Forsyth County, Georgia v. Nationalist Movement

• Decision Date: 19 June 1992
• Docket Number: No. 91-538,91-538
• Parties: FORSYTH COUNTY, GEORGIA, Petitioner, v. The NATIONALIST MOVEMENT
• Court: U.S. Supreme Court

505 U.S. 123

112 S.Ct. 2395

120 L.Ed.2d 101

FORSYTH COUNTY, GEORGIA, Petitioner,

v The NATIONALIST MOVEMENT.

No. 91-538.

Argued March 31, 1992.

Decided June 19, 1992.

Syllabus

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, 85 S.Ct. 734, 737, 13 L.Ed.2d 649, and is not based on the content of the message, see United States v. Grace, 461 U.S. 171, 177, 103 S.Ct. 1702, 1706, 75 L.Ed.2d 736. 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, 71 S.Ct. 325, 327, 95 L.Ed. 267 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, 61 S.Ct. 762, 85 L.Ed. 1049, 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, 63 S.Ct. 870, 876, 87 L.Ed. 1292 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.

Robert S. Stubbs, III, Cumming, Ga., for petitioner.

Richard Barrett, Learned, Miss., 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 had a troubled racial history. In 1912, in one month, its entire African-American population, over 1000 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 January 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 counter-demonstrators lined the parade route, shouting racial slurs. Eventually, the counter-demonstrators, 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 1960s. 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 counter-demonstrators on the parade route were contained by more than 3,000 state and local police and National Guardsmen. Although there was sporadic rock-throwing and 60 counter-demonstrators 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; L.A. 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 $1000.00 for each day such parade, procession, or open air public meeting shall take place." Id., at 119.⁵ In addition, the county 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 (CA11 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 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 (CA11 1985), cert. denied, 475 U.S. 1120, 106 S.Ct. 1637, 90 L.Ed.2d 183 (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 quotations omitted). The court determined that a permit fee of up to $1000 a day exceeded this constitutional threshold. Ibid. One judge concurred specially, calling for Central Florida to be overruled. Id., at 896.

The Court of...