Complete Home & Office Legal Guide/Complete Home and Office Legal Guide (Chestnut) (1993).ISO/stat/ussct/forsyth.asc

Text File | 1993-08-01 | 46KB | 849 lines

/* An important case regarding the imposition of fees in order to
use public cases. As usual, an organization which is not popular
finds government officials trying to stymie their efforts to
march or speak (no matter how offensive the speech may be to the
majority.) */

 NOTE: Where it is feasible, a syllabus (headnote) will be
released, as is being done in connection with this case, at the
time the opinion is issued.  The syllabus constitutes no part of
Decisions for the convenience of the reader.  See United States

SUPREME COURT OF THE UNITED STATES


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.6-14.

(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. 6-7.

(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 adminstrator'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. 7-10.

(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. 11-13.

(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. 13-14. 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.

 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.

/* From this record, it is impossible to tell what the actual
motivation for this law is. The act is already problematical. The
cynical might find it an effort to discourage the return of civil
rights protesters. Unfortunately, that also results in the
objection to the fee by the anti-civil rights protesters.
*/

 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 t