United States Court of Appeals
For the First Circuit
No. 06-1177
TIMOTHY SULLIVAN and LAWRENCE E. DANSINGER,
Plaintiffs, Appellees,
v.
CITY OF AUGUSTA,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. John A. Woodcock, Jr., U.S. District Judge]
Before
Boudin, Chief Judge,
Campbell, Senior Circuit Judge,
and Lipez, Circuit Judge.
Stephen E.F. Langsdorf with whom Sigmund D. Schutz and Preti,
Flaherty, Beliveau & Pachios, LLP were on brief for appellant.
David G. Webbert with whom Johnson & Webbert, LLP was on brief
for appellees.
December 14, 2007
CAMPBELL, Senior Circuit Judge. Defendant-appellant City
of Augusta, Maine ("Augusta" or "the City") appeals from the
judgment entered in favor of plaintiff-appellees Timothy Sullivan
and Lawrence E. Dansinger in the United States District Court for
the District of Maine. The court found that several provisions of
the City's parade ordinance and of its mass outdoor gathering
ordinance (the MOGO) violated the First Amendment.
On appeal, the City challenges the standing of the
plaintiffs and the ripeness of their claims, especially their right
to protest the MOGO. The City also challenges the district court's
rulings that provisions of both ordinances violate the Federal
Constitution. We conclude the plaintiffs did not have standing to
sue regarding the MOGO's alleged defects, hence we vacate all the
rulings of the district court regarding the constitutionality of
that ordinance's provisions. We affirm the court's rulings that
the advance notice and in-person meeting requirements of the parade
ordinance are constitutionally defective and affirm the district
court's ruling that the $478.55 overcharge to Sullivan was
unconstitutional. However, we reverse its rulings that the fee
provision grants excessive discretion to the police and that the
parade permit fee of $100 and associated charges for police traffic
control are unconstitutional insofar as indigents must pay them
without being given an opportunity to seek and secure a waiver on
account of their indigency.
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Background
On February 9, 2004, acting on behalf of a group known as
the March for Truth Coalition, which advocates the "worldwide end
of war and empire-building" and major social and economic reforms,
Sullivan applied to Augusta's City Police Department for a permit
under the parade ordinance, infra, proposing three routes over
Augusta's streets for a protest march. The march would be held on
Saturday, March 20, 2004, between 12:30-2:00 p.m. See Sullivan v.
City of Augusta, 310 F. Supp. 2d 348, 351 (D. Me. 2004) ("Sullivan
I"). The Police Department indicated it would grant the permit,
and, in addition to the $100 base fee, charged Sullivan and the
Coalition, as provided for in the ordinance, for what the Police
Department estimated would be the cost of the extra police officers
and police vehicles needed to control and divert traffic during the
event. The Police Department also required the Coalition to
provide a bond or other insurance.
Claiming the assessed estimate of traffic control costs
and the bond were unconstitutional burdens on the exercise of his
rights under the First Amendment, Sullivan moved on March 15, 2004
in the district court for a temporary restraining order ("TRO")
enjoining the City from imposing these conditions. The same day,
Sullivan filed a complaint in the district court challenging the
constitutionality of certain provisions not only of the City's
parade ordinance, under which he had sought a permit, but also of
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the City's separate MOGO, under which he had not sought a permit.
The district court granted the TRO in part, finding that Sullivan
had standing to challenge the parade ordinance and enjoining
Augusta from enforcing the bond requirement. The court also
considered "the requirements of the application fee and costs of
retaining law enforcement services" and concluded that "these
portions of the ordinance are constitutional as applied." Sullivan
I, 310 F. Supp. 2d at 354-55. The City subsequently amended the
parade ordinance to delete the bond requirement, but left intact
its other provisions. Thereafter, the Coalition paid the required
amounts to the City, the parade permit was issued, and the march
took place as scheduled on March 20, 2004. Sullivan did not seek,
nor is there evidence he ever discussed with the Police, and the
City did not request, that he obtain a second permit, under the
MOGO, for the March 20, 2004 event.
Sullivan then amended his complaint on September 28,
2004, adding a second plaintiff, Dansinger. Dansinger had applied
for a parade permit in August 2004 for a march he wished to hold in
October of that same year. After the City Police Department
responded to his application with a letter requiring him to pay a
fee and costs of almost $2,000, Dansinger responded that he was
unable to pay and sought, without response from the City, a waiver
of the total amount of fee and costs. No permit was issued, and
the proposed October march did not take place.
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Discovery followed the filing of the amended complaint,
and the parties submitted the case to the district court on a
stipulated record and filed cross motions for judgment on
liability. A stipulated record "allows the judge to decide any
significant issues of material fact that he discovers." Boston
Five Cents Sav. Bank v. Sec'y of Dep't of Housing & Urban Dev., 768
F.2d 5, 11-12 (1st Cir. 1986). Here, the agreed-upon record
included depositions of Sullivan, Dansinger, Joe Bandy (the
plaintiffs' expert witness), and Augusta Deputy Police Chief Major
Gregoire ("Gregoire"), and affidavits from Gregoire. Following
oral argument, the district court issued a decision holding that
the plaintiffs had standing to challenge both ordinances, that
their claims were ripe, that various provisions both of the parade
ordinance and of the MOGO violated the First Amendment of the
Federal Constitution, and that there was no need for the court to
abstain from ruling on the challenged ordinances. Sullivan v. City
of Augusta, 406 F. Supp. 2d 92 (D. Me. 2005) ("Sullivan II"). The
City filed this appeal from the district court's judgment entered
in accordance with its decision.
The district court in its decision also found in the
City's favor on plaintiffs' claim that it was violative of the
Federal Constitution for the City to waive the parade permit fee
for an event honoring law enforcement sponsored by the Maine Chiefs
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of Police Association, of which the City is a member. Plaintiffs
did not cross-appeal from that unfavorable finding.
Facts
The following facts are taken from the district court's
findings based on the stipulated record. See Sullivan II, 406
F. Supp. 2d at 95-99. As noted, Sullivan represented the March for
Truth Coalition, which wanted to parade on the streets of Augusta
to advocate for a variety of causes, including opposition to the
Iraq war. The plaintiffs' challenges to the parade ordinance and
the MOGO addressed several elements of both ordinances.
A. Parade Ordinance Fee
Portions of the Parade Ordinance, § 13-5, provide as
follows:
(a) No less than thirty (30) days prior to an intended
parade, march or other use of public ways within the
city, a permit must be applied therefor to the City
Police Chief or his designee. The City Manager may allow
a shorter time frame for good cause shown.
. . .
(c) Within ten (10) days of applying for the permit, as
a condition to its issuance, the applicant must meet with
the Police Chief to discuss and attempt to agree on the
details of the route and other logistics.
(d) The Police chief may deny the permit or alter the
route for traffic or safety reasons and impose reasonable
conditions including, but not limited to, time limits,
requirement to keep moving and on route, no amplification
or sound truck, no explosives, fireworks, or other
artificial noise.
(e) The cost of the permit shall be one hundred dollars
($100.00), plus the costs of traffic control per city
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collective bargaining agreement and clean up costs, as
estimated by the Police Department. The permit fee will
not include the cost of police protection for public
safety. The one hundred dollar ($100.00) fee is payable
at the time the application is submitted and the balance
at the time of its issuance. The City Council may modify
this fee from time to time by Order.
Augusta, Me. Code § 13-5 (1991). "If the permit is denied or
modified, the applicant may appeal in writing within five (5) days
to the City Clerk's office for determination by the City Council."
Id. at § 13-5(g).
B. MOGO
Section 3-116 of the MOGO provides:
(a) It is recognized that a mass outdoor gathering
attended by two hundred (200) or more persons may create
a hazard to public health and safety. Accordingly, it is
deemed to be appropriate and in the interest of the
public welfare to regulate the conduct of such gatherings
in order to protect the public health and safety.
(b) No person shall sponsor, promote or conduct a mass
outdoor gathering with the intent to attract or the
understanding that the gathering may attract two hundred
(200) or more persons until a permit has been obtained
therefor from the Augusta Police Chief or his designee.
The application for a permit must be submitted no less
than thirty (30) days prior to the mass gathering, unless
the City Manager allows a shorter time frame for good
cause shown.
Augusta, Me. Code § 3-116 (1991).
Section 3-117 states:
The Police Chief shall grant a permit to sponsor, promote
or conduct a mass outdoor gathering to be attended by two
hundred (200) or more persons upon written application
therefor unless it appears to the Police Chief within a
reasonable certainty that such gathering will
unreasonably endanger the public health or public safety.
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Id. at § 3-117.
Section 3-118 states:
Prior to the issuance of a permit under this article, the
applicant shall furnish the Police Chief with adequate
proof that the following will be available at the
gathering:
(1) The furnishing of adequate and satisfactory water
supply and sewer facilities;
(2) Adequate refuse storage and disposal facilities,
adequate medical facilities;
(3) Adequate fire and police protection; and
(4) Such other matters as may be appropriate for security
of health and safety.
The Police Chief may review such plans, specifications
and reports as is deemed necessary for a proper review of
the proposed mass gathering.
Id. at § 3-118. The permit fee is $100.00, plus the "cost
estimated by the City for cleanup and traffic control." Id. at §
3-120. The MOGO provisions do not apply "to athletic events
conducted by the Board of Education, Little League or other
organizations, provided alcohol is not available." Id. at § 3-122.
C. Plaintiffs' Applications
i. Sullivan's February 9, 2004 Application
Of the three proposed parade routes in Sullivan's
February 2004 parade permit application, Augusta Deputy Police
Chief Major Gregoire, the officer delegated responsibility, under
the Police Chief's oversight, to handle Sullivan's permit
application, determined the first would require twelve officers and
two police vehicles for traffic control, costing $2,077.44 and the
second, ten officers and two police vehicles, costing $1,761.20.
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In later discussions, Gregoire approved a third route, costing, he
said, $1,543.08. Sullivan II, 406 F. Supp. 2d at 97. To calculate
these costs, Gregoire said he considered only the following
factors: "the route to be taken, the duration of the route, the
estimated number of people who will attend, whether marchers intend
to close the entire road or only one direction of travel, and
whether there are any other events or special circumstances within
the City which could affect traffic." Gregoire testified that he
based his assessment of traffic control needs only on factors
"completely unrelated to the message to be communicated by
marchers." Sullivan and his March for Truth Coalition did not
themselves have the money to pay the permit fee, but they borrowed
the necessary funds from another organization. As already noted,
the fee was paid, the parade permit was issued, and the march went
on as planned on March 20, 2004. At no time did the City intimate
that Sullivan or the Coalition needed a second permit, under the
MOGO, in order to conduct a lawful march.
ii. Dansinger's August 23, 2004 Application
On August 23, 2004, Dansinger applied for a parade permit
to hold a peace march/rally on October 16, 2004, in conjunction
with the Million Worker March scheduled in Washington, D.C., the
next day. Dansinger had agreed he would apply for the permit and
assumed Sullivan and Tony Aman, another protestor, "would be doing
other aspects of the organizing." The Augusta Police Department
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responded to Dansinger's application by letter dated September 15,
2004, advising him that, in addition to the initial application fee
of $100, approval of the parade permit was conditioned on payment
of $1,979.32. Dansinger responded with a September 29, 2004 letter
from his attorney, explaining that the permit fee of almost $2,000
created a substantial financial hardship for him and requesting the
fee be waived because of his limited financial means. This letter
explained that Dansinger's annual income was $8,400, asserted that
he could not afford to pay the additional estimated permit fee, and
requested that Augusta establish an inability to pay exception for
the traffic control fees charged for free speech activities. In
spite of Dansinger's assertions of financial hardship, the Augusta
Police Department did not offer to waive the fee or any part
thereof, Dansinger did not pay the requested amount, no permit was
issued, and the proposed October 16 march was not held.
D. District Court Decision
The district court found that various sections of the
City's parade ordinance and MOGO, on facial challenge, violated the
First Amendment of the Federal Constitution. The court determined
that Section 13-5(e) of the parade ordinance providing that the
cost of the permit will be $100, plus the costs of traffic control
per city collective bargaining agreement and clean-up costs, as
estimated by the Police Department, was unconstitutional because it
vested too much standardless discretion in the police. The court
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held unconstitutional Section 13-5(a) of the parade ordinance and
Section 3-116(a) of the MOGO to the extent that each requires
thirty days' prior notice of a parade or MOGO application, unless
the City Manager allows a shorter time frame for good cause shown.
The court also held unconstitutional Section 13-5(c) of the parade
ordinance to the extent it requires, as a condition of its
issuance, a meeting between the applicant and the police chief
within ten days of applying for the permit to discuss and attempt
to agree on the details of the route and other logistics of the
parade. The court held unconstitutional Section 13-5(e) of the
parade ordinance and Section 3-120 of the MOGO to the extent they
contain no avenue for indigent permit seekers to obtain waivers of
the fees specified therein. The court also held unconstitutional
Section 3-122 of the MOGO, which exempts from permit requirements
"athletic events" conducted by the Board of Education, Little
League or other organizations, provided alcohol is not available.
Finally, the court noted in its opinion that there was no
need for it to abstain from deciding these constitutional questions
just because the plaintiffs had not appealed from the denial or
modification of any of their permit requests to the City Council,
as permitted by the parade ordinance.
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Discussion
A. Standard of Review
Our review here of the controverted matters is plenary.
Legal questions of standing and ripeness are obvious candidates for
de novo review, and "where the trial court is called upon to
resolve a number of mixed law/fact matters which implicate core
First Amendment concerns, the review . . . is plenary so that the
court may reduce the likelihood of a 'forbidden intrusion on the
field of free expression.'" AIDS Action Comm. v. MBTA, 42 F.3d 1,
7 (1st Cir. 1994) (quoting New York Times v. Sullivan, 376 U.S.
254, 285 (1964)). Plenary review is called for "simply because the
reaches of the First Amendment are ultimately defined by the facts
it is held to embrace, and we must thus decide for ourselves
whether a given course of conduct falls on the near or far side of
the line of constitutional protection." Hurley v. Irish-American
Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 567
(1995).1
B. Standing and Ripeness
i. Standing to Challenge MOGO
The City of Augusta argues on appeal, as it did below,
that the plaintiffs lacked standing to challenge any part of the
1
We find no merit in plaintiffs' contention that plenary
review is reserved only for district court decisions denying First
Amendment challenges, while decisions (as here) providing support
for First Amendment claims are entitled only to more restricted
review.
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MOGO. We agree. For standing to challenge the constitutionality
of a particular municipal ordinance such as the parade ordinance or
the MOGO, plaintiffs had to show an objectively reasonable
possibility that the ordinance would be applied to their own
activities. See Osediacz v. City of Cranston, 414 F.3d 136, 143
(1st Cir. 2005). In the case of the parade ordinance, under which
Sullivan sought and actually received a parade permit and Dansinger
sought, but did not obtain, a parade permit, plaintiffs have made
a sufficient showing. But we find no similar showing sufficient to
establish standing to challenge the MOGO, the City's mass outdoor
gathering ordinance. Plaintiffs did not acquire or seek a MOGO
permit. They did not allege, and there was no evidence in the
record that anyone connected with the City ever indicated to
plaintiffs, that they would be required to obtain a permit under
the MOGO as a prerequisite to conducting their proposed street
marches, nor was there evidence or even allegations that, in
addition to a parade permit, plaintiffs needed, or reasonably
believed they needed, a permit under the MOGO in order to conduct
such activities in conformity with existing municipal policy and
law.
As the district court recognized, the relaxation in First
Amendment cases of certain prudential standing requirements does
not mean that plaintiffs can dispense with the need to meet core
Article III standing principles. Osediacz, 414 F.3d at 141; see
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Sec'y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947,
956-57 (1984) ("[I]n the area of freedom of expression, an
overbroad regulation may be subject to facial review and
invalidation, even though its application in the case under
consideration may be constitutionally unobjectionable," but Munson
still must "satis[fy] the requirement of 'injury-in-fact' and
whether it can be expected satisfactorily to frame the issues in
this case [i.e., its case must be 'ripe'].").
"Injury-in-fact" has been described by the Court as "an
invasion of a legally protected interest which is (a) concrete and
particularized . . . and (b) 'actual or imminent, not conjectural
or hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992) (citations omitted). Plaintiffs have failed to carry
their burden of showing that they have sustained any injury-in-fact
on account of the MOGO. Without suffering such an injury, they
lack standing to challenge the constitutionality of various
provisions of that ordinance.
The district court recognized that plaintiffs were
required to show injury-in-fact relative to the MOGO, and that to
establish such injury in the present circumstances, they must show
an objectively reasonable possibility they would need a permit
under that ordinance in order to engage lawfully in their intended
street marches. See Osediacz, 414 F.3d at 143. The court believed
that such a showing had been made here. It construed the language
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of the MOGO as overlapping with that of the parade ordinance. It
believed that marches such as plaintiffs sponsored or proposed,
while covered by the parade ordinance, could also be considered to
be mass outdoor gatherings if held with the intent to attract or
with the understanding that the gathering may attract two hundred
(200) or more persons; and that under the language of the MOGO,
Augusta might (although it did not) require a separate MOGO permit
as well as a parade permit.
In the district court's view, the undefined phrase in the
MOGO, "mass gathering," could well include a parade. The City
might want the sponsor of "a large parade" to furnish the health
and safety items specified in the MOGO, i.e., adequate medical
facilities, adequate and satisfactory water supply and sewer
facilities, and refuse storage and disposal facilities. The court
believed that "sewer facilities" could be interpreted to mean
portable toilets and that other terms could likewise be read in a
way relevant to parades and marches.
The district court believed that the deposition testimony
of Deputy Police Chief Major Gregoire, rendered on October 6, 2004,
indicated the City's ambivalence about the MOGO's role. Asked
whether a parade of 3,000 people for a mile down a City street was
a mass gathering, Gregoire replied: "That's--I mean, that's an
interpretation. I don't know. I would have to review what the
ordinance said. They are moving and that type of thing. They
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could be considered a parade. It's a matter of interpretation."
In the court's opinion, this reply was inconsistent with, perhaps
even contradictory of, Gregoire's subsequent affidavit, dated March
15, 2005, in which Gregoire stated positively, "the City interprets
the Mass Outdoor Gathering permit to only apply to a gathering
which occurs at a fixed location."
The two, as it believed, inconsistent statements by
Gregoire led the district court to conclude, "if Major Gregoire
changed his mind once, he could do so again," and to find that
"when plaintiffs applied for their permits, there was a reasonable
possibility that the City might interpret the MOGO to apply to
their conduct." The court ruled that "in light of Major Gregoire's
changing testimony and in the absence of a long-standing municipal
practice, this Court finds the City of Augusta has not adopted an
authoritative interpretation so as to eliminate its application to
marches or parades."
With respect, we do not agree with the district court's
analysis. We do not think plaintiffs have shown a realistic
likelihood that, in addition to a parade permit, the City might
have required them to receive a MOGO permit for the marching
activities reflected in this record. Textually, we do not read the
two ordinances as requiring persons like plaintiffs proposing an
ordinary street march on the City's public streets to obtain more
than a parade permit. And, if there were any question about this,
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Gregoire's affidavit as to the City's interpretation,
uncontradicted by anything shown in the record, and supported by
the City's consistent willingness to allow these plaintiffs to
march without requiring more than a parade permit, is entitled to
be credited as reflecting the City's authoritative view that a MOGO
permit was not needed.2
a. Interpretation of the Language of the Ordinances
Looking first at the text of the parade ordinance, it
requires a permit thereunder for "an intended parade, march or
other use of public ways within the City" -- precisely the events
the plaintiffs intended and for which they sought, and in
Sullivan's case received, parade permits. Plaintiffs never sought,
nor were they advised by anyone to obtain, a MOGO permit,
presumably because the parade ordinance alone referred specifically
to parades and marches on the City's public ways, while the MOGO
said nothing about moving events of this character. Rather, the
MOGO addresses the licensing of what it calls, without further
definition, "a mass outdoor gathering with the intent to attract
two hundred (200) or more persons." The MOGO thus addresses an
undefined (except for the 200-person benchmark) generic class of
mass gatherings without any limits as to type or place. In
2
We note, in addition, the total absence of allegations in the
amended complaint, or facts in the stipulated record, indicating
that the MOGO has in any way chilled or affected plaintiffs'
conduct. See infra.
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comparable circumstances -- given two ordinances, one specific and
the other general -- Maine's courts, like federal and other state
courts, have followed the interpretive rule that "specific
statutory provisions take precedence over general provisions."
Zeigler v. American Maize-Prod. Co., 658 A.2d 219, 222 (Me. 1995)
(quoted with approval in Camps Newfound/Owatonna Corp. v. Town of
Harrison, 705 A.2d 1109, 1115 (Me. 1998)). See also Armstrong v.
Town of Cape Elizabeth, 2000 WL 33675379 (Me. Super., Dec. 31,
2000) (applying foregoing principle to Cape Elizabeth zoning
ordinance). See generally Busic v. United States, 446 U.S. 398,
406 (1980) ("A more specific statute will be given precedence over
a more general one . . . ."). Under this interpretive rule, the
parade ordinance, which regulates in haec verba the very type of
conduct in which plaintiffs intended to engage, i.e., a march on
public ways, would seem likely to be construed -- as in fact it has
been by the City -- to take precedence over the more general MOGO,
which makes no particular mention of conduct of this sort. It
seems unlikely, therefore, that the two ordinances would be
construed in pari materia, viz. as both applying equally to
plaintiffs' proposed marches and as calling for dual permits and
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dual fees,3 and, in fact, no such construction has ever been
advanced by anyone on behalf of the City.
One can speculate, to be sure, as did the district court,
that giant parades or unusually large or lengthy street marches
might give rise to public health concerns similar to those upon
which the MOGO focuses. Such hypothetical events, indeed, might
even require fixed staging areas, in which case the MOGO might
become applicable. But there are neither allegations in
plaintiffs' amended complaint nor evidence in the stipulated record
that plaintiffs' marches implicated gatherings of over 200 persons,
that fixed staging areas or the like were contemplated, or that
plaintiffs' marches were so large or of such duration as to give
rise to public health considerations that might even arguably
implicate a second permit under the MOGO.
Sullivan's application for his march on March 20, 2004
stated it was to last only one and a half hours. Little else can
be discerned from the record about the actual characteristics of
plaintiffs' marches other than that, in Sullivan's case, the march
3
We would add that the language used to describe the MOGO's
requirements, while conceivably able to be stretched to large
parades, seems far more apt to fixed locations. "[A]dequate and
satisfactory water supply and sewer facilities" could conceivably
extend to portable toilets, as the court said, but it is
questionable if someone having portable toilets in mind would have
described them in that way. At the very least, if the MOGO was
meant to regulate the parades and marches already regulated by the
parade ordinance, it would seem likely that one of the ordinances
would have cross-referenced the other.
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occurred and that no suggestion was ever made by anyone that a MOGO
permit, in addition to the parade permit, was required. Indeed,
plaintiffs' amended complaint alleges that "Plaintiff [Sullivan]
was not required in this instance to obtain a Mass Gathering
Permit" and also states, "The only barrier to Sullivan exercising
his right to free speech and assembly in the traditional public
forum of Augusta's streets and sidewalks is his inability to pay
over $2,000 for police salaries, police squad car use, and event
insurance [all items connected with his application for a parade
permit at the time he applied]." Dansinger's march did not occur,
but, again, there is nothing whatever in the record to suggest
that, in his case, anyone, including the Police Department and
Dansinger himself, felt the parade ordinance was by itself
insufficient to meet all the City's and the public's regulatory
requirements. It is worth noting that paragraph (d) of the parade
ordinance allows the Police Chief to "impose reasonable conditions
including, but not limited to [certain conditions spelled out in
the ordinance]" (emphasis supplied). Under paragraph (d), the
Police Chief, without recourse to a separate MOGO permit, could
presumably condition issuance of a parade permit on provision of
specified facilities he thought reasonably necessary to safeguard
public health should he believe the circumstances of a particular
parade or march so required.
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Looking simply at the text of the two ordinances,
therefore, we think it far less likely than did the district court
that they would ever be read as requiring anything but a parade
permit for the marches for which plaintiffs requested permits.4
Significantly, the only allegation in the amended complaint
regarding the MOGO's possible relevance is that it "employs legally
identical requirements on applicants for mass outdoor gatherings"
as does the parade ordinance and is subject to the same
constitutional objections. No concrete facts of any kind are
alleged showing how or why the MOGO, in addition to the parade
ordinance, would apply to plaintiffs' street march activities so as
to cause them to suffer injury-in-fact from that ordinance.
b. The City's Interpretation of the MOGO in Gregoire's
Affidavit
The City's own interpretation of the MOGO, as expressed
in Gregoire's affidavit, has been consistent with the above textual
4
The City contends that for it to have read the two ordinances
as requiring duplicative permits would also have violated the rule
that statutes should be read so as to avoid constitutional
difficulties. Frisby v. Schultz, 487 U.S. 474, 483 (1988). To
require two permits for one street march would increase the burdens
on those seeking permission to march and would arguably, by that
fact alone, further chill their free speech rights. Additionally,
the MOGO requirements would be open to challenge under the First
Amendment as to whether or not the additional burdens they placed
upon plaintiffs' First Amendment rights were excessive. Without
passing on the validity of such contentions, we note the obvious
fact that an interpretation that each of the two ordinances applied
to plaintiffs would increase the scale of possible constitutional
difficulties, while an interpretation that only the parade
ordinance applies avoids many such difficulties.
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reading. And while this interpretation was formally stated only
after this litigation began, plaintiffs have neither alleged nor
produced any evidence that the City, before Gregoire's affidavit,
requested or received from anyone similarly situated to plaintiffs
(much less plaintiffs themselves), a MOGO permit in addition to a
parade permit. In other words, the City's actions have at all
times been consistent with the City's interpretation stated in
Gregoire's affidavit that the MOGO applies only to mass gatherings
at fixed locations.
Deputy Chief Gregoire, who handled both types of permits
for many years, testified to much experience with parades but very
few mass gatherings, from which it would appear that the MOGO was
not widely employed, and, one might infer, was not employed in
duplicate fashion with parades. The fact that Sullivan's March 20,
2004 march took place with only a parade permit, issued without
suggestion from the Police Department that he also needed a MOGO
permit (which, like the parade permit, is handled by the Police
Department), strongly supports the City's position, asserted in
Gregoire's affidavit, that it interprets the MOGO to apply only to
mass gatherings at fixed locations, not to parades and marches. It
is plaintiffs' burden to establish injury-in-fact as an essential
part of their standing -- not the City's burden to disprove it.
See, e.g., FW/PBS v. Dallas, 493 U.S. 215, 231 (1990) (holding that
standing must affirmatively appear in the record and it is the
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burden of the party seeking the exercise of jurisdiction in his
favor clearly to allege facts demonstrating that he is a proper
party to invoke judicial resolution of the dispute). See also
Lujan, 504 U.S. at 560-61; Osediacz, 414 F.3d at 139.
Here the evidence the district court saw as indicative of
an ambivalent City policy to require a MOGO permit in addition to
a parade permit was Gregoire's early deposition testimony,
responding to a question whether a parade of 3,000 people for a
mile down the street was a mass gathering. Gregoire's response was
"That's--I mean, that's an interpretation. I don't know. I would
have to review what the ordinance said." Gregoire then went on to
say, in the same response, "They are moving and that type of thing.
They could be considered a parade . . ." (emphasis supplied). Six
months later, the City submitted to the court Gregoire's affidavit
stating unequivocally, "The City interprets the Mass Outdoor
Gathering permit to only apply to a gathering which occurs at a
fixed location."
Between Gregoire's earlier deposition testimony and his
later affidavit stating the City's final position, we see no
discrepancy such as to warrant the district court's finding that he
had a "change of mind." His deposition response came in answer to
a question that could easily have caught Gregoire by surprise,
about whether an enormous hypothetical 3,000 person parade
extending for a mile would be a mass gathering. Gregoire said, in
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effect, he didn't know -- he would have to review what the MOGO
said. Even so, he then suggested that, "They could be considered
a parade." In the six months that followed, Gregoire had the
opportunity to review the issue, to reread the ordinances, and to
consult with the Police Chief and other City officials, after which
his affidavit was filed stating unequivocally the City's
interpretation of the MOGO. That he consulted with superiors and
spoke for the City, not just himself, can be inferred from the fact
that in the affidavit he purported, under oath, to speak for the
City; it is only reasonable to assume that a ranking officer like
Gregoire would not have purported to speak for the City in
important litigation of this type without first obtaining
authorization. While he was not the Police Chief or City Manager,
he was the second in command in the Police Department, the agency
empowered by the two ordinances to issue both parade and mass
outdoor gathering permits, and, subject to the Chief, was in charge
of reviewing and acting upon applications to hold parades and
marches in Augusta.
As we say, we can see no contradiction between Gregoire's
guarded reply during his earlier deposition and his later
affirmative affidavit. The earlier response at most suggests
uncertainty. He said nothing directly contrary to what he later
represented in his affidavit was the City's interpretation. That
the City interpreted a MOGO permit to apply only to a gathering
-24-
which occurs at a fixed location fits reasonably within the
language of the two ordinances, supra, is consistent with the
City's practices as reflected in this record, and is entitled to be
taken as an authoritative representation of the City's
interpretation of its own ordinance. See Forsyth County v.
Nationalist Movement, 505 U.S. 123, 131 (1992) ("In evaluating
respondent's facial challenge, we must consider the county's
authoritative constructions of the ordinance, including its own
implementation and interpretation of it").
This is not a case where the agency's interpretation
during a lawsuit repudiates its earlier interpretation, suggesting
the later-announced interpretation might be a ploy to end the
lawsuit and leave the agency free to return subsequently to the
very practices that caused the plaintiff to sue. There is
absolutely no evidence to suggest that Gregoire's affidavit of the
City's interpretation constituted a repudiation of or departure
from some earlier different practice of the City, nor have
plaintiffs so alleged. Compare Friends of the Earth, Inc. v.
Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (observing
that defendants' cessation of challenged practice during course of
litigation did not guarantee they would not return to practice
after dismissal). The district court criticized the City for not
establishing that Gregoire's assertion of its interpretation
reflected "a longstanding municipal practice," but the City's
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treatment of these plaintiffs has from the start been entirely
consistent with the interpretation of the MOGO stated in Gregoire's
affidavit, and plaintiffs, whose burden it is, have produced no
evidence of any inconsistency at any time in the City's treatment
of others. We see no reason not to accept the City's asserted
interpretation under these circumstances.
We hold that plaintiffs did not meet their burden of
establishing a "reasonable possibility" that, in applying to hold
their street marches along City streets, they were or would be held
subject to the MOGO as well. We conclude, therefore, that
plaintiffs lack standing to litigate the various issues they raise
concerning the alleged defects in the MOGO as distinct from those
in the parade ordinance. We vacate the district court's judgment
insofar as it relates to any of the provisions of the MOGO.
Because plaintiffs lack standing to challenge the MOGO,
we need not examine the "ripeness" of their MOGO claims. Without
standing, plaintiffs' challenges to the MOGO provisions must be
dismissed.
ii. Standing to Challenge the 30-Day Advance Application
Requirement in the Parade Ordinance
The City argues that the plaintiffs do not have standing
to challenge the provision in the parade ordinance, § 13-5(a),
requiring applicants to apply for a permit "no less than 30 days
prior to an intended parade, march or other use of public ways
-26-
within the City." The City does not challenge plaintiffs' standing
to mount constitutional claims as to any other provisions within
the parade ordinance. The City notes that plaintiffs never
demonstrated any intent or need to apply for their parade permits
fewer than thirty days before the marches for which the permits
were being sought. Sullivan made a timely application for his
permit, which ultimately he received. Dansinger never completed
his application for a parade permit, but was timely in his initial
application, so that it does not appear the 30-day requirement was,
for him, a stumbling block.
But, notwithstanding their apparent ability to comply, we
believe the plaintiffs have standing to challenge, along with other
provisions of the parade ordinance, the constitutionality of the
thirty-day advance application provision. While it is true they
never applied later than the thirty days before the sought-for
permit, a late application is not necessary if injury can otherwise
be surmised. Osediacz, 414 F.3d at 143. Sullivan indicated such
injury in his deposition testimony that in late March 2004, he was
deterred from applying for a permit for an intended April 10, 2004
street march because it was too late for him to comply with the
thirty-day advance notice requirement.5 Sullivan's testimony was,
5
The thirty-day provision, to be sure, is qualified by
authorization to the City Manager to "allow a shorter time frame
for good cause shown." But because we find that essentially
standardless provision to be insufficient to redeem the thirty-day
requirement, infra, we believe that Sullivan's complained-of
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we believe, enough to permit plaintiffs to pursue a facial
challenge to the thirty-day requirement as part of their overall
attack on various aspects of the parade ordinance.
Because there was a showing of injury sufficient for
standing to attack the thirty-day provision, we need also to
determine the ripeness of this claim.
Ripeness calls for an evaluation of the fitness of the
claim and the hardship to plaintiffs of withholding immediate
judicial consideration. Rhode Island Ass'n of Realtors, Inc. v.
Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999). We have said that
when free speech is at issue, concerns over chilling effect call
for a relaxation of ripeness requirements. El Dia, Inc. v.
Hernandez Colon, 963 F.2d 488, 496 (1st Cir. 1992) (stating that a
"facial challenge of this sort, implicating First Amendment values,
customarily works a relaxation of the ripeness criteria"). The
rationale for this relaxation is said to stem from a fear of
"irretrievable loss." Id. Thus, when First Amendment claims are
presented, "[r]easonable predictability of enforcement or threats
of enforcement, without more, have sometimes been enough to ripen
a claim." New Mexicans for Bill Richardson v. Gonzales, 64 F.3d
1495, 1499 (10th Cir. 1995) (quoting Martin Tractor Co. v. Federal
Election Comm'n, 627 F.2d 375, 380 (D.C. Cir.), cert. denied, 449
deterrence suffices to establish injury, especially where there is
no question as to plaintiffs' standing to challenge, on First
Amendment grounds, other aspects of the very same ordinance.
-28-
U.S. 954 (1980)). The standing and ripeness concerns are
intertwined, with the core issue being the reasonable fear of
enforcement. Whitehouse, 199 F.3d at 33. Here, Sullivan testified
to believing that the requirement to apply for a parade permit
thirty days before the event blocked his eligibility to receive a
permit for a short-notice street march he wished to hold on April
10, 2004 and that, as a result, he did not apply for a permit and
did not hold the march. His concern as to this provision is
closely linked to other concerns of and alleged injuries to
plaintiffs stemming from the parade ordinance's effect upon them.
We believe plaintiffs' challenge to the thirty-day provision is fit
to be decided now in this litigation, and that it would be a
hardship to plaintiffs were we not to do so. The challenge to the
thirty-day requirement was and is ripe for present review.
C. Parade Ordinance Issues
The district court struck down several provisions in the
parade ordinance as unconstitutional, holding them facially to
violate the First Amendment of the Constitution. Before
considering each of these in turn, we discuss certain generally
applicable principles mentioned also by the district court.
Sullivan II, 406 F. Supp. 2d at 106-07.
The district court properly held that protest street
marches such as the ones plaintiffs conduct are forms of assembly
and expressive speech protected by the First Amendment. See, e.g.,
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Hurley, 515 U.S. at 568. That protection is not absolute, however,
since the First Amendment rights must be harmonized with the
"existence of an organized society maintaining public order without
which liberty itself would be lost . . . ." Cox v. State of New
Hampshire, 312 U.S. 569, 574 (1941). The Supreme Court went on to
say in Cox that regulating the use of the public streets and
restricting the use of highways to promote the public convenience,
"cannot be disregarded by the attempted exercise of some civil
right which in other circumstances would be entitled to
protection." Id. at 574. The Court thus upheld in Cox a
municipality's right to require marchers to obtain a license and
pay a fee (not more than $300, at the time) before parading on
public streets. The Court stated that "the question in a
particular case is whether . . . [the City's] control is exerted so
as not to deny or unwarrantedly abridge the right of assembly and
the opportunities for the communication of thought and the
discussion of public questions immemorially associated with resort
to public places." Id.
A notable aspect of the Supreme Court's analysis in Cox,
as the district court observed, is that a municipality's parade
permit ordinance is not to be reviewed as a "prior restraint" but
as a reasonable regulation of the "time, place and manner in
relation to the other proper uses of the streets." Cox, 312 U.S.
at 576. The Supreme Court has recently reiterated this standard in
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regard to a municipality's content-neutral regulation of parades
and other public assemblies in its parks. See Thomas v. Chicago
Park District, 534 U.S. 316, 322-23 (2002).6
Augusta's instant parade ordinance is plainly content-
neutral, as the district court found.7 Unlike regulations that are
not content-neutral, which are reviewed under a harsher strict-
6
In Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), the
Supreme Court explained that "the principal inquiry in determining
content neutrality, in speech cases generally and in time, place,
or manner cases in particular, is whether the government has
adopted a regulation of speech because of disagreement with the
message it conveys." The main inquiry is not whether certain
speakers are disproportionately burdened, but rather, whether the
reason for the differential treatment is, or is not, content-based.
See Hill v. Colorado, 530 U.S. 703, 719-20 (2000).
7
While acknowledging that the parade ordinance is content-
neutral on its face, the plaintiffs have argued to us that Augusta
applied the ordinance in a viewpoint-discriminatory manner by
waiving the parade permit fee for the Maine Chiefs of Police
Association's annual parade. The district court disagreed. It
found that the City's waiver of the fee did not "disfavor or
suppress one viewpoint in favor of another." Rather, it held,
Augusta had merely used its funds permissibly to promote a speaker
deemed to be in the public interest.
Although plaintiffs now argue against the district court's
resolution of this issue, they have never filed a cross-appeal from
the district court's determination that the waiver of fee for the
Maine Chiefs of Police Association's annual parade is
constitutionally permissible. We therefore lack jurisdiction to
consider plaintiffs' objections to the district court's specific
ruling on this issue. See United States v. Craven, 239 F.3d 91,
103 (1st Cir. 2001); Justice for All v. Faulkner, 410 F.3d 760, 772
(5th Cir. 2005). Cf. Johnson v. Teamsters Local 559, 102 F.3d 21,
28 (1st Cir. 1996) (dismissing late-filed cross-appeal for lack of
appellate jurisdiction). To the extent plaintiffs pursue this
claim on appeal on the ground that we may affirm the district
court's judgment invalidating the fee provision on any basis
supported by the record, we concur with the district court that the
waiver of the permit fee did not constitute viewpoint
discrimination.
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scrutiny standard, e.g., United States v. Playboy Entm't Group,
Inc., 529 U.S. 803, 813 (2000), content-neutral regulations are
reviewed under so-called intermediate scrutiny. Intermediate
scrutiny calls for narrow tailoring to serve a legitimate, content-
neutral governmental interest, but the tailoring need not be the
least restrictive nor the least intrusive possible. Ward, 491 U.S.
at 798. See also Casey v. City of Newport, 308 F.3d 106, 110-11
(1st Cir. 2002); Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d
731, 736-37 (1st Cir. 1995). Time, place and manner regulations of
this type are constitutional if they: (1) do not delegate overly
broad licensing discretion to a government official; (2) are
narrowly tailored to serve a significant governmental interest;8
and (3) leave open ample alternatives channels for communication of
the information. Thomas, 534 U.S. at 323; New Eng. Reg'l Council
of Carpenters v. Kinton, 284 F.3d 9, 20 (1st Cir. 2002). We apply
these standards in our review of Augusta's parade ordinance.
We turn now to the constitutionality of the different
parade ordinance provisions.
8
Justice Kennedy, writing for the majority in Ward, emphasized
that while narrow tailoring in the content-neutral context was more
relaxed, the regulation may not "burden substantially more speech
than is necessary to further the government's legitimate interests.
Government may not regulate expression in such a manner that a
substantial portion of the burden on speech does not serve to
advance its goals." Ward, 491 U.S. at 799.
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i. Traffic Control Fee
Plaintiffs contend, as the district court held, that even
under the intermediate scrutiny afforded content-neutral time-
place-manner regulations, the fee provision of the parade ordinance
is unconstitutional. Section 13-5(e) provides, "The cost of the
permit shall be one hundred dollars ($100), plus the costs of
traffic control per city collective bargaining agreement and clean
up costs, as estimated by the Police Department." The ordinance
further provides, "The permit fee will not include the cost of
police protection for public safety." The $100 fee is payable at
the time the application is submitted and the balance at the time
the permit is issued.
The district court held that the fee provision delegated
overly broad discretion to the Augusta Police Department to
determine the costs of traffic control -- costs which plaintiffs
were required to pay as a part of the total parade permit fee.
Citing Forsyth, 505 U.S. at 132-34, the court ruled that the fee
provisions of the parade ordinance were lacking in narrow,
objective and definite standards sufficient to guide the discretion
of the Augusta Police Department in estimating the costs of traffic
control. Sullivan II, 406 F. Supp. 2d at 116.
The district court refused to consider as supplementing
the ordinance's own standards an affidavit from Deputy Chief Major
Gregoire in which he stated certain of the factors on which he
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based his calculation of the traffic control fee. Id. at 116-17.
The district court ruled that the factors set forth in Gregoire's
affidavit went beyond anything found in the text of the ordinance
itself and were not shown to reflect the City's "well-established
practice," citing City of Lakewood v. Plain Dealer Pub. Co., 486
U.S. 750, 770 (1998). Id. at 117.
The district court also found that "the City charged Mr.
Sullivan $478.55 more than its actual overtime payments" to the
officers who served on the detail assigned to Sullivan's March 20,
2004 parade. This overcharge resulted from the fact that the City
estimated how many officers would be needed for traffic control,
and what they would be paid, before it knew which particular
officers would be available for the parade detail. Id. at 121-22.
The City's collective bargaining agreement requires paying each
officer for a minimum overtime shift of four hours, but the pay
rate of individual officers differs. In the present case, the
original estimate exceeded by $478.55 the cost of paying the
officers who took part in the March 20, 2004 parade detail.
Sullivan paid the original estimate, and no refund was tendered.
The district court rejected the City's argument that the pay
overcharge was offset by the City's not charging Sullivan for
certain of its administrative expenses, such as Gregoire's own time
to schedule and organize the parade detail. There was no evidence
in the record as to the latter costs. Pointing to precedent that
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only a fee defraying actual expenses is permissible, and that
excess fees are unconstitutional, the district court held that the
fee was "overbroad" as it "does not bear a direct or precise
relationship to the actual costs incurred." Id. at 122.
Plaintiffs complained below, as they do now, that the
Police Department's determination of the estimated cost of traffic
control "relies heavily on a judgment call about the number of
officers that are required to provide traffic control" because the
department "has never established any written criteria or formula
for calculating the number of officers or vehicles as part of its
estimate of the traffic control cost." They argue this "broad
subjectivity and discretion" was highlighted by the police
department's increase of "its estimate by twenty percent, from
eight to ten, for the number of police officers needed to provide
traffic control for the parade route used on April 8, 2003 when the
same exact route was proposed for the March 20, 2004 parade." They
additionally argue that the provision's excessive discretion and
overbreadth are demonstrated by the fact the City overcharged them
for the actual cost of the additional officers during the March
2004 parade organized by Sullivan.
a. Excessive Discretion
We disagree with the district court and appellees that
the parade ordinance fee provisions lack sufficiently precise and
definite standards to guide the police. We agree, however, that
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the permit fee charged to and paid for by Sullivan for the March
20, 2004 parade, which the court found was incorrectly inflated by
nearly $500, was, to that extent, unconstitutional as applied.
In deciding that the fee provision in the parade
ordinance granted constitutionally "excessive" or "unfettered"
discretion to the Augusta Police, the district court relied
particularly upon the Supreme Court's holding in Forsyth, 505 U.S.
at 137. In that case, a county ordinance mandated permits for
private demonstrations and other uses of public property, required
advance payment of a daily fee of no more than $1,000, and
empowered the county administrator 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." Id. at 123.
The Court found the ordinance unconstitutional, noting, inter alia,
(1) the county administrator's "unfettered discretion" to determine
what expenses to include and to set the amount of the fee,9 and (2)
the fact that the ordinance allowed the fee to include the costs of
"necessary and reasonable protection of persons participating in or
observing said . . . activities." Id. at 133. The Court held the
9
The Court emphasized the total absence of "articulated
standards either in the ordinance or in the county's established
practice," to guide the administrator's fee-setting discretion.
"The decision how much to charge for police protection or
administrative time--or even whether to charge at all--is left to
the whim of the administrator." 505 U.S. at 133.
-36-
latter costs were an improper charge upon the permittee, equating
it with basing a fee on the content of the speech. Id. at 133-36.10
While Forsyth stands as a clear warning against vesting
governmental officials with excessive discretion in regard to fee-
setting,11 and while "even content-neutral time, place and manner
restrictions can be applied in such a manner as to stifle free
expression," Thomas, 534 U.S. at 323, the range of fee-setting
discretion granted to the county administrator in Forsyth far
exceeded that granted here to the Augusta Police Chief and Police
Department. In Forsyth, unlike here, the county administrator was
not limited to estimating, as part of the fee, a particular
category of expenses within the administrator's expertise, like the
costs of traffic control. Instead he had discretion to decide the
kind and amount of administrative and policing expenses to include
(or exclude) from the fee, and it appears that he also assumed the
right to charge nominal or no fees to favored groups. Forsyth, 505
U.S. at 131-32 & n.9.
10
Forsyth involved a content-based, not content-neutral,
ordinance, but the analysis of overly broad discretion as discussed
in Forsyth has also been applied in cases involving content-neutral
ordinances. See Thomas, 534 U.S. at 323.
11
Citing Forsyth and Niemoto v. Maryland, 340 U.S. 268, 271
(1951), the Thomas Court stated, "We have thus required that a
time, place and manner regulation contain adequate standards to
guide the official's decision and render it subject to effective
judicial review." 534 U.S. at 323.
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The fee-setting authority of the Augusta Police
Department is far more confined here. The ordinance provides, "The
costs of the permit shall be one hundred dollars ($100) plus the
costs of traffic control per city collective bargaining agreement
and clean-up" (emphasis supplied). The Police are given no
discretionary authority to estimate and charge costs other than the
costs of traffic control and clean-up, nor are they authorized to
vary the character of the costs as between applicants: the cost of
each permit "shall be" as described, resulting in a uniformly-
computed fee for each applicant. The cost of hiring police
officers for traffic control is "per city collective bargaining
agreement," requiring reference to that agreement for the amount to
be paid to each officer. Finally, the "cost of police protection
for public safety," the item the Supreme Court found to be
improperly included in the Forsyth County ordinance, is expressly
excluded by the parade ordinance from the costs passed on to permit
applicants.
Given the above limitations, the principal area left to
police discretion in estimating the Augusta permit costs lies in
determining the number of extra officers and police vehicles to
assign to a particular parade or march for traffic control
purposes. Plaintiffs complain the City has failed to articulate a
precise "formula" to guide the police in performing this estimate.
However, the plaintiffs have pointed to no evidence that there
-38-
exists any meaningful advance "formula" that could be inserted in
an ordinance to determine the number of needed officers and
vehicles in a given case. Parades and marches obviously vary
enormously in terms of size, timing, duration and location,
resulting often in quite different traffic control needs.
Experienced, professional judgment would seem to be the most likely
way to estimate how many extra officers will be needed. The City
states that the present marches involved the use of very heavily
trafficked streets, requiring diversion of traffic elsewhere during
the event. It is hard to see any purely mechanical means for
determining how many officers would be needed to direct traffic at
the various intersections of differing routes and neighborhoods.
In any case, plaintiffs have offered no example of the
sort of "formula" they have in mind. In the circumstances, it
seems reasonable for the City to rely upon the experienced judgment
of its Police Department to determine personnel and police
vehicular needs for traffic control at a particular applicant's
parade or march. We take judicial notice that traffic control is
a major responsibility of local police departments around the
nation. Rerouting and directing traffic around construction sites,
accident scenes and the like are tasks the police regularly
perform. The police, moreover, know the traffic patterns and
problems along the different streets in their particular city and
its neighborhoods. Augusta could reasonably believe that its
-39-
Police Chief and his staff had the expertise to estimate, case by
case, the additional personnel and equipment needs for a traffic
control detail established to handle traffic problems caused by a
march on city streets. And once these needs are ascertained, the
City's collective bargaining agreement provides objective pay
information for determining overall costs.
In ruling that the ordinance provided insufficient
standards, the district court refused to take into account
Gregoire's affidavit that in determining the detail needed for
plaintiffs' marches, he was guided by certain implementing
criteria--criteria not unlike those a police officer said he
considered for similar purposes in Stonewall Union v. City of
Columbus, 931 F.2d 1130, 1135 (6th Cir. 1991). Speaking about the
costs charged to plaintiffs, Gregoire stated that the size of the
traffic control detail "is based only on factors which are
completely unrelated to the message to be communicated by marchers"
and includes the route to be taken, the duration of the route, the
estimated number of people who will attend, whether marchers intend
to close the entire road or only one direction of travel, and
whether there are any other events or special circumstances within
the City which could affect traffic.
We need not decide if Gregoire's affidavit should have
been given weight here. Regardless, it is difficult to see that
his stated criteria added much of constitutional import to what can
-40-
be gleaned from the terms of the ordinance itself. See supra. An
ordinance of this type must furnish "narrowly drawn, reasonable and
definite standards" that are "reasonably specific and objective,
and do not leave the decision 'to the whim of the administrator.'"
Thomas, 534 U.S. at 324 (quoting Forsyth County, 505 U.S. at 133).
We believe Augusta's ordinance furnished such standards quite apart
from the matters Gregoire mentioned.
The parade ordinance directed the Police Department to
calculate the costs of traffic control and clean up relative to the
particular event for which a permit was sought. The making of a
relevant professional judgment of this kind may properly be
delegated to police and other officials. See Kinton, 284 F.3d at
26 (noting that "[p]ublic safety and convenience are
paradigmatically permissible considerations in the issuance of
permits" and judgments about public safety are inherently within
the competence of permitting officials). The factors Gregoire
listed in his affidavit for determining the size of the traffic
control detail -- the parade route, its duration, the estimated
number of people who will attend, whether entire or partial road
closure is involved, and whether there are other events or special
circumstances affecting traffic -- added few if any considerations
that would not seem perfectly obvious to anyone asked to determine
traffic control costs relative to a particular parade or march on
city streets. And, as previously noted, the ordinance itself rules
-41-
out charges that might be said to relate to the message "to be
communicated by the marchers" by excluding altogether from the
permit fee "the cost of police protection for public safety."
To be sure, the ordinance is terse; more extended glosses
provided by written standing orders and the like might arguably be
helpful in some way. But we believe the parade ordinance's fee
provision affords, by itself, sufficient "narrowly drawn,
reasonable and definite standards" so that the fee-setting decision
is not left "to the whim of the administrator." Thomas, 534 U.S.
at 324 (quotation omitted). Our duty is not to determine whether
the ordinance meets ideal standards but whether it passes the
constitutional threshold.
Plaintiffs, in addition to challenging the wording of the
ordinance on its face for alleged absence of fee-setting standards,
challenged the fee charged to Sullivan as being constitutionally
excessive as applied. The district court agreed. Here, we
believe, both appellants and the court are on firm ground. The
district court found that Augusta charged Sullivan $478.55 more
than the City's actual overtime payments to its officers for the
March 20, 2004 march. The City's defense on appeal (apart from
arguing the overcharge was so small as to be de minimis) is that it
was offset by other expenses not charged plaintiffs by the City,
such as the cost of Gregoire's time in processing Sullivan's permit
application. The City, however, never purported to include this
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latter type of expenses in its calculation of traffic control
costs. There is, moreover, no evidence to show what such other
costs were. We agree with the district court that it was too late
in the day for these supposed costs to be plugged into the present
fee equation. A mistaken calculation of nearly $500 cannot in this
context be considered de minimis. Sullivan's overcharge was
contrary to the ordinance's language limiting the fee to $100 "plus
the costs of traffic control per city collective bargaining
agreement and clean up" (emphasis supplied).12 Amounts estimated
in advance but never actually charged to the City are not a part of
the "costs" of traffic control.
The Supreme Court has held that a government cannot
profit from imposing licensing or permit fees on the exercise of a
First Amendment right. Murdock v. Pennsylvania, 319 U.S. 105, 113-
14 (1993). Only fees that cover the administrative expenses of the
permit or license are permissible. Cox, 312 U.S. at 577 (approving
12
One way to guard against, or at least correct, a future
overcharge of this sort would be to include in the parade ordinance
a provision permitting some type of readily available
administrative review process. Augusta's ordinance allows a parade
permit applicant to appeal in writing to the City Council within
five days if "the permit is denied or modified," § 13-5(g). But
there is no explicit right to appeal from a fee overcharge. See
Forsyth, 505 U.S. at 133 (noting with disapproval that
administrator's fee decision was "unreviewable"); Thomas, 534 U.S.
at 23 (noting with approval fact that the ordinance was
"enforceable on review--first by appeal to the General
Superintendent of the Park District . . . ."). The absence of an
explicit review process for fee overcharge was not raised as a
possible constitutional defect by plaintiffs and hence is not a
matter for our consideration on appeal.
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of a fee "limited to the purpose stated" of meeting "the expense
incident to the administration of the Act and to the maintenance of
public order in the matter licensed"); Citizens Action Group v.
Powers, 723 F.2d 1050, 1056 (2d Cir. 1983) ("Licensing fees used to
defray administrative expenses are permissible, but only to the
extent necessary for that purpose."); Fernandes v. Limmer, 663 F.2d
619, 633 (5th Cir. 1981) (invaliding a $6 per day fee for permit to
distribute religious literature in a municipal airport because of
failure to restrict use of fee receipts to expenses of licensing
process).
It is a violation of the First Amendment to have charged
Sullivan more than the actual administrative expenses of the
license, as set forth in the ordinance. Thus, although we find the
standards for the permit fee to be sufficiently definite to pass
constitutional muster, we uphold the district court's invalidation,
as applied, of the excessive amount charged to Sullivan.
b. Thirty-Day Notice Requirement
The plaintiffs argued successfully below that the parade
ordinance's requirement that applicants apply for a permit "[n]o
less than thirty (30) days prior to an intended parade, march or
other use of public ways within the City," coupled with
authorization to the City Manager to "allow a shorter time frame
for good cause shown" is not narrowly tailored and vests too broad
discretion in City officials. We agree.
-44-
Notice periods restrict spontaneous free expression and
assembly rights safeguarded in the First Amendment. People may, in
some cases, wish to engage in street marches in quick response to
topical events. While even in such time-sensitive situations, a
municipality may require some short period of advance notice so as
to allow it time to take measures to provide for necessary traffic
control and other aspects of public safety, the period can be no
longer than necessary to meet the City's urgent and essential needs
of this type. American-Arab Anti-Discrimination Comm. v. City of
Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) ("Any notice period is
a substantial inhibition on speech."). Advance notice requirements
that have been upheld by courts have most generally been of less
than a week. See, e.g., A Quaker Action Group v. Morton, 516 F.2d
717, 735 (D.C. Cir. 1975) (two-day advance notice requirement is
reasonable for use of National Park areas in District of Columbia
for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir.
1968) (two-day advance notice requirement for parade is
reasonable); Progressive Labor Party v. Lloyd, 487 F. Supp. 1054,
1059 (D. Mass. 1980) (three-day advance filing requirement for
parade permit approved in context of broader challenge); Jackson v.
Dobbs, 329 F. Supp. 287, 292 (N.D. Ga. 1970) (marchers must obtain
permit by 4 p.m. on day before the march), aff'd, 442 F.2d 928 (5th
Cir. 1971). Lengthy advance filing requirements for parade
permits, such as the present thirty days, have been struck down as
-45-
violative of the First Amendment. See American-Arab Anti-
Discrimination Comm., 418 F.3d at 605-07 (holding that provision
requiring thirty days' notice is overbroad and is not saved by an
unwritten policy of waiving the provision); NAACP, Western Region
v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) ("[A]ll
available precedent suggests that a 20-day advance notice
requirement is overbroad."). Even five days has been held too long
in certain circumstances. See Douglas v. Brownell, 88 F.3d 1511,
1523-24 (8th Cir. 1996) (city's asserted goals of protecting
pedestrian and vehicular traffic and minimizing inconvenience to
the public does not justify five-day advance filing requirement for
any parade, defined as ten or more persons).
The City argues that its interest in having advance
notice of a parade in order to control traffic, prevent scheduling
conflicts, ensure adequate facilities are available, and assign
personnel to safely close the streets is narrowly tailored. The
City points out that its police force is relatively small, with
only thirty-four officers available for assignment to parade
details.13
13
Citing Thomas v. Chicago Park Dist., 534 U.S. 316 (2002), the
City points out that the Court upheld a Chicago ordinance allowing
a total of up to 28 days for the Park District to grant or deny a
permit application. However, the facts are not comparable to the
present case, and the question of whether that time period was too
lengthy does not appear to have been directly at issue in Thomas,
id. at 323-34.
-46-
But while those factors are entitled to due weight,
applicants' First Amendment rights have countervailing strength,
and these require the City in time sensitive situations to
accommodate proposed parades and marches much more quickly than
within thirty days. See Church of the American Knights of the Ku
Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003)
(noting "the reasonableness in general of requiring that a permit
to hold a demonstration on city streets or other public property be
sought in advance of the event," but observing that "the length of
the required period of advance notice is critical to its
reasonableness; and given . . . that political demonstrations are
often engendered by topical events, a very long period of advance
notice with no exception for spontaneous demonstrations
unreasonably limits free speech" (emphasis supplied)). Hence,
while practical considerations, such as the scheduling of
additional needed officers, will justify a short period of advance
notice, a blanket rule requiring the permit application to be made
in all cases no fewer than thirty days prior to an intended parade,
march, or other use of public ways is not narrowly tailored and so
violates the First Amendment.
While the above is clear, the City contends that its
thirty-day rule is not blanket and that it has made a sufficient
exception for the kind of spontaneous demonstrations mentioned
above, as "[t]he City Manager may allow a shorter time frame for
-47-
good cause shown" (emphasis supplied). The district court and
plaintiffs, however, insist that the "good cause" standard is too
vague and subjective to serve as a sufficient guide to the City
Manager's discretion, and that the exception is, therefore,
inadequate to establish the constitutionality of the advance notice
requirement.
We think the exception does not save the unduly lengthy
application period. If the "good cause" exception were attached to
a reasonably short application period, we might rule otherwise.
But as a device to cure a standard requirement of some thirty days,
it is inadequate, requiring, as it does, that all persons desiring
to seek a parade permit within some entitled shorter period
shoulder the burden of convincing the City Manager of the existence
of "good cause." Such a requirement curtails an applicant's free
speech rights, both because of the additional effort the applicant
need make in order to claim those rights and the risk that the City
Manager may not realize from the phrase "good cause" that many
applicants will be entitled, routinely, to a shortening of the
period.
It is true that Gregoire, in a supplemental affidavit,
stated, "[a]s long as the Police Department is physically able to
contact the officers and make the appropriate arrangements to close
the road and have the appropriate traffic officers on duty, the
City would not deny the permit based on the timing of the
-48-
application." But the district court supportably ruled that
Gregoire's supplemental statement is not shown to constitute a
binding administrative interpretation or evince well-established
practice.14
We affirm the district court's conclusion that the
present thirty-day time period, as drafted, is unconstitutional for
the reasons we have stated.
c. Meet and Attempt to Agree Provision
The plaintiffs argued below that the parade ordinance's
requirement that "[w]ithin ten (10) days of applying for the
permit, as a condition to its issuance, the applicant must meet
with the Police Chief to discuss and attempt to agree on the
details of the route and other logistics," is not narrowly tailored
to serve significant governmental interests because (1) forcing an
in-person meeting with the police chief within ten days from
applying for the permit creates an unreasonable time barrier that
burdens unnecessarily a citizen seeking to promote a spontaneous or
prompt demonstration in response to a time-sensitive issue or
event; and (2) the details of the route may be an important part of
the applicant's expressive activity and thus the applicant should
not be required to negotiate with the government about the manner
14
Nothing herein, of course, prevents the City from merely
urging, as opposed to requiring, the submission of permit
applications, when possible, within some longer advance period like
thirty days, so long as it is clear that an applicant is bound only
by a shorter period, as discussed.
-49-
of expression. Plaintiffs also argued that applicants who are
uncomfortable dealing directly with the police chief, such as an
applicant wishing to protest alleged civil rights abuses by police,
might be discouraged from applying for a parade ordinance
altogether. The district court concluded that "the in-person
meeting requirement chills substantially more speech than is
necessary to achieve the end [of promoting public health and
safety]."
The City argues on appeal that while the district court
agreed there is a significant governmental interest in gathering
information on parade logistics, it erroneously applied a least
intrusive means analysis consistent with strict scrutiny, rather
than the more relaxed narrow tailoring analysis appropriate in
intermediate scrutiny. Ward, 491 U.S. at 797-98.
The City further contends that the most effective way to
arrange a parade route with the police department is to do so in
person and states that it has a policy of not rigidly adhering to
the requirement of a face-to-face meeting if it is not necessary to
serve the stated purposes of the ordinance. The plaintiffs reply
that there are no guidelines to suggest when such a waiver would be
granted and that the supposed policy of not rigidly adhering to the
meeting requirement (which the ordinance states is "a condition" to
issuance of the permit) is unsupported by any written criteria,
evidence of established practice, or specific precedent.
-50-
While the question is close, we believe the provision is
overbroad in certain respects, especially given its unyielding
language (the applicant "must meet with the Police Chief" and do so
"as a condition to [the permit's] issuance"--the latter seeming to
rule out the police department's alleged policy of not always
requiring a face-to-face meeting). We agree with the City,
however, that meeting face-to-face with the Police Chief is not an
unreasonable way in most instances to work out a route, and that
this requirement, as a general rule, is constitutionally
acceptable, provided provision is made for reasonable exceptions.
For one, it would seem necessary to allow for meeting with the
Chief's delegate in case the chief is unavailable. For another, it
may be unduly burdensome for a parade organizer who lives, or whose
work takes him, some distance away from the City, to sit down with
the Chief or his delegate. And there is the possibility that some
activist leaders may experience the kind of acute discomfort that
plaintiffs hypothesize at sitting down with the Chief because of
the nature of their cause. All of these concerns, to a greater or
lesser degree, suggest that in this age of e-mail, express mail,
fax and telephone, requiring, inflexibly, meeting with the Chief in
person within the specified ten-day period as a mandatory condition
of issuance of the permit burdens substantially more speech than is
necessary. Ward, 491 U.S. at 799.
-51-
The City can address the problem in various ways. One
way, of course, is simply to provide some acceptable alternatives
to meeting with the Chief. Another would be to provide that an
applicant may, if good cause existed, request an alternative, and
the Chief or his delegate should allow the request if reasonable
and practicable to do so. To take the above concerns into account
is not equivalent to applying the inappropriate least-restrictive
means test, see Ward, 491 U.S. at 797-98, but rather applies the
principle that a regulation of this type may not burden
substantially more speech than is necessary to further the
government's legitimate interests. Ward, 491 U.S. at 799. Hence,
one or more alternatives to a face-to-face meeting with the Chief
need to be provided. Lacking such alternative or alternatives, the
meeting provision as it currently stands is overbroad.
d. Absence of Waiver of Fees for Indigent
The plaintiffs argued below that the parade ordinance is
unconstitutional on its face and as applied because it does not
provide any exception or reduction to the potentially large permit
fee for citizens or groups for whom the fee causes a substantial
hardship. They argued successfully to the district court that the
lack of a financial exemption leaves those citizens and groups
unable to pay the fee without "open, ample alternatives for
communication." Where, as here, however, there are ample
alternative forums for speech, we see insufficient justification
-52-
for the district court's ruling that the Constitution mandates an
indigency exception, in effect forcing general taxpayers to support
financially a particular organizer's event.
i. District Court's Analysis
The district court relied on the Supreme Court's
assertion in Murdock, 319 U.S. at 111, that "[f]reedom of speech,
freedom of press, freedom of religion are available to all, not
merely to those who can pay their own way." The district court
observed that in cases where bonds and insurance premiums are
required for a parade permit, courts have found that the
requirements imposed financial demands that burdened the expressive
activities of those with insufficient financial means more than
necessary to achieve the governmental interest. The district court
asked whether the sidewalks and parks of a city represent a
reasonable alternative to the streets and concluded, based on the
testimony of a sociologist called as an expert witness by the
plaintiffs, that sidewalks have less symbolic significance than do
streets and are inadequate as alternatives for logistical reasons.
Plaintiffs' expert witness was an assistant professor of
sociology at Bowdoin College, who testified that sidewalks were not
a satisfactory alternative location for parades. He testified,
inter alia, that street marches attract more attention as they are
more likely to inconvenience the general public by interrupting
traffic and disrupting routines. He further testified that street
-53-
marches also have positive connotations because of the American
tradition of successful protest marches, such as the 1963 March on
Washington. By contrast, he thought, sidewalk marches have less
symbolic significance and provide logistical challenges because
sidewalks are narrower and prevent the carrying of large banners.
The district court also expressed concern that Augusta's
parade ordinance arguably requires the securing of permits for
sidewalk marches as well as for street marches, despite the City's
insistence that permits were not needed for sidewalk marches. The
language of the ordinance refers to the "use of public ways within
the city," which could, the district court said, easily be
construed to include sidewalks.
ii. Analysis
We disagree with the district court's conclusion, and
that of our dissenting colleague, Judge Lipez, that sidewalk
marches and other alternatives to street marches are so lacking as
to necessitate an indigency exception to the parade permit fee. We
also find no reason to reject the City's insistence that sidewalk
parades do not require permits under Augusta's parade ordinance.
In a case not unlike the present, the Sixth Circuit similarly
concluded that an indigency exemption or waiver was not required
for a parade ordinance where, as here, the sidewalks and parks of
the city were available without charge for related speech
activities. Stonewall, 931 F.2d at 1137. The Sixth Circuit
-54-
stated, "Because we believe the availability of the sidewalks and
parks provides a constitutionally acceptable alternative for
indigent paraders, we find that the lack of an indigency exception
does not render the ordinance constitutionally invalid." Id. We
agree with that analysis and find the situation in Augusta
analogous. Plaintiffs have cited several circuit and district
court cases in support of their contrary position, but these, of
course, are not binding upon us and are, moreover, largely
distinguishable.15
15
The district court cited Cent. Florida Nuclear Freeze
Campaign v. Walsh, 774 F.2d 1515, 1523-24 (11th Cir. 1985), which
held a city ordinance unconstitutional in part because there was no
provision exempting indigents from paying the cost for police
protection, but that case also found that "alternative means of
exercising First Amendment rights" were not available, which is not
the case here. Invisible Empire of the Knights of the Ku Klux Klan
v. Town of Thurmont, 700 F. Supp. 281, 286 (D. Md. 1988), which
found that the requirement of reimbursing the town for police
protection and cleanup was unconstitutional because it was not
"waived or modified for indigents" relied on Walsh for its holding.
Both cases were decided before Forsyth, which emphasized that a
license fee that was more than "nominal" was not inherently
unconstitutional. 505 U.S. at 136-7. Wilson ex rel U.S.
Nationalist Party v. Castle, 1993 WL 276959 at *4 (E.D. Pa. July
15, 1993), holding that an insurance requirement was not narrowly
tailored as applied to persons "who are financially and otherwise
unable to obtain coverage," involved an insurance requirement,
which implicates issues of viewpoint discrimination as an insurance
company may charge more depending on the group being covered, and
a strict scrutiny analysis not applicable here. Likewise, in
Invisible Empire Knights of the Ku Klux Klan v. City of West Haven,
600 F. Supp. 1427, 1435 (D. Conn. 1985), holding a bond requirement
unconstitutional as applied to those who could demonstrate their
inability to obtain a bond, the case involved the potential of a
viewpoint discriminatory "heckler's veto" in the application for a
bond and thus implicates issues not at play here. Plaintiffs
additionally rely on E. Conn. Citizens Action Group, 723 F.2d at
1056-57, which was also decided before Forsyth and held that the
-55-
1. Ample Alternatives
Augusta argues that it provides numerous alternative
avenues of communication to persons unable to afford a parade
permit, including (a) use of sidewalks, (b) gatherings on state
land such as the statehouse steps (Augusta is the state capital),
(c) hand-held banners or signs, (d) leafleting, (e) vehicular
processions, and (f) mass outdoor gatherings of fewer than 200
people. None of these alternatives requires payment of a fee, and
only one -- a rally on the state house steps -- requires a permit,
which is freely obtained.
Although the district court acknowledged the alternatives
offered by the City, it believed the sidewalks -- an alternative
defendant government agency could not charge an administrative fee
for the sole purpose of deterring frivolous requests but rather
could charge the fee only to the extent it could demonstrate "its
necessity as a means of offsetting expenses associated with
processing applications for access to property under its control."
Likewise, the plaintiffs' reliance on Lubin v. Panish, 415 U.S.
709, 718 (1974) is inapplicable here where the Court found that "in
the absence of reasonable alternative means of ballot access, a
State may not, consistent with constitutional standards, require
from an indigent candidate filing fees he cannot pay." The
plaintiffs here have alternate means of expressing their views in
the city of Augusta. The case perhaps most helpful to the
plaintiffs is Van Arnam v. GSA, 332 F. Supp. 2d 376, 406 (D. Mass.
2004), where the district court, relying on several of the above
cases, held unconstitutional an indemnification/hold harmless
requirement on the grounds that the absence of an indigency waiver
suppressed more speech than was necessary and thus was not narrowly
tailored. 332 F. Supp. 2d at 406. The analysis did not thus turn
on the availability of alternative means of expression (which the
district court had found were available). To the extent that the
two cases are comparable, we disagree with the narrow tailoring
conclusion in Van Arnam.
-56-
especially emphasized -- were insufficient because they are too
narrow and marginal as compared with main streets, thereby perhaps
dampening the number of protestors able to march and the amount of
attention attracted. But while a sidewalk march might, for these
and other reasons, seem less appealing to some protestors than a
street march, it nonetheless provides a prominent route along major
thoroughfares for dissemination of a message. As Gregoire stated
in his affidavit, several groups have used sidewalk marches to
engage in expressive activities, indicating the availability of the
sidewalk alternative and its appeal to some persons.
Further, as in Stonewall, the availability of gathering
places for protests, here including especially the state house
steps, with its potential for media coverage, demonstrates the
ample range of speech alternatives in the City. "While the First
Amendment does not guarantee the right to employ every conceivable
method of communication at all times and in all places, a
restriction on expressive activity may be invalid if the remaining
modes of communication are inadequate," Members of City Council of
City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812
(1984) (citation omitted), but an ordinance does not fail for lack
of adequate alternatives so long as there are avenues for "the
general dissemination of a message." Frisby, 487 U.S. at 483-84
(ban on picketing in public forum upheld where alternatives
included entering neighborhoods alone or in groups, going door-to-
-57-
door, distributing literature through the mails, or contacting
residents by telephone).
This Circuit has upheld in other contexts alternative
means of communication despite diminution in the quantity of
speech, a ban on a preferred method of communication, and a
reduction in the potential audience. Globe Newspaper Co. v. Beacon
Hill Architectural Comm'n, 100 F.3d 175, 192-94 (1st Cir. 1996)
(holding that a ban on newspaper boxes in historic district met the
intermediate scrutiny test in that it was narrowly tailored and
newspapers had ample alternative channels of communication in the
same area); see also D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50,
59 (1st Cir. 1999) ("The essence of this question is not 'whether
a degree of curtailment' of speech exists, but rather 'whether the
remaining communicative avenues are adequate.'" (quoting Nat'l
Amusements, 43 F.3d 731, 745 (1st Cir. 1995)). In upholding a ban
on newspaper boxes in the historic Beacon Hill neighborhood of
Boston, we concluded, "The First Amendment does not guarantee a
right to the most cost-effective means of distribution or the rent-
free use of public property." Globe Newspaper Co., 100 F.3d at
193.
The plaintiffs have access to numerous speech
alternatives, making a fee waiver to march in the streets
unnecessary. Before ending the inquiry, however, we address the
-58-
district court's reference to the possibility that sidewalks might
themselves be subject to a parade permit requirement.
2. Free Availability of Sidewalks
The district court's conclusion that sidewalk marches "at
least arguably" may be subject to permitting (and thus subject to
attendant fees) is not unreasonable based simply on the language of
the ordinance, but it contradicts the overwhelming evidence in the
record that Augusta does not interpret, and has not interpreted,
its own parade ordinance in this manner. Gregoire testified in his
March 2004 affidavit that sidewalk marches are free and require no
permit. In his 2005 supplemental affidavit, he said he had
informed Sullivan of that fact in anticipation of the planned March
2004 protest and offered to assist his group with a free sidewalk
march prior to the start of the instant litigation. Though certain
other of Gregoire's proffers of limiting constructions regarding
other provisions of the parade ordinance, supra, came too late or
were too vague to be considered authoritative interpretations, his
interpretation of the sidewalk marches is one apparently followed
by the City from before the litigation. Gregoire's supplemental
affidavit in 2005 listed seven permit-fee and fee-free sidewalk
marches which had taken place in the previous year, indicating a
well-established practice of allowing sidewalk marches without
requiring a permit or a fee. We accordingly disagree with the
district court's suggestion that sidewalk marches might be excluded
-59-
as genuine alternatives for persons unable to afford a permit to
march on city streets.
It is obviously not simple to select out those people and
causes whose indigency is such as to warrant giving them, as it
were, a free pass. Such provisions for indigency exceptions do
exist in the ordinances of some cities, e.g., Pittsburgh,
Minneapolis, and Los Angeles. Whether a particular city, like
Augusta, wishes to enact and deal with the administration of such
an exception is up to it and its government. Our conclusion is
simply that there are sufficient alternatives for speech as not to
require, constitutionally, that Augusta provide an indigency
exception here.
In all events, the Supreme Court has addressed the
question of parade permit fees in some detail in Forsyth. It has
not suggested that an indigency exception is constitutionally
required. If one is to be created under the aegis of the First
Amendment, surely that is for the Supreme Court to decide in the
first instance. There is a vast number of areas in which a lack of
funds may disadvantage an individual, and a constitutional
determination that in civil matters an indigent need not pay costs
ordinarily imposed on others is a matter to be approached with some
caution.
-60-
e. Abstention and Saving Constructions
The district court observed that it did not take lightly
its conclusion that the ordinances at issue here are
unconstitutional. It dismissed the possibility of abstention or
certification to the state court, however, because the resolution
is not "fairly subject to an interpretation which will render
unnecessary or substantially modify the federal constitutional
question." Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482
U.S. 569, 575-76 (1989). A district court's abstention ruling is
reviewed on appeal for abuse of discretion. Sheerbonnet, Ltd. v.
American Express Bank, 17 F.3d 46, 48 (2d Cir. 1994). The court
did not abuse its discretion here in declining to abstain or
certify any of the issues to the state court.
D. Conclusion
We affirm the district court's determination that
sections 13-5(a), to the extent that it requires thirty days'
advance notice, and 13-5(c), to the extent that it requires a
permit applicant to meet with the Police Chief, are
unconstitutional; and reverse the district court's invalidation
(for grant of excessive discretion) of 13-5(e), the fee provision.
We affirm, however, the district court's holding that the $478.55
fee overcharge to Sullivan was unconstitutional. We reverse the
district court's determination that plaintiffs had standing to
challenge the MOGO and that the absence of an indigency requirement
-61-
in section 13-5(e) is unconstitutional. We vacate the district
court's rulings that provisions of the MOGO are unconstitutional.
Each side shall bear its own costs.
- Dissenting Opinion Follows -
-62-
LIPEZ, Circuit Judge, dissenting in part. I agree with
Judge Campbell's excellent opinion in all but one respect. Because
there is a world of difference between marching down the main
street of a city and being confined to a sidewalk or park to
communicate one's message, I do not agree that the City's parade
ordinance complies with the First Amendment without an indigency
exception. All citizens, not only those who can afford the cost of
traffic control, have a right to express their views on matters of
public concern in the most powerful of our nation's traditional
public fora. See Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943)
("Freedom of speech . . . [is] available to all, not merely to
those who can pay their own way."). Therefore, I respectfully
dissent from that portion of the majority opinion allowing Augusta
to impose parade permit fees without regard to an applicant's
ability to pay.
I.
A. Fundamental Rights and Indigents
The right to free speech embodied in the First Amendment
is a fundamental constitutional guarantee, and access to public
spaces to speak on matters of public concern has long been a
concomitant privilege of the right of expression. The Supreme
Court has recognized that use of the streets and other public
places has
from ancient times, been a part of the
privileges, immunities, rights, and liberties
-63-
of citizens. . . . [S]treets and parks . . .
have immemorially been held in trust for the
use of the public and, time out of mind, have
been used for purposes of assembly,
communicating thoughts between citizens, and
discussing public questions.
Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.);
see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group
of Boston, 515 U.S. 557, 579 (1995) ("Having availed itself of the
public thoroughfares 'for purposes of assembly [and] communicating
thoughts between citizens,' the [petitioner] is engaged in a use of
the streets that has 'from ancient times, been a part of the
privileges, immunities, rights, and liberties of citizens.'")
(quoting Hague, 307 U.S. at 515); Perry Educ. Ass'n v. Perry Local
Educators' Ass'n, 460 U.S. 37, 45 (1983) (noting that streets and
parks are "[a]t one end of the spectrum" among "places which by
long tradition or by government fiat have been devoted to assembly
and debate").
In this case, plaintiffs claim that their access to the
"public streets, the quintessential traditional public fora," Int'l
Soc. for Krishna Consciousness v. Lee, 505 U.S. 672, 676 (1992)
(citation omitted), may not be denied based on their inability to
pay the required fees. In many contexts, disparities attributable
to wealth are not of constitutional significance. See Kadrmas v.
Dickinson Pub. Schs., 487 U.S. 450, 458 (1988) ("We have previously
rejected the suggestion that statutes having different effects on
the wealthy and the poor should on that account alone be subjected
-64-
to strict equal protection scrutiny."). Nevertheless, in multiple
settings involving fundamental rights, the Supreme Court has held
that it is unconstitutional to deny access to indigents. See,
e.g., M.L.B. v. S.L.J., 519 U.S. 102, 114-16, 123-24 & n.14 (1996)
(striking down Mississippi statute conditioning appeal of order
terminating parental rights on advance payment of court fees and
noting that "fee requirements ordinarily are examined only for
rationality" but that exceptions have been made under equal
protection principles when a "fundamental interest [is] at stake");
Lubin v. Panish, 415 U.S. 709, 718 (1974) ("[I]n the absence of
reasonable alternative means of ballot access, a State may not,
consistent with constitutional standards, require from an indigent
candidate filing fees he cannot pay."); Boddie v. Connecticut, 401
U.S. 371, 374 (1971) (relying on due process principles to hold
that the State may not deny a divorce to a couple based on
inability to pay court costs); Griffin v. Illinois, 351 U.S. 12,
17-19 (1956) (relying on due process and equal protection
principles to invalidate a state requirement that a defendant pay
for a trial transcript as a prerequisite to appeal and holding that
an indigent defendant has an equal right of access to appellate
review of a conviction where a State generally affords such
review); cf. Kadrmas, 487 U.S. at 465 (rejecting plaintiffs'
claimed entitlement to free school bus transportation because "the
-65-
statute challenged in this case discriminates against no suspect
class and interferes with no fundamental right").
In concluding that some degree of public subsidy is
necessary in these contexts, the Court relied on equal protection
or due process principles, or both,16 and applied heightened review
because of the fundamental interests at stake. See M.L.B., 519
U.S. at 115-16 (noting that, "[a]bsent a fundamental interest or
classification attracting heightened scrutiny, . . . the applicable
equal protection standard 'is that of rational justification'")
(quoting Ortwein v. Schwab, 410 U.S. 656, 660 (1973) (per curiam)).
Under such heightened review, "the State's need for revenue to
offset costs" was insufficient justification for denying equal
access to individuals of limited economic means. See M.L.B., 519
U.S. at 123.
The Court's discussion in M.L.B. sheds light on the
nature of the rights triggering heightened scrutiny of government
fees. There, the respondents had asserted that prior case law
established that the government "'need not provide funds so that
people can exercise even fundamental rights'" and argued that a
16
The dual rationale arises in the judicial access cases,
where the due process concern relates to the "essential fairness of
the state-ordered proceedings anterior to adverse state action" and
the equal protection concern "relates to the legitimacy of fencing
out would-be appellants based solely on their inability to pay core
costs." M.L.B., 519 U.S. at 120. However, Justice Ginsburg noted
in M.L.B. that most of the decisions used an equal protection
framework. Id.
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subsidy for the M.L.B. parent would conflict with cases
"recognizing that the Constitution 'generally confer[s] no
affirmative right to governmental aid, even where such aid may be
necessary to secure life, liberty, or property interests of which
the government itself may not deprive the individual.'" 519 U.S.
at 124-25 (citation omitted).17 In response, the Supreme Court
distinguished the cited cases as involving efforts to obtain "state
aid to subsidize their privately initiated action or to alleviate
the consequences of differences in economic circumstances that
existed apart from state action." Id. at 125.
The plaintiffs here neither claim entitlement to benefits
the state has made available in limited circumstances – such as tax
breaks or Medicaid funding – nor otherwise invoke an "affirmative
right" to governmental assistance to meet personal needs or private
concerns. To the contrary, they invoke an explicit constitutional
right to speak in a forum that the government holds in trust for
just such a purpose. Their claim to this forum implicates core
First Amendment values. The plaintiffs sought to speak on matters
of public concern relating to national and international affairs.
17
Among the cases cited were Regan v. Taxation with
Representation of Wash., 461 U.S. 540 (1983), which rejected a
nonprofit organization's claims, on First Amendment and equal
protection grounds, that they were entitled to receive tax
deductible contributions to support their lobbying activity, and
Harris v. McRae, 448 U.S. 297 (1980), which held that women seeking
medically necessary abortions were not entitled to Medicaid
funding.
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"[T]he Court has frequently reaffirmed that speech on public issues
occupies the 'highest rung of the hierarchy of First Amendment
values,' and is entitled to special protection," Connick v. Myers,
461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborne Hardware Co.,
458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467
(1980)). The First Amendment's explicit right "peaceably to
assemble" lends further weight to their interest in a public
gathering to address common concerns. See, e.g., Cox v. New
Hampshire, 312 U.S. 569, 574 (1941) (noting that regulation of use
of the streets implicates "the right of assembly and the
opportunities for the communication of thought and the discussion
of public questions").
Moreover, public speech is not a self-centered pursuit;
it is speech for "the public." Any assumption that the speaker is
the primary beneficiary when he uses a public forum is incorrect:
This assumption ignores the benefit of the
speaker's activities for the entire society.
His activities are part of the process by
which a democratic society makes informed
decisions. He speaks so that society can
listen and decide for itself.
David Goldberger, A Reconsideration of Cox v. New Hampshire: Can
Demonstrators Be Required to Pay the Costs of Using America's
Public Forums?, 62 Tex. L. Rev. 403, 413 (1983) (hereinafter
"Goldberger"). An individual who seeks a permit to disseminate a
message about matters of public concern in a traditional public
forum is thus exerting free speech rights that not only are
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explicitly promised by the Constitution but also are of value to
the community as a whole. Where such communal benefits exist, the
government's countervailing interest in recouping costs solely from
the individual is weaker.
First Amendment rights are not absolute, however, and
indigency does not alter that principle. As the majority explains,
the government may impose reasonable time, place and manner
restrictions on the exercise of First Amendment rights, "provided
the restrictions 'are justified without reference to the content of
the regulated speech, that they are narrowly tailored to serve a
significant governmental interest, and that they leave open ample
alternative channels for communication of the information.'" Ward
v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v.
Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)); see
also City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.
789, 812 (1984) ("[A] restriction on expressive activity may be
invalid if the remaining modes of communication are inadequate.");
Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 100 F.3d
175, 186 (1st Cir. 1996). I therefore must consider whether the
fee requirement in the parade ordinance satisfies this three-part
inquiry.
The first prong is easily met here. It is undisputed
that Augusta's parade ordinance is content neutral. On its face,
the ordinance also is narrowly tailored to serve the government's
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recognized interest in recovering the costs of administration,
traffic-control and clean-up associated with parades held on public
streets. See Forsyth County v. Nationalist Movement, 505 U.S. 123,
136 (1992) ("[R]aising revenue for police services . . .
undoubtedly is an important government responsibility . . . .");
Cox, 312 U.S. at 576 (approving fees limited to administrative
expenses and "'to the maintenance of public order in the matter
licensed'") (quoting state court's construction of the challenged
statute). As discussed above, however, such fees are subject to
heightened review in the context of First Amendment rights. See
M.L.B., 519 U.S. at 115-16; Casey v. City of Newport, 308 F.3d 106,
110-11 (1st Cir. 2002). They cannot survive such scrutiny if
individuals unable to pay the fees would be denied an adequate
public forum for speaking on issues of public importance – the
concern addressed by prong three of the time, place and manner
inquiry.
Plaintiffs' claim that they are constitutionally entitled
to a fee waiver thus turns on whether the City offers an adequate
alternative to a street march for disseminating a message that
concerns a public issue.18 As I shall explain, I share the district
court's view that the options proffered by the City fall short of
18
My analysis considers only speech on matters of public
concern, the type of expression for which the plaintiffs in this
case sought parade permits.
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the constitutional standard. See Sullivan v. City of Augusta, 406
F. Supp. 2d 92, 126 (D. Me. 2005).19
B. The Adequacy of the Available Alternatives
In finding that Augusta offered plaintiffs no adequate
alternatives to a street march, the district court concluded that
the parade ordinance arguably embraced sidewalks as well as
streets. I agree with the majority that the ordinance should not
be read in that manner. The City's past practice sufficiently
demonstrates that the ordinance does not extend to sidewalks and
that sidewalks are thus an available free alternative to the
streets, along with parks and the Statehouse steps. The question
thus becomes whether streets provide such a unique forum for the
communication of views that other public fora, including sidewalks,
cannot be deemed adequate alternatives.
That assessment necessarily requires an examination of
the speaker's objectives – both in terms of the message she wishes
to communicate and the audience she seeks to reach. Still, the
19
The majority opinion notes that, despite the Supreme Court's
consideration of parade permits in some detail in Forsyth, the
Court did not there "suggest[] that an indigency exception is
constitutionally required." The indigency issue was not before the
Court in Forsyth. The Court granted certiorari in Forsyth "to
resolve a conflict among the Courts of Appeals concerning the
constitutionality of charging a fee for a speaker in a public
forum." 505 U.S. at 129. The five justices in the Forsyth
majority bypassed the question of the permissible size of a fee,
concluding that the challenged ordinance was invalid because it
lacked procedural safeguards and tied the fee to the content of
speech. Id. at 137.
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match between the desired forum and a substitute need not be
perfect: "'[T]he lens of inquiry must focus not on whether a
degree of curtailment exists, but on whether the remaining
communicative avenues are adequate.'" Globe Newspaper, 100 F.3d at
193 (quoting Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731,
745 (1st Cir. 1995)).
In assessing adequacy, we have been particularly
sensitive to the ability of a party to disseminate its message to
the same general audience despite the restrictions at issue. In
Globe Newspaper, we considered the validity of a ban on newsracks
in the Beacon Hill Historical District of Boston. 100 F.3d at 178.
We noted that the regulation did not prevent the plaintiff
newspapers from selling their publications in the District by means
of street vendors, thereby accomplishing their objective "in the
very public forum – the District's sidewalks – from which the
newsracks are banned." 100 F.3d at 193.
The Supreme Court reached a similar conclusion in City
Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789
(1984), which involved a challenge to an ordinance banning all
posted signs, including political campaign posters, in the City of
Los Angeles. The Court found that the ban did "not affect any
individual's freedom to exercise the right to speak and to
distribute literature in the same place where the posting of signs
. . . is prohibited." Id. at 812. Similarly, in National
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Amusements, we upheld a town bylaw prohibiting the showing of
movies between 1 a.m. and 6 a.m. despite the appellant's assertion
that the regulation "foreclose[d] the opportunity to communicate
its message to a distinct segment of the movie-going public" –
those who would attend only a midnight showing. 43 F.3d at 745.
Although we acknowledged that the bylaw would "diminish[] the total
quantity of appellant's speech in some measure, and simultaneously
curtail[] its opportunity to communicate" with patrons who
preferred midnight shows, we concluded that "thwarting such an
idiosyncratic preference cannot be equated with a denial of
adequate avenues of communication." Id. In each of these cases,
while some potential recipients of the message may have been
missed, the message could still reach the intended audience.
In this case, plaintiff Sullivan sought a parade permit
in February 2004 on behalf of a group known as the March for Truth
Coalition, which advocates the "worldwide end of war and empire-
building" as well as social and economic reform. Plaintiff
Dansinger sought a permit to hold a peace march and rally in
conjunction with the Million Worker March to be held in Washington,
D.C., in October 2004.20 Both proposed parades were thus aimed at
20
Plaintiffs' Statement of Material Facts reported that
Sullivan sought to participate in the march "as a way of expressing
his opposition to the war in Iraq and as a way of publicly
advocating the need for affordable health care, veterans' rights
and benefits, and living wage jobs, and as a way of associating
himself publicly with individuals and groups who share his views."
According to the Statement, Dansinger sought to march "as a way of
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shaping public attitudes about matters of public policy – the type
of political speech that long has been associated with street
marches.
Of the available free alternatives, it is easy to
conclude that parks and similar fixed sites where speakers may
congregate are not adequate alternative locations for achieving the
objectives of street marches. A stationary gathering whose message
will be delivered to only the finite group of non-participants who
also happen to be in that spot or travel by it is considerably
different from a march that inevitably will come into contact with
waves of outsiders. A march down Main Street will display the
message to pedestrians, business owners, customers, and even
motorists who encounter the periphery of the procession while being
re-routed. Although television and newspaper coverage could
enlarge the audience for a stationary protest, that possibility
depends on the editorial judgments of the media, and any message
actually disseminated would be both limited in scope and lacking
the immediacy of personal contact. If plaintiffs' objective had
been to demand that state legislators take particular action on
pending legislation, the City's assertion that the Statehouse steps
were an adequate alternative would have more force. Plaintiffs,
expressing his opposition to the war in Iraq, supporting the
Million Worker march and publicly advocating the need for economic
justice in America, and to associate with others to advocate
effectively for those goals."
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however, sought to persuade as many members of the public as they
could reach to join their efforts to advocate for changes in public
policy.
In finding that the City could not constitutionally
"block indigents from using the public streets to convey their
message," the district court relied on the opinion of plaintiffs'
expert, Joe H. Bandy, III, a sociology professor at Bowdoin College
with a special expertise in the study of social movements. See
Sullivan, 406 F. Supp. 2d at 124-25. Professor Bandy confirmed the
superiority of "moving speech" for communicating a political
message:
With a march that moves through public
streets, the demonstrators can bring their
protest message to a variety of different
audiences, audiences that are not a part of
the activists' direct constituency but the
broader public. . . . [B]y protesting through
a format that moves through different public
spaces, a march is more likely to gain the
attention of the media and political leaders
than if the demonstration were localized in
one area that did not inconvenience the
general public in some way.
Bandy Declaration, 1/20/05, at 3, App. at 111.
While large gatherings in public places can sometimes
attract similar attention, the force of a message conveyed by the
more typical small protest group will be much greater if the group
is marching down the city's main thoroughfares, displacing other
people's daily routines, than if it is confined to a park or the
Statehouse steps. See Gary Wiseman, Note, Paying for Free Speech:
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The Continuing Validity of Cox v. New Hampshire, 64 Wash. U.L.Q.
985, 988 n.16 (1986) (hereinafter "Wiseman") ("In the absence of
spectators, even the most exciting demonstration lacks force.").
Therefore, when a speaker seeks to motivate the general public
about a matter of public policy, the opportunity to communicate
from a fixed location will rarely be an adequate substitute for a
march down city streets.
Sidewalks, however, present a closer question. Like the
street march, a sidewalk march provides access to a constantly
changing audience that will likely include many of the same
individuals who would observe a procession moving down the middle
of the street. Although the City notes that a sidewalk procession
would be viewed by more motorists than a street march because the
streets would be open and cars would be able to travel directly
past the procession, that theoretical advantage is illusory. Such
motorists will of necessity be focused on traffic conditions and
will be unable to give other than incidental attention to the
parade.21
Moreover, it is not only the size of the crowd on the
sidelines that affects the message being conveyed. If a march is
21
Mass marches alongside well traveled roads also have a long
history and can have dramatic communicative effect. See, e.g.,
Williams v. Wallace, 240 F. Supp. 100, 104-05, 107-08 (D.C. Ala.
1965) (describing disrupted Selma-to-Montgomery voting rights march
on March 7, 1965, and proposal for a subsequent march later that
month).
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confined to the sidewalks, the perception that space is limited,
and that fewer marchers can therefore be accommodated, will reduce
the number of participants. The district court reasonably accepted
appellees' assertion that safety concerns "may deter some would-be
participants" from joining a sidewalk march because of the need to
cross traffic and the lesser police presence. Sullivan, 406 F.
Supp. 2d at 125. Indeed, such concerns are likely to suppress the
number of spectators as well, with shoppers and others altering
their routes to avoid the sidewalk congestion. The resulting
reduction in the number of marchers, as well as spectators, dilutes
the message that is delivered:
[B]y reducing the number of participants or
spectators, a speaker forfeits other
advantages of size. A mass demonstration
"conveys an image of power to bystanders and
participants alike, reinforces the group's
commitment to its cause, . . . and appears to
circumvent the elite's power to control mass
communication."
Wiseman, 64 Wash. U.L.Q. at 988 n.16 (quoting Stanley Ingber, The
Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J. 1, 41
n.7); see also Eric Neisser, Charging for Free Speech: User Fees
and Insurance in the Marketplace of Ideas, 74 Geo. L.J. 257, 297
(1985) (hereinafter "Neisser") ("[T]hose who hold unpopular,
unknown, or unrepresented views can express the strength of their
position (when allowed in the public marketplace of ideas) only
through their numbers.").
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Street marches have the distinct advantage of allowing
more participants to march side-by-side, giving the demonstration
– and its message – a more commanding presence. Professor Bandy
observed that the narrowness of sidewalks can affect both the
logistics of a march and the strength of the message: "[A]s a
matter of logistics, having a large number of people file in a very
narrow pathway would make a more snake-like procession rather than
a mass rally procession. This narrowing of the demonstration would
likely dampen the message because the demonstration would not look
as large to passers by or the media." See Bandy Declaration at 5,
App. at 113.
The large signs and banners we have come to expect as
part of a parade cannot be displayed across the narrower width of
a sidewalk, and the logistical difficulty of carrying such
oversized messages front-to-back along the edge of the sidewalk
undoubtedly would discourage their use. No matter how long the
procession, a small band of protesters carrying small signs simply
does not communicate the same dramatic image of massive support as
a crowd walking six or eight abreast carrying street-wide signs.
Thus, excluding speakers from the streets does not simply relocate
their message. The strength of the message is measurably
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diminished by the perception that it lacks support from the
"masses." See Bandy Declaration at 5, App. at 113.22
While the numbers – both real and perceived – are
important, they are not the only relevant factor. The tradition of
a parade as a public event means that a street march commands our
attention in a way that a sidewalk procession does not. As a
community, we look forward to parades, we are attentive to them,
and we interrupt our everyday lives to accommodate them. A parade
is a significant community event – whether its purpose is to
recognize Irish heritage on St. Patrick's Day, to celebrate a
sports championship, or to express gratitude to soldiers on
Veterans Day. A marcher confined to the sidewalk is thus denied
the public forum that we historically have used to express our
collective sentiment. See Timothy Zick, Space, Place, and Speech:
The Expressive Topography, 74 Geo. Wash. L. Rev. 439, 460 (2006)
(hereinafter "Zick") ("In terms of communicative behavior, place is
as critical to expressive experience as voice, sight, and auditory
function.").
Moreover, in recent decades, streets have acquired
powerful symbolism as a forum for protest and political expression.
The images of 1960s civil rights activists marching through the
22
From a case-specific perspective, the sidewalk option here
was particularly limiting. Deputy Police Chief Gregoire stated in
his deposition that the sidewalks along the appellees' proposed
parade route had room for two, perhaps three, people of average
size to walk side-by-side.
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streets remain vivid, and those marches continue to inspire the
current generation of street protests on matters of global
importance – including racial injustice, war and peace, and the
inattentiveness of a community to its poor. See, e.g., Iraq Vets
Lead Syracuse March, People's Weekly World, Oct. 11, 2007
(describing September 2007 march through streets of Syracuse, N.Y.,
by more than 2,500 peace activists, including members of Fort Drum
chapter of Iraq Veterans Against the War); Rallies Support Jena
Teens, San Jose Mercury News, Sept. 21, 2007 (from New York Times
news service) (describing a "slow-moving march that filled streets,
spilled onto sidewalks and stretched for miles," with more than
10,000 demonstrators, protesting the treatment of six black
Louisiana teenagers arrested in the beating of a white classmate);
Janitors to March for Pay Increases, San Mateo County Times, June
14, 2007 (describing planned street march by "[t]housands of
Silicon Valley janitors" from East Palo Alto to "the heart of Palo
Alto's affluent downtown" as part of International Justice for
Janitors Day); Demonstrators to Turn Out for Immigration Reform,
Denver Rocky Mountain News, May 1, 2007 (reporting that "Denver and
other cities across the nation will host another round of marches
today to demonstrate that the campaign for immigration reform is
still under way"). Indeed, "taking it to the streets" is itself
part of the activist message, i.e., that ordinary people have the
power to take over the public way in their pursuit of social
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change. See Zick, 74 Geo. Wash. L. Rev. at 471 ("Parades,
protests, and demonstrations are . . . akin to temporary
appropriations of the streets. They express specific social and
political messages and give public voice to sentiments about
existing power relations.").
Sidewalk protests, by contrast, are commonly associated
with more particularized dissent. A sidewalk demonstration is
often linked to a specific business or institution, focusing
attention on what is occurring at that moment at that place –
targeting, for example, a business that refuses to serve or hire
members of minority groups, an abortion clinic, or an employer
engaged in a labor dispute.
There are exceptions, of course. As the City points out,
the civil rights movement used sidewalk marches on multiple
occasions during the 1960s. The successful Selma-to-Montgomery
voting rights march along Highway 80 in late March 1965 could not
have been more powerful if the thousands of marchers had been
walking down the middle of the road. Although such marches had
enormous impact during an extraordinary time in our country's
history, when equal rights demonstrators had widespread support and
the world's attention, the fact remains that a sidewalk march is
usually an inadequate substitute for the streets when the message
to be disseminated is unrelated to a specific locale.
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The stakes in access to the free public forum have also
become higher as other methods for reaching mass audiences have
grown more expensive and out of reach for the average citizen.
[A]ll speakers cannot gain access to all
forums. For example, many speakers cannot
afford television or radio broadcasting time,
and speakers espousing unconventional views
may find the mass media unreceptive. For this
reason, public streets and parks, which are
accessible to speakers regardless of their
financial resources or media appeal, are
vitally important public forums. Maintaining
free access to public streets and parks helps
insure a market composed of a wide range of
competing ideas.
Wiseman, 64 Wash. U. L. Q. at 986 (footnotes omitted); see also
Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022, 1036
(9th Cir. 2006) ("As traditional public fora, parks, sidewalks, and
streets 'provide a free forum for those who cannot afford newspaper
advertisements, television infomercials, or billboards.' Those
fora must not be regulated too restrictively, lest they become
unavailable to those who have little or no recourse to other, often
costly, areas for public discourse.") (citation omitted)); Bandy
Declaration at 7, App. at 115 ("[S]ocial movements have none or
very few alternative methods to communicate their message other
than low-cost demonstrations in public spaces and streets.");
Neisser, 74 Geo. L.J. at 297.23
23
Professor Neisser also noted the importance of ensuring free
public fora:
The first amendment may not mandate or even tolerate
affirmative government action to overcome the disparities
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Although the internet has provided new fora for
communicating with large numbers of people, websites, blogs and
other publicly accessible online opportunities are not substitutes
for the face-to-face experiences that have, "from ancient times,
been a part of the privileges, immunities, rights, and liberties of
citizens." See Menotti v. Seattle, 409 F.3d 1113, 1174 (9th Cir.
2005) (Paez, J., concurring in part and dissenting in part)
("'[T]here is no internet connection, no telephone call, no
television coverage that can compare to attending a political rally
in person . . . .' Public protests are at the heart of the First
Amendment and are critical for incubating civic engagement and
encouraging spirited debate." (quoting Hodgkins v. Peterson, 355
F.3d 1048, 1063 (7th Cir. 2004)); Thomas P. Crocker, Displacing
Dissent: The Role of 'Place' in First Amendment Jurisprudence, 75
Fordham L. Rev. 2587, 2590 (2007) ("[T]he Internet does not provide
for serendipitous occasions to encounter others face-to-face or to
discover the new or the strange in both a social and public
in communicative effectiveness wrought by the
marketplace's pricing structure and the differing
financial resources of competing groups. Yet, if the
first amendment is to assure a safety valve for
dissatisfaction, genuine discussion of public policy,
ascertainment of new scientific truths or cultural forms,
and individual self-development, the public system of
expression must, at a minimum, avoid replicating the
private market's price structure and thereby reinforcing
its inequities.
74 Geo. L. J. at 297 (footnotes omitted).
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setting."); Zick, 74 Geo. Wash. L. Rev. at 484 ("There is no
question that an abundance of speech takes place in these new
places; but courts must recognize that this speech is qualitatively
and, quite often, quantitatively different from speech in real
places."). The streets thus remain the only publicly accessible
forum that offers speakers both the immediacy of personal contact
and – in contrast to sidewalks – the realistic potential for
attracting a large audience and widespread attention with a
powerful message undiluted by space constraints.
To be sure, the Constitution does not guarantee every
speaker her forum of choice. See, e.g., Heffron v. Int'l Soc. for
Krishna Consciousness, 452 U.S. 640, 647 (1981) ("It is [] common
ground . . . that the First Amendment does not guarantee the right
to communicate one's views at all times and places or in any manner
that may be desired."). As noted earlier, an alternative need not
have precisely the same impact to be "ample," see Taxpayers for
Vincent, 466 U.S. at 812; Globe Newspaper, 100 F.3d at 193.
However, under any meaningful standard of heightened review, that
alternative forum cannot be ample if it lacks the qualities that
make the streets a uniquely powerful forum for expression, and
thereby leaves indigent speakers and the public they seek to
influence with a substantially different and diminished First
Amendment experience. In upholding the sign ordinance in Taxpayers
for Vincent, the Court concluded that there was "no reason to
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believe" the expressive benefits of posting signs on public
property could not be obtained through other means. 466 U.S. at
812. Noting the absence of a traditional right of public access to
utility poles for purposes of communication "comparable to that
recognized for public streets and parks," id. at 814, the Court
observed:
Notwithstanding appellees' general assertions
in their brief concerning the utility of
political posters, nothing in the findings
indicates that the posting of political
posters on public property is a uniquely
valuable or important mode of communication,
or that appellees' ability to communicate
effectively is threatened by ever-increasing
restrictions on expression.
Id. at 812.
Here, by contrast, we are considering access to
"'[t]raditional public forum property,'" which "'occupies a special
position in terms of First Amendment protection,'" id. at 813
(quoting United States v. Grace, 461 U.S. 171, 180 (1983)). And,
as I have described, the communication difference between the
streets and sidewalks is substantial, despite their physical
proximity. A speaker whose march may proceed down the middle of
Main Street has numerous advantages – larger numbers of spectators
and participants, the space to accommodate bolder and bigger signs,
the focused attention drawn by a parade, and the symbolic power of
"taking it to the streets."
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This case implicates what Taxpayers for Vincent did not:
"a uniquely valuable or important mode of communication," 466 U.S.
at 812, that has "immemorially been held in trust for the use of
the public," Hague, 307 U.S. at 515. Because a message
communicated in the streets is uniquely powerful, a speaker in
Augusta who is unable to pay the permit fee to hold a street march
has no adequate alternative. That fee barrier is particularly
unacceptable given the government's role as trustee for the public
in providing safe access for expressive and other uses of the
streets. See Cox, 312 U.S. at 574. Consequently, the Constitution
requires that the city's parade ordinance include an indigency
exception.
II.
The City maintains that providing a fee exception for
indigents would be virtually impossible to administer. Without
minimizing the challenges of designing and implementing such a
system, there is experience to the contrary. Other cities have
included indigency waiver provisions in their schemes, and have
adopted various approaches for determining eligibility. In
Pittsburgh, for example, a sponsor of a parade or other expressive
event protected by the First Amendment will not be charged the
application fee or any other costs – including for traffic control
– upon a showing of indigency. To establish indigency, the event
sponsor must submit a notarized affidavit certifying that:
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(1) The costs to be imposed exceed the
available resources of the
sponsor/organization and the
sponsor/organization does not reasonably
foresee such funds becoming available within a
reasonable period after the Event; and
(2) The sponsor is not charging participation
fees or other admittance fees to the general
public for the Special Event and has no other
sponsor that is underwriting costs.
Pittsburgh, Pa., Code of Ordinances § 470.06(d)(1), (2).24 The
Minneapolis ordinance sets a $25 parade permit fee and also
requires applicants – without expense to the city – to
(1) . . . provide either authorized civilian
or police personnel at all intersections
requiring traffic-control personnel.
(2) . . . provide volunteers to monitor the
barricades at all intersections not requiring
traffic-control personnel, as determined by
the department of public works and the police
department.
(3) . . . provide, install and remove the
barricades, signs and delineation equipment as
directed by either the director of public
works or the chief of police or their
designees.
24
Pittsburgh's application fee for "First Amendment Activity"
is set at an amount that "reflects the cost of evaluation and
scheduling the event." § 470.04. The city also requires payment
of "cost recovery fees" for the cost of providing public safety and
public works services. § 470.06. The total for the application
and cost recovery fees for parades may not exceed specified amounts
that vary depending on the parade's timing and duration. For
example, the maximum charge for a weekday parade lasting no more
than two hours is $500 while the maximum is $3,000 for a parade on
a weekend or city holiday that lasts more than two hours. § 470.04.
However, the city assumes the first $750 of "all costs associated
with First Amendment Activity, Parades, community events and block
parties." § 470.06(d). Costs for city services that exceed $750
are split equally between the City and the Special Event sponsor,
with parades being subject to the maximum fees stated in § 470.04.
Id.
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(4) . . . defend and hold the city harmless
from all claims, demands, actions or causes of
action, of whatsoever nature or character,
arising out of or by reason of the conduct of
the activity authorized by such permit,
including attorney fees and expenses.
Minneapolis, Minn., Code of Ordinances § 447.120. However, the
city provides an indigency exception "[f]or individuals and
organizations with limited financial means" if "such burdens
substantially threaten the ability of such individuals and
organizations to obtain a parade permit." § 447.150. The director
of public works may waive the parade requirements under the
following circumstances:
(1) All parade applications. The parade
applicant and each person responsible for
organizing the parade must certify that each:
(1) receives public assistance, or (2)
receives average family income which is less
than one hundred twenty-five (125) percent of
the federal poverty line, or (3) cannot
support his or her family and his or herself
and also satisfy the requirements of section
447.120 without substantial hardship. . . .
(2) Parade applicants for organizations. In
addition, if the proposed parade is to be
conducted for, on behalf of, or by an
organization, the applicant shall disclose
assets held in the name of such organization.
The parade applicant must certify to the best
of his or her knowledge that the mission,
operation, or existence of the organization
will be substantially threatened if the
requirements of section 447.120 must be
satisfied by the organization.
Id.
There are undoubtedly threshold difficulties in these
systems of deciding who, in fact, qualifies for the fee exemptions.
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A determination that fees "exceed the available resources of the
sponsor/organization," or that the "existence of the organization
will be substantially threatened" if it is required to pay a parade
fee involves subjective judgments about allocation of limited
resources. Does a nonprofit need to forego mailing this month's
newsletter so the cost of postage can be reallocated to parade
expenses? Does it need to reassign parade participants who
otherwise would be carrying placards to traffic control duties?
See Goldberger, 62 Tex. L. Rev. at 410-11 (noting that "Cox
provides no standards for determining what constitutes an
oppressive charge" and that the Court did "not indicate whether a
charge that might deplete ten percent, twenty-five percent, or
fifty percent of a speaker's treasury is excessive or whether such
a charge is tolerable"); see Bandy Declaration at 7, App. at 115
("[T]here have been cases where fees imposed on movements for poor
people and the homeless in order to hold public demonstrations had
the effect of substantially straining the resources of those
organizations because they rely heavily upon volunteer organizers
and have no offices or regular sources of income.").
These sorts of questions, however, speak to the problems
inherent in charging anyone for the exercise of First Amendment
rights in streets and other public ways. Even those for whom a
parade fee is affordable may be deterred by the prospect of paying
several thousand dollars to finance their message. Indeed, the
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fees deemed permissible – for traffic control, for example – are
for "the same services [] routinely provided without charge to
nonspeech users of streets, sidewalks, and parks," thereby
"devalu[ing] speech activities in comparison to nonspeech
activities." Id. 411; see also Neisser, 74 Geo. L.J. at 332
("[P]olice service fees inherently discriminate against planned
public gatherings for expressive purposes, which the first
amendment is designed to protect.").
Hence, there is a plausible policy argument that the
responsibility for financing First Amendment activities in public
fora should belong to the community at large. At a minimum, a
government subsidy is a First Amendment imperative when individuals
who lack the means to pay required fees seek access to a uniquely
powerful public forum for the purpose of speaking on a matter of
public concern.
The costs need not be prohibitive for local governments, nor
necessarily borne by a single entity. As the likely target of
protestors with statewide concerns, a city that serves as the state
capital – like Augusta – reasonably could look to state coffers to
help finance street marches drawing residents from throughout the
state. See Neisser, 74 Geo. L.J. at 340-42. Alternatively,
allowing indigent applicants to provide their own traffic monitors
– perhaps with prior training provided by the police department –
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could help reduce the cost of monitoring parades.25 Other
approaches for balancing the government's interest in recouping
costs and the speaker's right of access to the streets also seem
viable: applicants for permits who lack resources may be able to
meet city fee requirements through on-the-scene fund raising if
offered the opportunity to pay after their event, or perhaps
shorter routes or time periods could be designated for such
marches, so long as the speaker's message is not improperly
compromised. Creative government officials could devise additional
solutions that meet constitutional requirements.
III.
When fundamental interests are at stake, the Supreme Court has
held repeatedly that the government may not deny equal access to
indigents based solely on their inability to pay required fees.
The right to march in the streets to disseminate a message of
public concern is at the core of the First Amendment and could not
be more fundamental. Thus, a parade ordinance that conditions
access to the streets on ability to pay cannot withstand the
heightened scrutiny applicable to such limitations because, for the
reasons I have explained, the streets are a uniquely powerful forum
for reaching a wide audience to express views on public policy. No
speaker may be denied access for such expression in that forum
25
Professor Neisser reported that such an approach was adopted
by the City of Palo Alto, California. See Neisser, 74 Geo. L.J. at
339 n.387.
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based on an inability to pay the associated costs. The district
court held correctly that "the Parade Ordinance must afford a fee
waiver for those unable to pay." 406 F. Supp. 2d at 126. I
respectfully dissent from the majority's contrary conclusion.
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