481 F.3d 178 (3rd Cir. 2007), 06-2184, Nationalist Movement v. City of York

Docket Nº:06-2184.
Citation:481 F.3d 178
Case Date:March 21, 2007
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit

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481 F.3d 178 (3rd Cir. 2007)




No. 06-2184.

United States Court of Appeals, Third Circuit.

March 21, 2007

Argued Jan. 30, 2007.

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Richard Barrett, Esq., (Argued), Learned, MS, Counsel for Appellant.

James D. Young, Esq., (Argued), Lavery, Faherty, Young & Patterson, Harrisburg, PA, Donald B. Hoyt, Esq., Blakely, Yost, Bupp & Rausch, York, PA, Counsel for Appellee.

Before BARRY and ROTH, Circuit Judges, and DEBEVOISE, [*] District Judge.


BARRY, Circuit Judge.

Appellant, The Nationalist Movement, challenges the constitutionality of section 741.03 of the Codified Ordinances of the City of York ("section 741.03" or "the Ordinance"), which requires, in certain circumstances, that prospective users of public land within the City file an application, pay certain fees, and agree to a variety of conditions before permission for the use of that land is granted. The District Court ruled that two provisions of the Ordinance were unconstitutional, a ruling the City has not appealed, but the Court upheld the remainder of the Ordinance and granted summary judgment for the City. We will affirm in part and reverse in part.


As relevant here, section 741.03, the Public Meetings provision, prohibits persons from "[c]onduct[ing] a public assembly, parade, picnic, or other event involving more than twenty-five individuals" on public land without first obtaining a permit. § 741.03(c)(1)(A). In order to obtain a permit, an applicant must file a written application and tender an application fee, § 741.03(d), which is $50 for city residents and $100 for non-residents. In addition, an applicant must sign an agreement "in which the applicant shall promise and covenant to bear all costs of policing, cleaning up and restoring the park; ... to reimburse the City for any such costs incurred by the City; and to indemnify the City and hold the City harmless from any liability to any person resulting from any damage or injury occurring in connection with the permitted event proximately caused by the action of the permittee" or its agents, § 741.03(d)(6), and pay "a user fee," § 741.03(d)(8). The Ordinance provides that the requirements "for a user fee, security deposits, or certificate of insurance shall be waived ... if the activity is protected by the First Amendment of the United States Constitution and the requirement would be so financially burdensome that it would preclude the applicant from using Park property for the proposed activity." § 741.03(f)(3). 1 Completed applications will "be processed in order of receipt," § 741.03(e)(1), and grounds for denial, § 741.03(e)(5), deadlines, and procedures for review and appeal, § 741.03(f), are set forth.

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On June 14, 2002, The Nationalist Movement submitted an application to hold Henry Schaad Day 2 and a King Holiday Protest at York City Hall on January 20, 2003. On that application, it objected to the various fees as a "violation of the First Amendment," but did not indicate that it was financially unable to pay the fees and did not request a waiver form. The City denied the application as incomplete and a series of letters then passed between the parties. Following the final rejection of the application, The Nationalist Movement first requested a waiver form and, on October 25, 2002, filed this action in the District Court.

The City moved to dismiss and The Nationalist Movement moved for a temporary restraining order and a preliminary and permanent injunction. Prior to the hearing on the injunction, the parties agreed that The Nationalist Movement could hold its event on January 20, 2003 without obtaining a permit or paying more than a $1 nominal fee. The City did not concede any defects in the Ordinance, but, rather, represented to the Court that the Ordinance did not apply because the event would have less than twenty-five participants. The event took place without incident. The Nationalist Movement subsequently filed applications to hold events in 2004 and 2005, applications which have been held in abeyance pending resolution of this case.

On May 5, 2003, the City moved to dismiss based on the "settlement agreement" which had been reached with The Nationalist Movement. That motion was denied. The parties then moved for summary judgment. By Memorandum and Order dated March 24, 2006, 425 F.Supp.2d 574, the District Court ruled that the requirements that a security deposit be paid and a certificate of insurance obtained before a permit could issue violated the First Amendment of the Constitution because they essentially allowed the City to charge higher fees based on the content of the applicant's message. The Court upheld all of the other challenged provisions as constitutional and granted summary judgment for the City. In addition, the Court rejected The Nationalist Movement's as-applied challenge and equal protection arguments. Resolution of The Nationalist Movement's request for attorneys' fees was stayed pending this appeal.

We have jurisdiction over The Nationalist Movement's appeal pursuant to 28 U.S.C. § 1291. We exercise plenary review of a district court's order granting summary judgment. Reese Bros., Inc. v. United States, 447 F.3d 229, 232 (3d Cir.2006).


We decide, first, whether The Nationalist Movement can bring a facial challenge to the Ordinance. Although the 2003 Henry Schaad Day went forward as planned, the Supreme Court has long held that statutes which threaten to chill First Amendment speech may be facially challenged without the necessity of the speaker being denied, or even having applied for, a permit. City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 755-59, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969). As the Court explained in Plain Dealer Publishing Co., "a facial challenge lies whenever a licensing law gives a government official or agency substantial power

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to discriminate based on the content or viewpoint of speech by suppressing disfavored speech or disliked speakers." Plain Dealer Publ'g Co., 486 U.S. at 759, 108 S.Ct. 2138. Because we agree that the Ordinance chills speech on the basis of its content, The Nationalist Movement has standing to maintain its facial challenge. 3

We turn, then, to the constitutionality of the Ordinance. In Forsyth County v. Nationalist Movement, 505 U.S. 123, 130, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992), the Supreme Court held that an "ordinance requiring a permit and a fee before authorizing public speaking, parades, or assemblies" in traditional public fora "is a prior restraint on speech" and therefore subject to a heavy presumption against its validity. Because the government does, however, have an interest in regulating competing uses of public space, such a prior restraint will be found constitutional where it does "not delegate overly broad licensing discretion to a government official" and is a valid time, place, and manner restriction, i.e., it leaves open ample alternatives for communication and is content-neutral and narrowly tailored to serve a significant governmental interest. Id.

In Forsyth County, the Court was faced with a statute which allowed the levying of a permit fee of up to $1000 per day which was designed to defray administrative costs and the cost of necessary law enforcement at the planned event. The Court found such a variable fee to be violative of the First Amendment for a number of reasons. First, there were no standards directing the setting of the fee, such that it was "left to the whim of the administrator." Id. at 133, 112 S.Ct. 2395. "The First Amendment prohibits the vesting of such unbridled discretion in a government official" because such power could be easily used in a political fashion. Id. Second, and alternatively, the fee was, in part, based on the content of the speech.

Significantly, however, the Court did not rule that application or permit fees are unconstitutional. In fact, the Court cited its earlier decision in Cox v. New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), in which it stated that "[t]here is nothing contrary to the Constitution in the charge of a fee limited" to "meet the expense incident to the administration of the Act and to the maintenance of public order in the matter licensed." Cox, 312 U.S. at 577, 61 S.Ct. 762.

There is no discretionary component involved in setting the application fee here. The fee is $50 for residents and $100 for non-residents and, absent waiver, is applied across the board to all prospective users of "Park property." This fee is nominal, is not content based, and is narrowly tailored to allow the city to recoup the cost of processing the application. Under Forsyth County, there is nothing about the application fee that is violative of the First Amendment. 4

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Furthermore, at oral argument the City conceded that it reads the provision in the Ordinance waiving a user fee, security deposit, or certificate of insurance to apply as well to the application fee, despite the seemingly contrary language in the waiver provision itself. 5 See Forsyth County, 505 U.S. at 131, 112 S.Ct. 2395 (stating that courts must consider the government's "authoritative constructions of the ordinance, including its own implementation and interpretation of it"). As such, as construed by the City, the application fee does not unconstitutionally burden the free speech rights of those speakers too indigent to afford its payment. See Cent. Fla. Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1523-24 (11th Cir.1985) (discussing Lubin v. Panish, 415 U.S. 709, 94 S.Ct. 1315, 39 L.Ed.2d 702 (1974)).

In addition to the payment of an application fee, applicants must sign an agreement "in...

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