Facts
- Forsyth County, Georgia experienced large and costly public demonstrations and counter-demonstrations in 1987, requiring extensive police and National Guard presence.
- In response, the county enacted Ordinance 34 requiring permits for parades, assemblies, demonstrations, and related uses of public property and roads.
- The ordinance authorized a permit fee up to $1,000 per day and allowed the county administrator to adjust the fee to cover administrative expenses and the cost of maintaining public order.
- In 1989, The Nationalist Movement sought a permit to hold a rally at the county courthouse opposing a federal holiday honoring Martin Luther King Jr.
- The county administrator assessed a $100 fee largely reflecting administrative costs; the Movement refused to pay, canceled the event, and sued under the First and Fourteenth Amendments.
Issues
- Whether a permit-fee ordinance for expressive activity in public forums is unconstitutional where it grants an administrator broad discretion to vary fees based on estimated public-order costs.
- Whether tying permit fees to anticipated audience reaction to a speaker’s message imposes a content-based burden on speech in violation of the First Amendment.
Decision
- The Supreme Court affirmed the judgment invalidating the ordinance, holding Ordinance 34 facially unconstitutional under the First and Fourteenth Amendments.
- The Court held the ordinance lacked narrowly drawn, reasonable, and definite standards to guide the administrator’s fee-setting decisions, creating an impermissible prior restraint.
- The Court held the fee scheme was content based because estimating security needs required officials to examine the message and predict public response.
- The Court rejected the view that the ordinance could be saved by the $1,000 cap (or any lower cap), because the constitutional defect was the structure of discretion and content sensitivity.
- Chief Justice Rehnquist dissented, viewing the ordinance as a permissible time, place, and manner regulation and a reasonable allocation of extraordinary policing costs.
Legal Principles
- Government may require permits for marches and rallies in public forums to manage competing uses, but licensing schemes must not grant overly broad discretion and must not be content based.
- A permitting system must contain narrowly drawn, reasonable, and definite standards that constrain official decisionmaking and limit arbitrary application.
- Fees for expressive activity cannot vary based on the content of speech or the expected reaction of listeners; audience hostility is not a content-neutral basis for regulation.
- Financial burdens that rise with anticipated controversy function like a “heckler’s veto” by penalizing speech because it may provoke opposition.
Conclusion
The Court invalidated Forsyth County’s variable permit-fee ordinance because it vested unbounded discretion in a licensing official and required fee determinations based on message content and predicted audience reaction, thereby imposing a content-based prior restraint on speech in traditional public forums.