was "based solely
upon content-neutral criteria; namely,
6 The demonstration proposed was to consist of assembling at the
Forsyth County High School, marching down a public street in
Cumming to the courthouse square, and there conducting a rally.
Only the rally was to take place on property under the jurisdiction
of the county. The parade and assembly required permits from the
city of Cumming and the Forsyth County Board of Education. Their
permit schemes are not challenged here.
128
the actual costs incurred investigating and processing the
application." App. to Pet. for Cert. 13-14. Although it expressed
doubt about the constitutionality of that portion of the ordinance
that permits fees to be based upon the costs incident to
maintaining public order, the District Court found that "the county
ordinance, as applied in this case, is not unconstitutional."
Id., at 14.
The United States Court of Appeals for the Eleventh Circuit
reversed this aspect of the District Court's judgment.
Nationalist Movement v.
City of Cumming, 913 F.2d
885 (1990). Relying on its prior opinion in
Central Florida
Nuclear Freeze Campaign v.
Walsh, 774
F.2d 1515, 1521 (CAll 1985), cert. denied, 475 U. S. 1120
(1986), the Court of Appeals held: "An ordinance which charges more
than a nominal fee for using public forums for public issue speech,
violates the First Amendment." 913 F. 2d, at 891 (internal
quotation marks omitted). The court determined that a permit fee of
up to $1,000 a day exceeded this constitutional threshold.
Ibid. One judge concurred specially, calling for
Central
Florida to be overruled. 913 F. 2d, at 896.
The Court of Appeals then voted to vacate the panel's opinion
and to rehear the case en bane.
921 F.2d
1125 (1990). After further briefing, the court issued a
per
curiam opinion reinstating the panel opinion in its entirety.
934 F.2d
1482, 1483 (1991). Two judges, concurring in part and
dissenting in part, agreed that any fee imposed on the exercise of
First Amendment rights in a traditional public forum must be
nominal if it is to survive constitutional scrutiny. Those judges,
however, did not believe that the county ordinance swept so broadly
that it was facially invalid, and would have remanded the case for
the District Court to determine whether the fee was nominaP
Ibid. Three judges
7 These judges also found that the ordinance contained
sufficiently tailored standards for the administrator to use in
reviewing permit applications.
934 F.2d
1482, 1487-1489 (1991). This issue was raised by respondent,
but the panel did not reach it.
129
dissented, arguing that this Court's cases do not require that
fees be nominal.
Id., at 1493.
We granted certiorari to resolve a conflict among the Courts of
Appeals concerning the constitutionality of charging a fee for a
speaker in a public forum.8 502 U. S. 1023 (1991).
II
Respondent mounts a facial challenge to the Forsyth County
ordinance. It is well established that in the area of freedom of
expression an overbroad regulation may be subject to facial review
and invalidation, even though its application in the case under
consideration may be constitutionally unobjectionable. See,
e.
g., City Council of Los Angeles v.
Taxpayers for
Vincent, 466 U.
S. 789, 798-799, and n. 15
(1984); Board of Airport Comm'rs
of Los Angeles v.
Jews for Jesus, Inc., 482 U. S. 569, 574
(1987). This exception from general standing rules is based on an
appreciation that the very existence of some broadly written laws
has the potential to chill the expressive activity of others not
before the court. See,
e. g., New York v.
Ferber,
458 U. S. 747,
772
(1982); Brockett v.
Spokane Arcades, Inc.,
472 U. S. 491,
503 (1985). Thus, the Court has permitted a party to challenge an
ordinance under the overbreadth doctrine in cases where every
application creates an impermissible risk of suppression of ideas,
such as an ordinance that delegates overly broad discretion to the
decisionmaker, see
Thornhill v.
Ala-
8 Compare the Eleventh Circuit's opinions in this litigation,
913 F.2d
885, 891 (1990), and
934 F.2d
1482, 1483 (1991), with
Stonewall Union v.
Columbus, 931 F.2d
1130, 1136
(CA6) (permitting greater than nominal fees
that are reasonably related to expenses incident to the
preservation of public safety and order), cert. denied, 502 U. S.
899 (1991);
Eastern Conn. Citizens Action Group v.
Powers, 723 F.2d
1050, 1056
(CA2 1983) (licensing fees permissible only
to offset expenses associated with processing applications for
public property);
Fernandes v.
Limmer, 663 F.2d
619,
632-633 (CA5 1981) ($6 flat fee for permit was
unconstitutional), cert. dism'd, 458 U. S. 1124 (1982).
130
bama, 310 U.
S. 88, 97 (1940);
Freedman v.
Maryland, 380 U. S.
51, 56 (1965);
Taxpayers for Vincent, 466 U. S., at 798, n.
15, and in cases where the ordinance sweeps too broadly, penalizing
a substantial amount of speech that is constitutionally protected,
see
Broadrick v.
Oklahoma, 413 U. S. 601 (1973);
Jews for Jesus, 482 U. S., at 574-575.
The Forsyth County ordinance requiring a permit and a fee before
authorizing public speaking, parades, or assemblies in "the
archetype of a traditional public forum,"
Frisby v.
Schultz, 487
U. S. 474, 480 (1988), is a prior restraint on speech, see
Shuttlesworth v.
Birmingham, 394 U. S. 147, 150-151
(1969);
Niemotko v.
Maryland, 340 U. S. 268, 271
(1951). Although there is a "heavy presumption" against the
validity of a prior restraint,
Bantam Books, Inc. v.
Sullivan,
372
U. S. 58, 70 (1963), the Court has recognized that government,
in order to regulate competing uses of public forums, may impose a
permit requirement on those wishing to hold a march, parade, or
rally, see
Cox v.
New Hampshire, 312 U. S. 569, 574-576
(1941). Such a scheme, however, must meet certain constitutional
requirements. It may not delegate overly broad licensing discretion
to a government official. See
Freedman v.
Maryland,
supra. Further, any permit scheme controlling the time, place,
and manner of speech must not be based on the content of the
message, must be narrowly tailored to serve a significant
governmental interest, and must leave open ample alternatives for
communication. See
United States v.
Grace, 461 U. S. 171, 177
(1983).
A
Respondent contends that the county ordinance is facially
invalid because it does not prescribe adequate standards for the
administrator to apply when he sets a permit fee. A government
regulation that allows arbitrary application is "inherently
inconsistent with a valid time, place, and manner regulation
because such discretion has the potential for becoming a means of
suppressing a particular point of view."
131
Heffron v.
International Society for Krishna
Consciousness, Inc., 452 U. S. 640, 649
(1981). To curtail that risk, "a law subjecting the exercise of
First Amendment freedoms to the prior restraint of a license" must
contain "narrow, objective, and definite standards to guide the
licensing authority."
Shuttlesworth, 394 U. S., at 150-151;
see also
Niemotko, 340 U. S., at 271. The reasoning is
simple: If the permit scheme "involves appraisal of facts, the
exercise of judgment, and the formation of an opinion,"
Cantwell v.
Connecticut, 310 U. S. 296, 305 (1940),
by the licensing authority, "the danger of censorship and of
abridgment of our precious First Amendment freedoms is too great"
to be permitted,
Southeastern Promotions, Ltd. v.
Conrad, 420 U.
S. 546, 553 (1975).
In evaluating respondent's facial challenge, we must consider
the county's authoritative constructions of the ordinance,
including its own implementation and interpretation of it. See
Ward v.
Rock Against Racism, 491 U. S. 781, 795796
(1989);
Lakewood v.
Plain Dealer Publishing Co., 486
U. S. 750, 770, n. 11 (1988);
Gooding v.
Wilson,
405 U. S. 518,
524-528 (1972). In the present litigation, the county has made
clear how it interprets and implements the ordinance. The ordinance
can apply to any activity on public propertyfrom parades, to street
corner speeches, to bike races-and the fee assessed may reflect the
county's police and administrative costs. Whether or not, in any
given instance, the fee would include any or all of the county's
administrative and security expenses is decided by the county
administrator.9
9 In pertinent part, the ordinance, as amended, states that the
administrator
"shall adjust the amount to be paid in order
to meet the expense incident to the administration of the Ordinance
and to the maintenance of public order." § 3(6) (emphasis added),
App. to Pet. for Cert. 119. This could suggest that the
administrator has no authority to reduce or waive these expenses.
It has not been so understood, however, by the county. See 934 F.
2d, at 1488, n. 12 (opinion concurring in part and dissenting in
part). In its February 23, 1987, amendments to the ordinance, the
board of commissioners changed the permit form from "Have you paid
the application fee?" to "Have you paid
any
application fee?," see App. to
132
In this case, according to testimony at the District Court
hearing, the administrator based the fee on his own judgment of
what would be reasonable. Although the county paid for clerical
support and staff as an "expense incident to the administration" of
the permit, the administrator testified that he chose in this
instance not to include that expense in the fee. The administrator
also attested that he had deliberately kept the fee low by
undervaluing the cost of the time he spent processing the
application. Even if he had spent more time on the project, he
claimed, he would not have charged more. He further testified that,
in this instance, he chose not to include any charge for expected
security expense. Tr. 135-139.
The administrator also explained that the county had imposed a
fee pursuant to a permit on two prior occasions. The year before,
the administrator had assessed a fee of $100 for a permit for the
Movement. The administrator testified that he charged the same fee
the following year (the year in question here), although he did not
state that the Movement was seeking the same use of county property
or that it required the same amount of administrative time to
process.
Id., at 138. The administrator also once charged
bike-race organizers $25 to hold a race on county roads, but he did
not explain why processing a bike-race permit demanded less
administrative time than processing a parade permit or why he had
chosen to assess $25 in that instance.
Id., at 143-144. At
oral argument in this Court, counsel for Forsyth County stated that
the administrator had levied a $5 fee on the Girl Scouts for an
activity on county property. Tr. of Oral Arg. 26. Finally, the
administrator testified that in other cases the county required
neither a permit nor a fee for activities in other county
facilities or on county land. Tr. 146.
Based on the county's implementation and construction of the
ordinance, it simply cannot be said that there are any
Pet. for Cert. 115 (emphasis added), thus acknowledging the
administrator's authority to charge no fee.
133
"narrowly drawn, reasonable and definite standards,"
Niemotko, 340 U. S., at 271, guiding the hand of the Forsyth
County administrator. The decision how much to charge for police
protection or administrative time-or even whether to charge at
all-is left to the whim of the administrator. There are no
articulated standards either in the ordinance or in the county's
established practice. The administrator is not required to rely on
any objective factors. He need not provide any explanation for his
decision, and that decision is unreviewable. Nothing in the law or
its application prevents the official from encouraging some views
and discouraging others through the arbitrary application of
fees.10 The First Amendment prohibits the vesting of such unbridled
discretion in a government official.ll
B
The Forsyth County ordinance contains more than the possibility
of censorship through uncontrolled discretion. As
10 The District Court's finding that in this instance the
Forsyth County administrator applied legitimate, content-neutral
criteria, even if correct, is irrelevant to this facial challenge.
Facial attacks on the discretion granted a decisionmaker are not
dependent on the facts surrounding any particular permit decision.
See
Lakewood v.
Plain Dealer Publishing Co.,
486 U. S. 750,
770 (1988). "It is not merely the sporadic abuse of power by the
censor but the pervasive threat inherent in its very existence that
constitutes the danger to freedom of discussion."
Thornhill
v.
Alabama, 310
U. S. 88, 97 (1940). Accordingly, the success of a facial
challenge on the grounds that an ordinance delegates overly broad
discretion to the decisionmaker rests not on whether the
administrator has exercised his discretion in a content-based
manner, but whether there is anything in the ordinance preventing
him from doing so.
n Petitioner also claims that
Cox v.
New
Hampshire, 312 U.
S. 569 (1941), excuses the administrator's discretion in
setting the fee. Reliance on
Cox is misplaced. Although the
discretion granted to the administrator under the language in this
ordinance is the same as in the statute at issue in
Cox, the
interpretation and application of that language are different.
Unlike this case, there was in
Cox no testimony or evidence
that the statute granted unfettered discretion to the licensing
authority.
Id., at 576-577.
134
construed by the county, the ordinance often requires that the
fee be based on the content of the speech.
The county envisions that the administrator, in appropriate
instances, will assess a fee to cover "the cost of necessary and
reasonable protection of persons participating in or observing said
... activit[y]." See App. to Pet. for Cert. 100. In order to assess
accurately the cost of security for parade participants, the
administrator" 'must necessarily examine the content of the message
that is conveyed,'"
Arkansas Writers' Project, Inc. v.
Ragland, 481
U. S. 221, 230 (1987), quoting
FCC v.
League of Women
Voters of Cal., 468 U. S. 364, 383 (1984), estimate the
response of others to that content, and judge the number of police
necessary to meet that response. The fee assessed will depend on
the administrator's measure of the amount of hostility likely to be
created by the speech based on its content. Those wishing to
express views unpopular with bottle throwers, for example, may have
to pay more for their permit.
Although petitioner agrees that the cost of policing relates to
content, see Tr. of Oral Arg. 15 and 24, it contends that the
ordinance is content neutral because it is aimed only at a
secondary effect-the cost of maintaining public order. It is clear,
however, that, in this case, it cannot be said that the fee's
justification "'ha[s] nothing to do with content.'"
Ward,
491 U. S., at 792, quoting
Boos v.
Barry, 485 U. S. 312, 320 (1988)
(opinion of O'CONNOR, J.).
The costs to which petitioner refers are those associated with
the public's reaction to the speech. Listeners' reaction to speech
is not a content-neutral basis for regulation. See
id., at
321 (opinion of O'CONNOR, J.);
id., at 334 (opinion of
Brennan, J.);
Hustler Magazine, Inc. v.
Falwell,
485 U. S. 46,
55-56 (1988);
Murdock v.
Pennsylvania, 319 U. S. 105, 116
(1943); cf.
Schneider v.
State (Town of Irvington),
308 U. S. 147,
162 (1939) (fact that city is financially burdened when listeners
throw leaflets on the street does not justify restriction on
distribution of leaflets). Speech cannot be financially
135
burdened, any more than it can be punished or banned, simply
because it might offend a hostile mob.12 See
Gooding v.
Wilson, 405 U.
S. 518 (1972);
Terminiello v.
Chicago, 337 U. S.
1 (1949).
This Court has held time and again: "Regulations which permit
the Government to discriminate on the basis of the content of the
message cannot be tolerated under the First Amendment."
Regan v.
Time, Inc., 468 U. S. 641, 648-649
(1984); Simon &
Schuster, Inc. v.
Member
of N.
Y. State Crime Victims Bd., 502 U. S. 105, 116
(1991);
Arkansas Writers' Project, 481 U. S., at 230. The
county offers only one
12 The dissent prefers a remand because there are no lower court
findings on the question whether the county plans to base parade
fees on hostile crowds. See
post, at 142. We disagree. A
remand is unnecessary because there is no question that petitioner
intends the ordinance to recoup costs that are related to
listeners' reaction to the speech. Petitioner readily admits it did
not charge for police protection for the 4th of July parades,
although they were substantial parades, which required the closing
of streets and drew large crowds. Petitioner imposed a fee only
when it became necessary to provide security for parade
participants from angry crowds opposing their message. Brief for
Petitioner 6. The ordinance itself makes plain that the costs at
issue are those needed for "necessary and reasonable protection of
persons participating in or observing" the speech. See App. to Pet.
for Cert. 100. Repayment for police protection is the "[m]ost
importan[t]" purpose underlying the ordinance. Brief for Petitioner
6-7.
In this Court, petitioner specifically urges reversal because
the lower court has "taken away the right of local government to
obtain reimbursement for administration and
policing costs which
are incurred in protecting those using government property for
expression." Id., at 17 (emphasis added). When directly faced
with the Court of Appeals' concern about "the enhanced cost
associated with policing expressive activity which would generate
potentially violent reactions,"
id., at 36, petitioner
responded not by arguing that it did not intend to charge for
police protection, but that such a charge was permissible because
the ordinance provided a cap. See
id., at 36-37; Tr. of Oral
Arg. 24. At no point, in any level of proceedings, has petitioner
intimated that it did not construe the ordinance consistent with
its language permitting fees to be charged for the cost of police
protection from hostile crowds. We find no disputed interpretation
of the ordinance necessitating a remand.
136
justification for this ordinance: raising revenue for police
services. While this undoubtedly is an important government
responsibility, it does not justify a content-based permit fee. See
id., at 229-231.
Petitioner insists that its ordinance cannot be
unconstitutionally content based because it contains much of the
same language as did the state statute upheld in
Cox v.
New Hampshire, 312 U. S. 569 (1941).
Although the Supreme Court of New Hampshire had interpreted the
statute at issue in
Cox to authorize the municipality to
charge a permit fee for the "maintenance of public order," no fee
was actually assessed. See
id., at 577. Nothing in this
Court's opinion suggests that the statute, as interpreted by the
New Hampshire Supreme Court, called for charging a premium in the
case of a controversial political message delivered before a
hostile audience. In light of the Court's subsequent First
Amendment jurisprudence, we do not read
Cox to permit such a
premium.
C
Petitioner, as well as the Court of Appeals and the District
Court, all rely on the maximum allowable fee as the touchstone of
constitutionality. Petitioner contends that the $1,000 cap on the
fee ensures that the ordinance will not result in content-based
discrimination. The ordinance was found unconstitutional by the
Court of Appeals because the $1,000 cap was not sufficiently low to
be "nominal." Neither the $1,000 cap on the fee charged, nor even
some lower nominal cap, could save the ordinance because in this
context, the level of the fee is irrelevant. A tax based on the
content of speech does not become more constitutional because it is
a small tax.
The lower courts derived their requirement that the permit fee
be "nominal" from a sentence in the opinion in
Murdock v.
Pennsylvania, 319 U. S. 105 (1943). In
Murdock, the Court invalidated a fiat license fee levied on
distributors of religious literature. In distinguishing the case
from
Cox,
137
where the Court upheld a permit fee, the Court stated: "And the
fee is not a nominal one, imposed as a regulatory measure and
calculated to defray the expense of protecting those on the streets
and at home against the abuses of solicitors." 319 U. S., at 116.
This sentence does not mean that an invalid fee can be saved if it
is nominal, or that only nominal charges are constitutionally
permissible. It reflects merely one distinction between the facts
in
Murdock and those in
Cox.
The tax at issue in
Murdock was invalid because it was
unrelated to any legitimate state interest, not because it was of a
particular size. Similarly, the provision of the Forsyth County
ordinance relating to fees is invalid because it unconstitutionally
ties the amount of the fee to the content of the speech and lacks
adequate procedural safeguards; no limit on such a fee can remedy
these constitutional violations.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
CHIEF JUSTICE REHNQUIST, with whom JUSTICE WHITE, JUSTICE
SCALIA, and JUSTICE THOMAS join, dissenting.
We granted certiorari in this case to consider the following
question:
"Whether the provisions of the First Amendment to the United
States Constitution limit the amount of a license fee assessed
pursuant to the provisions of a county parade ordinance to a
nominal sum or whether the amount of the license fee may take into
account the actual expense incident to the administration of the
ordinance and the maintenance of public order in the matter
licensed, up to the sum of $1,000.00 per day of the activity." Pet.
for Cert. i.
The Court's discussion of this question is limited to an
ambiguous and noncommittal paragraph toward the very end of the
opinion.
Supra this page. The rest of the opinion
138
takes up and decides other perceived unconstitutional defects in
the Forsyth County ordinance. None of these claims were passed upon
by the Court of Appeals; that court decided only that the First
Amendment forbade the charging of more than a nominal fee for a
permit to parade on public streets. Since that was the question
decided by the Court of Appeals below, the question which divides
the Courts of Appeals, and the question presented in the petition
for certiorari, one would have thought that the Court would at
least authoritatively decide, if not limit itself to, that
question.
I
The answer to this question seems to me quite simple, because it
was authoritatively decided by this Court more than half a century
ago in
Cox v.
New Hampshire, 312 U. S. 569 (1941).
There we confronted a state statute which required payment of a
license fee of up to $300 to local governments for the right to
parade in the public streets. The Supreme Court of New Hampshire
had construed the provision as requiring that the amount of the fee
be adjusted based on the size of the parade, as the fee "for a
circus parade or a celebration procession of length, each drawing
crowds of observers, would take into account the greater public
expense of policing the spectacle, compared with the slight expense
of a less expansive and attractive parade or procession."
Id., at 577 (internal quotation marks omitted). Under the
state court's construction, the fee provision was "not a revenue
tax, but one to meet the expense incident to the administration of
the Act and to the maintenance of public order in the matter
licensed."
Ibid. (internal quotation marks omitted). This
Court, in a unanimous opinion by Chief Justice Hughes, upheld the
statute, saying:
"There is nothing contrary to the Constitution in the charge of
a fee limited to the purpose stated. The suggestion that a fiat fee
should have been charged fails to take account of the difficulty of
framing a fair schedule
139
to meet all circumstances, and we perceive no constitutional
ground for denying to local governments that flexibility of
adjustment of fees which in the light of varying conditions would
tend to conserve rather than impair the liberty sought.
"There is no evidence that the statute has been administered
otherwise than in the fair and nondiscriminatory manner which the
state court has construed it to require." Ibid.
Two years later, in
Murdock v.
Pennsylvania,
319 U. S. 105
(1943), this Court confronted a municipal ordinance that required
payment of a flat license fee for the privilege of canvassing
door-to-door to sell one's wares. Pursuant to that ordinance, the
city had levied the flat fee on a group of Jehovah's Witnesses who
sought to distribute religious literature door-to-door for a small
price.
Id., at 106-107. The Court held that the flat license
tax, as applied against the hand distribution of religious tracts,
was unconstitutional on the ground that it was "a flat tax imposed
on the exercise of a privilege granted by the Bill of Rights."
Id., at 113. In making this ruling, the Court distinguished
Cox by stating that "the fee is not a nominal one, imposed
as a regulatory measure and calculated to defray the expense of
protecting those on the streets and at home against the abuses of
solicitors." 319 U. S., at 116. This language, which suggested that
the fee involved in
Cox was only nominal, led the Court of
Appeals for the Eleventh Circuit in the present case to conclude
that a city is prohibited from charging any more than a nominal fee
for a parade permit.
913 F.2d
885, 890891, and n. 6 (1990). But the clear holding of
Cox is to the contrary. In that case, the Court expressly
recognized that the New Hampshire state statute allowed a city to
levy much more than a nominal parade fee, as it stated that the fee
provision "had a permissible range from $300 to a nominal amount."
Cox v.
New Hampshire, supra, at 576. The use of the
word "nominal" in
Murdock was thus unfortunate, as
140
it represented a mistaken characterization of the fee statute in
Cox. But a mistaken allusion in a later case to the facts of
an earlier case does not by itself undermine the holding of the
earlier case. The situations in
Cox and
Murdock were
clearly different; the first involved a sliding fee to account for
administrative and security costs incurred as a result of a parade
on public property, while the second involved a fiat tax on
protected religious expression. I believe that the decision in
Cox squarely controls the disposition of the question
presented in this case, and I therefore would explicitly hold that
the Constitution does not limit a parade license fee to a nominal
amount.
II
Instead of deciding the particular question on which we granted
certiorari, the Court concludes that the county ordinance is
facially unconstitutional because it places too much discretion in
the hands of the county administrator and forces parade
participants to pay for the cost of controlling those who might
oppose their speech.
Ante, at 130-137. But, because the
lower courts did not pass on these issues, the Court is forced to
rely on its own interpretation of the ordinance in making these
rulings. The Court unnecessarily reaches out to interpret the
ordinance on its own at this stage, even though there are no lower
court factual findings on the scope or administration of the
ordinance. Because there are no such factual findings, I would not
decide at this point whether the ordinance fails for lack of
adequate standards to guide discretion or for incorporation of a
"heckler's veto," but would instead remand the case to the lower
courts to initially consider these issues.
The Court first finds fault with the alleged standardless
discretion possessed by the county administrator. The ordinance
provides that the administrator "shall adjust the amount to be paid
in order to meet the expense incident to the administration of the
Ordinance and to the maintenance of public order in the matter
licensed." App. to Pet. for
141
Cert. 119. In this regard, the ordinance clearly parallels the
construction of the statute we upheld in
Cox. 312 U. S., at
577 (statute did not impose "a revenue tax, but one to meet the
expense incident to the administration of the Act and to the
maintenance of public order in the matter licensed" (internal
quotation marks omitted)). The Court worries, however, about the
possibility that the administrator has the discretion to set fees
based upon his approval of the message sought to be conveyed, and
concludes that "the county's authoritative constructio[n] of the
ordinance" allows for such a possibility.
Ante, at 131. The
Court apparently envisions a situation where the administrator
would impose a $1,000 parade fee on a group whose message he
opposed, but would waive the fee entirely for a similarly situated
group with whom he agreed. But the county has never rendered any
"authoritative construction" indicating that officials have
"unbridled discretion,"
ante, at 133, in setting parade
fees, nor has any lower court so found. In making its own factual
finding that the ordinance does allow for standardless fee setting,
this Court simply cites four situations in which the administrator
set permit fees-two fees of $100, one of $25, and one of $5.
Ante, at 132. On the basis of this evidence, the Court finds
that the administrator has unbridled discretion to set permit fees.
The mere fact that the permit fees differed in amount does not
invalidate the ordinance, however, as our decision in
Cox
clearly allows a governmental entity to adopt an adjustable permit
fee scheme. See
Cox v.
New Hampshire, supra, at 577
("[W]e perceive no constitutional ground for denying to local
governments thee] flexibility of adjustment of fees"). It is true
that the Constitution does not permit a system in which the county
administrator may vary fees at his pleasure, but there has been no
lower court finding that that is what this fledgling ordinance
creates. And, given the opportunity, the District Court might find
that the county has a policy that precludes the administrator from
arbitrarily imposing fees. Of course, the District
142
Court might find that the administrator does possess too much
discretion. In either case, I believe findings by the District
Court on the issue would be preferable.
The Court relies on
Ward v.
Rock Against Racism,
491 U. S. 781,
795-796 (1989), for the proposition that the county's
interpretation of the ordinance must be considered. In that case,
however, we relied upon District Court findings concerning New York
City's limiting interpretation of a noise regulation.
Id.,
at 795. I would prefer to remand this case so that the Court might
rely on such express findings here as well.
The Court's second reason for invalidating the ordinance is its
belief that any fee imposed will be based in part on the cost of
security necessary to control those who
oppose the message
endorsed by those marching in a parade. Assuming 100 people march
in a parade and 10,000 line the route in protest, for example, the
Court worries that, under this ordinance, the county will charge a
premium to control the hostile crowd of 10,000, resulting in the
kind of "heckler's veto" we have previously condemned.
Ante,
at 133-136. But there have been no lower court findings on the
question whether or not the county plans to base parade fees on
anticipated hostile crowds. It has not done so in any of the
instances where it has so far imposed fees.
Ante, at 132.
And it most certainly did not do so in this case. The District
Court below noted that:
"[T]he instant ordinance alternatively permits fees to be
assessed based upon 'the expense incident to ... the maintenance of
public order.' If the county had applied this portion of the
statute, the phrase might run afoul of ... constitutional concerns
....
"However, in the instant case, plaintiff did not base their
[sic] argument upon this phrase, but contended that the mere
fact that a $100 fee was imposed is unconstitutional, especially in
light of the organization's financial circumstances. The
evidence was clear that the
143
fee was based solely upon the costs of processing the
application and plaintiff produced no evidence to the contrary."
App. to Pet. for Cert. 14 (emphasis added).
The Court's analysis on this issue rests on an assumption that
the county will interpret the phrase "maintenance of public order"
to support the imposition of fees based on opposition crowds. There
is nothing in the record to support this assumption, however, and I
would remand for a hearing on this question.
For the foregoing reasons, I dissent.
Comments
Be the first to comment
Leave a Comment