Forsyth County v. Nationalist Movement - 505 U.S. 123 (1992)
OCTOBER TERM, 1991
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. Mter 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
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.
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.
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.