[PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT FILED
________________________
U.S. COURT OF APPEALS
ELEVENTH CIRCUIT
No. 03-11756 April 15, 2004
________________________ THOMAS K. KAHN
CLERK
D. C. Docket No.03-00042-CV-1
MARTHA BURK,
Chair, National Council of Women’s Organizations,
NATIONAL COUNCIL OF WOMEN’S ORGANIZATIONS, et al.,
Plaintiffs-Appellants,
versus
AUGUSTA-RICHMOND COUNTY,
Consolidated Government,
AUGUSTA-RICHMOND COUNTY COMMISSION, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Georgia
_________________________
(April 15, 2004)
Before ANDERSON, BARKETT and RONEY, Circuit Judges.
ANDERSON, Circuit Judge:
INTRODUCTION
Martha Burk, the National Council of Women’s Organizations, and the
Rainbow/PUSH Coalition (referred to collectively as “Burk”) appeal from the
district court’s denial of their motion for preliminary injunction in a challenge to
the constitutionality of Augusta-Richmond County’s permitting requirement for
public demonstrations in groups of five or more people. The appeal presents two
questions: (1) the facial constitutionality of requiring groups of five or more
persons to obtain a permit before publicly engaging in political expression in a
public forum; and (2) whether requiring permit applicants to submit an
indemnification agreement “in a form satisfactory” to the county attorney grants the
attorney unconstitutional discretion over permitting decisions. We find the
Ordinance unconstitutional in each respect and reverse.
A. The Augusta-Richmond County Ordinance
Section 3-4-11 of the Augusta-Richmond County Code (the “Ordinance”),
enacted in anticipation of protests during the then-forthcoming Masters Golf
Tournament held annually at the Augusta National Golf Club, states:
There shall be no public demonstration or protest, (hereinafter
collectively referred to as “event”) consisting of five (5) or more
persons on any sidewalk, street, public right-of-way or other public
property within Augusta unless a permit for same has been issued for
such event by the Sheriff of Richmond County.
2
Augusta-Richmond County Code § 3-4-11. The Code defines
“Protest/Demonstration” as “Any expression of support for, or protest of, any
person, issue, political or other cause or action which is manifested by the physical
presence of persons, or the display of signs, posters, banners, and the like.” § 3-4-
1(e). Violating the Ordinance is a misdemeanor punishable by a $1,000 fine and/or
60 days imprisonment. §§ 3-4-13; 1-6-1.
In addition to information such as the name and address of the applicant and
a description of the planned event, see §§ 3-4-11(a)(1)-(2), a permit applicant must
furnish an indemnification and hold-harmless agreement suitable to the county
attorney, § 3-4-11(a)(3). The County Sheriff may deny an application for any of
several reasons. See § 3-4-11(b)(3).
B. Procedural History
Burk sued the Augusta-Richmond County Consolidated Government, the
Augusta-Richmond County Commission, the Mayor of Augusta, and the Richmond
County Sheriff (collectively, “the County”) under 42 U.S.C. § 1983 to enjoin
enforcement of the Ordinance, claiming it violated her First Amendment right to
free speech. The district court converted Burk’s motion for a temporary restraining
order into a motion for preliminary injunction and denied it, finding that Burk
failed to prove a likelihood of success on the merits. Burk appeals that
3
determination and asks this Court to uphold her facial challenge to the Ordinance.1
Because this appeal presents pure questions of law and our disposition dictates the
outcome of the underlying claim, we accept the invitation. See, e.g., Callaway v.
Block, 763 F.2d 1283, 1287 & n.6 (11th Cir. 1985). We review the district court’s
legal conclusions de novo. This That & The Other Gift & Tobacco, Inc. v. Cobb
County, 285 F.3d 1319, 1321 (11th Cir. 2002).
DISCUSSION
A. The Constitutionality of the Permitting Provision
Burk argues that the permitting provision constitutes a facial violation of the
First Amendment by impermissibly discriminating on the basis of content of speech
in public fora2 and by granting the County Sheriff excessive discretion over
permitting decisions. Because we agree with her on content discrimination, we
decline to reach her discretion argument as it relates to the permitting requirement
generally.
Because it requires groups of five or more people to obtain permission from
1
In addition to the facial challenge Burk asserts on appeal, in the district court she also
challenged the Ordinance as applied to her. She does not appeal the denial of her motion for
preliminary injunction with respect to the as-applied claim, which is thus deemed abandoned.
With respect to the facial challenge, the County does not argue that a facial challenge is
inappropriate under these circumstances.
2
The Ordinance regulates speech on sidewalks, streets, public rights-of-way, and “any
other public property.” § 3-4-11. No one disputes that this case involves speech in public fora.
4
the County Sheriff in order to carry out a protest or demonstration, the Augusta-
Richmond Ordinance is a prior restraint on speech. See United States v. Frandsen,
212 F.3d 1231, 1236-37 (11th Cir. 2000) (“A prior restraint of expression exists
when the government can deny access to a forum before the expression occurs.”).
Prior restraints are presumptively unconstitutional and face strict scrutiny. Id. at
1237; Church of Scientology Flag Serv. v. City of Clearwater, 2 F.3d 1514, 1547-
48 (11th Cir. 1993). Nonetheless, a prior restraint may be approved if it qualifies
as a regulation of the time, place, and manner of expression rather than a regulation
of content. Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S. Ct. 2746,
2754 (1989); Coalition for the Abolition of Marijuana Prohibition v. City of
Atlanta, 219 F.3d 1301, 1316 (11th Cir. 2000). A content-neutral time, place, and
manner regulation must leave open alternative channels of communication and
survive “intermediate scrutiny,” the requirement that it not restrict substantially
more speech than necessary to further a legitimate government interest. Ward, 491
U.S. at 799, 109 S. Ct. at 2758.3 By contrast, content-based speech regulations face
“strict scrutiny,” the requirement that the government use the least restrictive
means of advancing a compelling government interest. United States v. Playboy
3
A content-neutral time, place, and manner regulation also must not vest public officials
with unbridled discretion over permitting decisions. Shuttlesworth v. Birmingham, 394 U.S.
147, 150-51, 89 S. Ct. 935, 938-39 (1969).
5
Entm’t Group, 529 U.S. 803, 813, 120 S. Ct. 1878, 1886 (2000).
Accordingly, we first inquire whether the Ordinance is content-neutral. See
Ward, 491 U.S. at 791, 109 S. Ct. at 2754. It is not. The Ordinance applies only to
“public demonstration or protest,” § 3-4-11, defined as “support for, or protest of,
any person, issue, political or other cause or action,” § 3-4-1(e). Neither in its brief
nor at oral argument has the County disputed Burk’s assertion that this language
targets “political” expression, however defined.4 Nor has the County disputed the
fact that the Ordinance leaves other speech untouched. The Ordinance therefore
classifies and regulates expression on the basis of content. Accord Hall v. Bd. of
Sch. Comm’rs, 681 F.2d 965, 970-971 (5th Cir. Unit B 1982) (“The Board has
sought to regulate that speech based upon its content: whether it is ‘political or
sectarian,’ or ‘special interest material.’ This is not regulation of ‘time, place, or
manner’ of expression.”);5 see also Consol. Edison Co. v. Pub. Serv. Comm’n, 447
U.S. 530, 533, 100 S. Ct. 2326, 2330-31 (1980) (holding content-based a regulation
that barred utility company bill inserts expressing “opinions or viewpoints on
controversial issues of public policy” but did not bar “topics that are not
4
Thus we use the term “political” as an apt shorthand term to describe the speech targeted
by the instant ordinance.
5
In Stein v. Reynolds Securities, Inc., 667 F.2d 33, 34 (11th Cir. 1982), this Circuit
adopted as binding precedent decisions issued by Unit B of the former Fifth Circuit after
September 30, 1981.
6
‘controversial issues of public policy’”).
The County argues that we must find the Ordinance content-neutral under
Hill v. Colorado, 530 U.S. 703, 120 S. Ct. 2480 (2000), and Frisby v. Schultz, 487
U.S. 474, 108 S. Ct. 2495 (1988). We disagree; we do not believe either decision
erodes our holding in Hall that targeting only political speech renders a regulation
content-based. We address each case in turn.6
In Hill v. Colorado, the Supreme Court found content-neutral a Colorado
statute that prohibited any person “within the regulated areas . . . to knowingly
approach within eight feet of another person, without that person’s consent, for the
purpose of passing a leaflet or handbill to, displaying a sign to, or engaging in oral
protest, education, or counseling with such other person.” Id. at 707, 120 S. Ct. at
2484. The County argues that if a statute regulating only those engaged in protest,
education, or counseling is content-neutral, then surely an ordinance regulating
only political protests and demonstrations is content-neutral as well.
A close reading of Hill reveals that the analogy fails. Hill relied heavily on
the notions that “[t]he principal inquiry in determining content neutrality . . . is
6
The County also argues the Ordinance is not content-based because it applies equally to
all political speech. That argument misses the mark completely. It asserts only that the
Ordinance does not discriminate based on viewpoint and fails to address the issue of subject-
matter discrimination.
7
whether the government has adopted a regulation of speech because of
disagreement with the message it conveys,” id. at 719, 120 S. Ct. at 2491 (citing
Ward, 491 U.S. at 791, 109 S. Ct. at 2754), and “government regulation of
expressive activity is ‘content neutral’ if it is justified without reference to the
content of regulated speech,” id. at 720, 120 S. Ct. at 2491 (citing Ward, 491 U.S.
at 791, 109 S. Ct. at 2754). The statute at issue in Hill was “justified without
reference to the content of regulated speech” because it did not “distinguish among
speech instances that are similarly likely to raise the legitimate concerns to which it
responds.” Id. at 724, 120 S. Ct. at 2493. The distinctions it drew were justified by
a legislative concern independent of content – protecting persons walking into
health care facilities. Id. (“[T]he statute’s restriction seeks to protect those who
enter a health care facility from the harassment, the nuisance, the persistent
importuning, the dogging, and the implied threat of physical touching that can
accompany an unwelcome approach within eight feet of a patient by a person
wishing to argue vociferously face-to-face and perhaps thrust an undesired handbill
upon her.”). In fact, the statute at issue in Hill “places no restrictions on – and
clearly does not prohibit – either a particular viewpoint or any subject matter.” Id.
at 723, 120 S. Ct. at 2493.
The Augusta-Richmond County Ordinance differs from the statute at issue in
8
Hill because it “places restrictions on” certain subject matter, political expression,
and is not “justified without reference to the content of regulated speech.” Id. at
720, 120 S. Ct. at 2491. In this case, the latter characteristic is apparent from the
poor fit between the Ordinance’s means and purported ends. Hill instructs that “[a]
statute that restricts certain categories of speech only lends itself to invidious use
[the vice of content-based regulation] if there is a significant number of
communications, raising the same problem that the statute was enacted to solve,
that fall outside the statute’s scope, while others fall inside.” Id. at 723, 120 S. Ct.
at 2493 (citing Police Dep’t of Chicago v. Mosley, 408 U.S. 92, 92 S. Ct. 2286
(1972)). The statute in Hill did not “distinguish among speech instances that are
similarly likely to raise the legitimate concerns to which it responds.” Id. at 724,
120 S. Ct. at 2493. By contrast, the Ordinance at issue in this case does distinguish
among speech instances that raise the same concerns. The Ordinance’s purported
goals are maintaining public safety, avoiding traffic congestion, keeping the peace,
and providing advance notice to law enforcement officials of public events. See §
3-4-11(b)(3). But the Ordinance regulates countless expressive activities that do
not threaten public safety, traffic, or the peace, and it fails to regulate countless
other expressive activities that do threaten the harms. For example, the ordinance
does not apply to numerous activities involving more than five people – e.g., a
9
street party, a tail-gating party, a sidewalk performance by a five-person musical
group, or even a high school band – that will likely threaten the County’s feared
harms. And the Ordinance restricts a five-person political discussion or silent sit-in
on the sidewalk’s edge even though such events are unlikely to threaten the
County’s feared harms.7 In other words, there are easily “a significant number of
communications, raising the same problem that the statute was enacted to solve,
that fall outside the statute’s scope, while others fall inside.” Hill, 530 U.S. at 723,
120 S. Ct. at 2493. Therefore, the Ordinance is not justified by its purported
content-independent goals, and the County has regulated based on content. Id. at
723-24, 120 S. Ct. at 2493.8
The County also misses the mark with Frisby v. Schultz, 487 U.S. 474, 108
S. Ct. 2495. In Frisby, the Supreme Court approved a prohibition on picketing in
7
The County’s poor focus on targeting the harm it has identified is highlighted by the
existence of a separate permitting requirement for all gatherings involving more than 1,000
people. See §§ 3-4-1(b); 3-4-3. The County cannot seriously believe that political expression
involving as few as five people is likely to disrupt traffic, disturb the peace, threaten public
safety, and require advance notice to public officials, but that other public gatherings only
threaten such harms when they involve more than 1,000 participants.
8
While an express disavowal of any intent to regulate the content of speech, as contained
in § 3-4-11(d), may be taken into account as relevant evidence, we cannot conclude that it can
nullify the clear and obvious distinction among subject matters contained in the Ordinance and
the “significant number of communications raising the same problem . . . that fall outside the
statute’s scope, while others fall inside,” Hill, id. at 723, 120 S. Ct. at 2493. In such
circumstances, we cannot conclude that there is a clear intent not to regulate the content of
speech.
10
front of individual residences. The Court accepted the ordinance as content-neutral
when construed not to exempt labor picketing. 487 U.S. at 481-82, 108 S. Ct. at
2501.
The County argues that Frisby made no mention of the possibility that the
ordinance may have been content-based because it restricted picketing, which is a
method of political protest, but did not restrict other expressive conduct. It argues
that if regulations of “picketing” are content-neutral, then regulations of “protest or
demonstration” should be content-neutral.
The County errs by failing to appreciate the difference between picketing –
which is a method of delivery of speech involving conduct without regard to any
particular message or subject matter – and the County’s definition of
“Protest/Demonstration,” which expressly targets all expression on a certain
subject matter, political speech. See § 3-4-1(e). Of course, people engaging in
picketing nearly always intend to send a message of some kind along with their
acts. However, the acts themselves – standing, marching, or holding a sign, for
example – do not involve any particular expressive content, and the conduct may
therefore be regulated without burdening any particular viewpoint or subject
11
matter.9 A content-neutral conduct regulation like those at issue in Frisby and Hill
“places no restrictions on – and clearly does not prohibit – either a particular
viewpoint or any subject matter that may be discussed,” Hill, 530 U.S. at 723, 120
S. Ct. at 2493, and it may be said about such regulations that they have nothing to
do with the content of speech but rather are imposed because of the nature of the
regulated conduct, see id. at 737, 120 S. Ct. at 2500-01 (Souter, J., concurring,
joined by O’Connor, J., Ginsburg, J., and Breyer, J.) (“The correct rule . . . is
captured in the formulation that a restriction is content-based only if it is imposed
because of the content of the speech and not because of offensive behavior
identified with its delivery. . . . The facts overwhelmingly demonstrate the validity
of [the statute at issue in Hill] as a content-neutral regulation imposed solely to
regulate the manner in which speakers may conduct themselves within 100 feet of
the entrance of a health care facility.”) (emphasis added) (citation omitted).10 Thus,
a content-neutral conduct regulation applies equally to all, and not just to those
9
Thus picketing is distinct from conduct such as flag-burning that is clearly intended to
express a particularized message. See United States v. Eichman, 496 U.S. 310, 315 (1990).
10
Justice Scalia, joined by Justice Thomas, dissenting in Hill, made this same point when
he distinguished picketing as a restriction on “a particular manner of expression.” Id. at 744, 120
S. Ct. at 2505. This point was also made by Justice Brennan, joined by Justice Marshall,
dissenting in Frisby. See 487 U.S. at 491-92, 108 S. Ct. at 2506 (“The ordinance before us
absolutely prohibits picketing ‘before or about’ any residence in the town . . ., thereby restricting
a manner of speech in a traditional public forum. Consequently, as the Court correctly states, the
ordinance is subject to the well-settled time, place and manner test.”).
12
with a particular message or subject matter in mind. Id. at 723, 120 S. Ct. at 2493
(“Instead of drawing distinctions based on the subject matter that the . . . speaker
may wish to address, the statute applies equally to used car salesmen, animal rights
activists, fundraisers, environmentalists, and missionaries.”). The same cannot be
said of the Augusta-Richmond County Ordinance because it applies to a particular
subject mater of expression, politics, rather than to particular conduct, such as
picketing.11
Finally, it is useful to contrast the Augusta-Richmond County Ordinance and
an ordinance the Supreme Court addressed in Thomas v. Chicago Park District, 534
U.S. 316, 122 S. Ct. 775 (2002). In that case, the Supreme Court found an
ordinance content-neutral and rejected a challenge under Freedman v. Maryland,
380 U.S. 51, 85 S. Ct. 734 (1965) (requiring procedural safeguards in content-
based regulatory contexts). However, the ordinance at issue in Thomas required a
11
Thus, Frisby would be more apposite if instead of prohibiting picketing in front of
individual residences, the ordinance at issue there prohibited all political expression in front of
individual residences. Like the ordinance at issue here, it would have been a content-based
regulation of expression on its face rather than a content-neutral regulation of conduct; and it
would not have been justified without reference to content because of the poor fit between its
means and purported goals.
And the instant case would be more like Frisby if the Ordinance regulated only displays
of signs, posters, or banners rather than all political expression in groups of five or more, see § 3-
4-1(e) (“[a]ny expression of support for, or protest of, any person, issue, political or other cause
or action which is manifested by the physical presence of persons”) (emphasis added), and only
in particular locations rather than in all public space, § 3-4-11.
13
permit for all public assemblies of more than 50 people, regardless of purpose. The
Court readily found that the ordinance was content-neutral, explaining that “the
ordinance . . . is not even directed to communicative activity as such, but rather to
all activity conducted in a public park. The picnicker and soccer-player, no less
than the political activist or parade marshal, must apply for a permit if the
50-person limit is to be exceeded.” 534 U.S. at 322, 122 S. Ct. at 779 (emphasis
added). By contrast, the Augusta-Richmond County Ordinance is directed only to
communicative activity, rather than to all activity, and its applicability turns solely
on the subject matter of what a speaker might say. The Ordinance regulates only
political speakers, leaving soccer-players, sidewalk performers, and tailgating
groups untouched.
Because the Ordinance is a content-based prior restraint on speech, we must
strictly scrutinize it to ascertain whether it employs the least restrictive means to
meet a compelling government interest. See Playboy, 529 U.S. at 813, 120 S. Ct. at
1886.12 Few laws survive such scrutiny, and this Ordinance is no exception. The
County could promote its goals through numerous less restrictive means. It could,
for example, target only offensive behavior or the manner of delivery of speech
12
A content-based prior restraint must also satisfy the procedural requirements of
Freedman v. Maryland, 380 U.S. 51, 85 S. Ct. 734 (1965). However, Burk does not challenge
the Ordinance on Freedman grounds.
14
without regard to viewpoint or subject matter. Or it could tailor its regulation more
closely to fit expressive instances or conduct likely to threaten the harms it fears.
Or it could enact an ordinance like that at issue in Thomas, which applies
generally, without reference to expressive content, and only to larger groups.13
Finally, it is clear that regulating as few as five peaceful protestors (e.g. silently
sitting in on the edge of the sidewalk) is not the least restrictive means of
accomplishing the County’s legitimate traffic flow and peace-keeping concerns.14
For these reasons, we readily conclude that the County has failed to carry its
burden of proving, see Playboy, id. at 816, 120 S. Ct. at 1888, that this content-
based Ordinance is sufficiently tailored to survive strict scrutiny. We hold that it is
13
Because we hold that the Ordinance is content-based and fails strict scrutiny, we need
not address Burk’s argument that because it applies to groups as small as five persons, the
Ordinance would fail even the less stringent tailoring requirement for content-neutral regulations
that the government not burden “substantially more speech than is necessary to further the
government’s legitimate interests.” Ward, 491 U.S. at 799, 109 S. Ct. at 2758. We do note that
several courts have invalidated content-neutral permitting requirements because their application
to small groups rendered them insufficiently tailored. See Douglas v. Brownell, 88 F.3d 1511,
1524 (8th Cir. 1996) (10 or more people); Grossman v. City of Portland, 33 F.3d 1200, 1206 (9th
Cir. 1994) (6 to 8 people); Community for Creative Non-Violence v. Turner, 893 F.2d 1387,
1392 (D.C. Cir. 1990) (2 or more people); Cox v. City of Charleston, 250 F. Supp. 2d 583, 590
(D.S.C. 2003) (“small gatherings or sole protestors”).
14
It is clear from the applications received by the County and the number of persons
desiring to demonstrate in a location surrounding the entrance to the Masters Tournament that the
County’s legitimate interest is very substantial. Because we find that the Ordinance is not
narrowly tailored, we need not determine whether the County’s interests are compelling.
However, as suggested in the text, the County’s interests can be protected by an appropriately
drafted ordinance or otherwise without violating the First Amendment.
15
unconstitutional.
B. The Constitutionality of the Indemnification Provision
The Augusta-Richmond Ordinance also requires permit applicants to
indemnify the County for damages arising from a planned protest or demonstration:
“[T]he applicant shall provide an indemnification and hold harmless
agreement in favor of Augusta, Georgia and its elected officials, the
Augusta-Richmond County Commission, the Sheriff of Richmond
County, and their officers, agents and employees in a form satisfactory
to the attorney for Augusta, Georgia.
§ 3-4-11(a)(3). Burk argues that this provision grants the county attorney
excessive discretion, imports content-based criteria into the permitting process, and
is overbroad and chills speech. We agree that it grants excessive discretion and
therefore decline to reach Burk’s other challenges to the provision.
Even a facially content-neutral time, place, and manner regulation may not
vest public officials with unbridled discretion over permitting decisions. See
Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51, 89 S. Ct. 935, 938-39 (1969);
Forsyth County v. Nationalist Movement, 505 U.S. 123, 130-31, 122 S. Ct. 2395,
2401-02 (1992). Excessive discretion over permitting decisions is constitutionally
suspect because it creates the opportunity for undetectable censorship and signals a
lack of narrow tailoring. See Forsyth County, 505 U.S. at 130-31, 122 S. Ct. at
2401-02; Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358, 1362 (11th
16
Cir. 1999); Miami Herald Pub. Co. v. City of Hallandale, 734 F.2d 666, 675 (11th
Cir. 1984). Therefore, time, place, and manner regulations must contain “narrowly
drawn, reasonable and definite standards,” Thomas, 534 U.S. at 324, 122 S. Ct. at
781, “to guide the official’s decision and render it subject to effective judicial
review,” id. at 323, 122 S. Ct. at 780.
We readily conclude that the indemnification provision in the Augusta-
Richmond Ordinance fails to provide adequate standards. It requires an
indemnification agreement “in a form satisfactory to the attorney for Augusta,
Georgia,” § 3-4-11(a)(3), and gives no guidance regarding what should be
considered “satisfactory.” Thus, the requirement is standardless and leaves
acceptance or rejection of indemnification agreements “to the whim of the
administrator.” Thomas, 534 U.S. at 324, 122 S. Ct. at 781 (citing Forsyth County,
505 U.S. at 133, 112 S. Ct. at 2403).
The County has virtually conceded as much by arguing only that the
requirement has been administered with flexibility and permissiveness. It argues
that the county attorney has approved a variety of indemnification agreements, and
no application has ever been denied for failure to include an agreement. The
County also frames this as a “well-established practice,” see, e.g., City of
Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 770, 108 S. Ct. 2138,
17
2151 (1988) (“The doctrine requires that the limits [on official discretion] the city
claims are implicit in its law be made explicit by textual incorporation, binding
judicial or administrative construction, or well-established practice.”), apparently
asserting that a practice of permissiveness and flexibility somehow restrains the
attorney’s discretion.
We cannot conclude on this record that the County has demonstrated a “well-
established practice,” id., that subjects the county attorney’s discretion to “narrowly
drawn, reasonable and definite standards,” Thomas, 534 U.S. at 324, 122 S. Ct. at
781. The Sheriff’s affidavit asserts that “to my knowledge and recollection, the
Sheriff’s Office has never denied a permit application for any reason related to the
failure to give an indemnification and hold harmless agreement or the particular
form of said agreement, which was provided by an applicant. In fact, I cannot
recall any application for a permit under § 3-4-11 as amended or its predecessor
being denied completely for any reason.” Even if we assume arguendo that a well-
established practice of not requiring an indemnity could nullify the clear statutory
mandate that “the applicant shall provide an indemnification,” § 3-4-11(a)(3), we
know that the instant ordinance has virtually no history, having been enacted only
18
in the month before the instant applications.15 Moreover, we also know that the
applicants during this period were also given a “sample” form of indemnification
agreement, which belies a well-established practice of non-enforcement. The
Supreme Court in Lakewood struck a permitting ordinance as facially
unconstitutional in a similar pre-enforcement challenge. 486 U.S. at 770, 108 S.
Ct. at 151 n.11. See also Forsyth County, 505 U.S. at 129-33, 112 S. Ct. at 2400-
03 (striking as facially unconstitutional an ordinance because of overly broad
discretion with respect to the fee to cover expenses associated with the permit, and
noting in footnote 10 that it was irrelevant to the facial challenge that the fee
charged in the instant situation was content-neutral, and that the “pervasive threat
inherent in its very existence . . . constitutes the danger to freedom of discussion.”).
Finally, the County cites the district court’s approval of permit fees in the
case that ultimately became Thomas in the Supreme Court. That case is inapposite.
The provision at issue there contained a precise fee schedule tied to the type of
event and number of expected attendees, and an indemnification provision
triggered by the number of people expected at the event. It left officials “little, if
any, discretion to make the type of content-based determinations that [the plaintiff]
15
We also know that an application can be denied for failure to fully complete and
properly execute any required submission, 3-4-11(b)(3)a, which includes the indemnification
agreement.
19
and the [Supreme] Court in Forsyth are concerned about.” See MacDonald v.
Chicago Park Dist., 1999 U.S. Dist. LEXIS 5692 *17-18 (N.D. Ill. 1999). Thus, it
was wholly unlike the indemnification provision at issue here.
Because we find the indemnification provision unconstitutional in its grant
of excessive discretion to the county attorney, we decline to reach Burk’s other
arguments challenging that provision.
CONCLUSION
Section 3-4-11's permitting requirement is unconstitutional as a content-
based prior restraint that is not narrowly tailored to survive strict scrutiny. The
indemnification provision is unconstitutional because it grants excessive discretion
over permitting decisions to the county attorney. The judgment of the district court
is therefore reversed, and the case is remanded for further proceedings not
inconsistent with this opinion.
REVERSED and REMANDED.
20
BARKETT, Circuit Judge, concurring:
I concur with the opinion because I agree with the Court’s holding that the
Ordinance in question ("§ 3-4-11") is content-based. I write only to add my view
that the Ordinance would fail to pass constitutional muster even if it were not
content-based.
An ordinance requiring a permit “before authorizing public speaking,
parades, or assemblies” in a traditional public forum bears a “heavy presumption
against” it as a prior restraint. Forsyth County, Ga. v. Nationalist Movement, 505
U.S. 123, 130 (1992)(internal citations omitted). To survive constitutional
scrutiny, it: “may not delegate overly broad licensing discretion to a government
official”; “must not be based on the content of the message”; “must be narrowly
tailored to serve a significant governmental interest”; and “must leave open ample
alternatives for communication.” Id. In addition to Judge Anderson’s content-
based analysis, I believe that § 3-4-11 independently fails each of these other
prerequisites to constitutionality as well. I focus my comments on the Ordinance’s
over-broad delegation of licensing discretion and its utter lack of narrow tailoring.
The Ordinance vests the Sheriff with the power to deny a permit “in whole or
in part for any reason if the Sheriff determines that the plan submitted by the
applicant will raise public safety concerns to those participating in the event or to
21
the public . . .” (emphasis added).1 I believe this is an unconstitutional grant of
unbridled discretion. See e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147,
150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (“a law subjecting the exercise of
First Amendment freedoms to the prior restraint of a license, without narrow,
objective, and definite standards to guide the licensing authority, is
unconstitutional”); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358,
1362 (1999) (“virtually any amount of discretion beyond the merely ministerial is
suspect.”).
Although the Ordinance superficially limits the Sheriff’s determination to
public safety considerations, the criteria the Sheriff may consider is vague,
undefined and completely subjective. It permits the Sheriff to deny a permit for
“any reason” if the Sheriff is satisfied that it will only “raise” public safety
concerns. “It can thus . . . be made the instrument of arbitrary suppression of free
expression of views.” Hague v. Committee of Industrial Organizations, 307 U.S.
496, 516 (1939)(striking down statute that “enable[d] the Director of Safety to
refuse a permit on his mere opinion that such refusal will prevent 'riots,
1
The Ordinance also permits the Sheriff to refuse a permit if the proposed plan “would
unduly restrict and/or congest traffic ( motor vehicle or pedestrian) on any of the public roads,
right of ways or sidewalks in the immediate vicinity of such event” (emphasis added) and if it
“would lead to an unreasonable disturbance of the peace in the area at the time of the proposed
event” (emphasis added).
22
disturbances or disorderly assemblage.”); see also Lady J. Lingerie, Inc., 176 F.3d
at 1362 (1999) (noting that even a “seemingly-innocuous fire safety provision”
presented too great of a danger that the ordinance would be used to “covertly
discriminate” against protected expression).
Unlike the dissent, I believe that Thomas v. Chicago, 534 U.S. 316 (2002) is
inapposite to this case. The ordinance in Thomas sets out thirteen "narrowly
drawn, reasonable and definite standards" for the denial of a use-permit for large-
groups of over 50 people in busy Chicago parks. Id. at 324. In contrast, Ordinance
§ 3-4-11 allows the Sheriff to deny a permit to groups 1/10th the size of those
regulated in Thomas, in virtually all public places, for “any reason” that in his own
mind raises public safety concerns. Unlike the Thomas ordinance, which requires a
finding that the intended use or activity "would present an unreasonable danger to .
. . health or safety," id. at 318 n.1 (emphasis added), Ordinance § 3-4-11 allows the
Sheriff to deny a permit merely because he believes, whether reasonably or not,
that the activity might "raise public safety concerns to those participating in the
event or to the public." Thus, besides impermissibly granting the Sheriff the power
to deny the permit based on his "mere opinion," Hague, 307 U.S. at 516, the
Ordinance impermissibly grants the Sheriff the authority to enforce a "heckler's
veto."See e.g., Forsyth County v. Nationalist Movement, 505 U.S. 123, 134-35
23
(1992); see also Church of the American Knights of the Ku Klux Klan (CAKKKK)
v. Gary, 334 F.3d 676, 680-81 (7th Cir. July 2, 2003) (It is well-established “that a
permit for a parade or other assembly having political overtones cannot be denied
because the applicant’s audience will riot. To allow denial on such a ground would
be to authorize a ‘heckler’s veto.’” (internal citations omitted)).
Furthermore, the rationales that might justify granting a government official
limited discretion in issuing permits for large-groups in a public park simply do not
extend to granting the same (or in this case more) discretion in deciding to issue a
permit to five people in all public areas. As Judge Posner, the author of the
Seventh Circuit’s decision that was affirmed by the Supreme Court in Thomas, has
recently made clear in distinguishing Thomas, “[t]he use of parks for
demonstrations involves . . . complexities not involved in street rallies.” CAKKKK
v. Gary, 334 F.3d at 683. He also noted that in Thomas the parks “were being
overwhelmed by thousands of applications.” Id. Thus, the grant of some limited
discretion in that case was fueled by the need to expeditiously process a large
volume of applications for the purpose of coordinating various types of activities in
a limited amount of space. That is not the case here.
Furthermore, contrary to the dissent's suggestion, after-the-fact judicial
review does not remedy this over-broad grant of discretion. See City of Lakewood,
24
486 U.S. at 771 (“[e]ven if judicial review were relatively speedy, such review
cannot substitute for concrete standards to guide the decision-maker’s discretion.”);
Cantwell, 310 U.S. at 306 (“[T]he availability of a judicial remedy for abuses in the
system of licensing still leaves that system one of previous restraint which, in the
field of free speech and press, we have held inadmissible. A statute authorizing
previous restraint upon the exercise of the guaranteed freedom by judicial decision
after trial is as obnoxious to the Constitution as one providing for like restraint by
administrative action.”).
The Ordinance also is not narrowly tailored. While the County has a
substantial interest in protecting public safety and the free flow of traffic, this
Ordinance utterly fails to achieve the “appropriate balance between the affected
speech and the governmental interests that the ordinance purports to serve.”
Watchtower Bible and Tract Society of New York, Inc. v. Village of Stratton, 536
U.S. 150, 165 (2002). The scope of the ordinance is sweeping--requiring that any
group of only five or more people who wish to exhibit “[a]ny expression of support
for, or protest of, any person, issue, political or other cause or action” on “any
sidewalk, street, public right of way or other public property” first obtain
government approval before engaging in protected speech (emphasis added). The
Ordinance is overly broad in at least two crucial respects. First, it applies to small
25
intimate groups that do not create a legitimate threat to the County’s interests. See
Majority Opinion at *15, n.13. Second, it requires a permit in virtually all public
places. See Hill, 530 U.S. at 728 ("[W]e must, of course, take account of the place
to which the regulations apply in determining whether these restrictions burden
more speech than necessary.”); see also Davis v. Francois, 395 F.2d 730, 736 (5th
Cir. 1968)(striking down ordinance in part because it “restricts picketing on both
the sidewalks and streets; it extends to all kinds of facilities in the city though each
may present different considerations”).
The substantial interest the County has in protecting public safety and
ensuring the free flow of traffic are simply not advanced by the breadth of this
permit requirement, which applies to every group of five people standing in a park,
sidewalk, or countless other public places, who wish to support a political
candidate, a local ordinance, or perhaps even a soldier coming home from war. “It
is offensive--not only to the values protected by the First Amendment, but to the
very notion of a free society-- that in the context of everyday public discourse a
citizen must first inform the government of her desire to speak to her neighbors and
then obtain a permit to do so.” Watchtower Bible, 536 U.S. at 165-66.
“Consequently, in attaining a permissible end, the [County] has exercised its power
in a way that unduly infringes on protected freedom.” Davis, 395 F.2d at 736.
26
RONEY, Circuit Judge, dissenting:
I respectfully dissent. I would affirm the district court for the reasons set
forth in its Order denying the preliminary injunction. Because that Order was not
published, I attach it here as Appendix I. As to whether the Ordinance is content-
neutral, I note the district court’s statement that “Plaintiffs, however, do not assert
that the protest ordinance [‘Any expression of support for, or protest of, any
person, issue, political or other cause or action which is manifested by the physical
presence of persons, or the display of signs, posters, banners, and the like’]
discriminates based upon the viewpoint of the speaker or the subject matter of the
speech.” Order Denying Preliminary Injunction, at 10 (corresponding text of
Augusta-Richmond County Code § 3-4-1(e) added).
I call special attention to the purpose of the Ordinance and the legislative
intent, by which it should be interpreted, by quoting Augusta-Richmond County
Code § 3-4-11(d):
(d) Intent. It is the specific intent of the Commission in
passing this ordinance to regulate only the time, place and
manner of such events and not to regulate the specific
content or message of any speech by any applicant
hereunder. Only public safety and other concerns as
stated herein shall be considered by the Sheriff in the
decision to issue or deny a permit hereunder.
I also note that the Ordinance requires that, upon an appeal of the denial of
27
an application for permit in whole or in part, the Sheriff must instigate legal
proceedings in a court of competent jurisdiction, and “Augusta shall have the
burden of demonstrating the validity of the denial of the permit as applied for by
the applicant.” § 3-4-11(c). Stated differently, the Sheriff’s denial of an
application for permit is “enforceable upon review,” which has been one factor
considered by the Supreme Court in similar constitutional challenges. See Thomas
v. Chicago Park Dist., 534 U.S. 316, 324 (2002).
This Ordinance was modeled after the ordinance that was unanimously
upheld by the Supreme Court in Thomas v. Chicago Park District. 534 U.S. at 326.
Here, the challenged Ordinance quotes the Thomas ordinance nearly verbatim for
six of the eleven factors for the official’s consideration of the permit application.
Compare 534 U.S. at 318 n.1, quoting Chicago Park Dist. Code, ch VII, § C.5.e(1
to 11) with Augusta-Richmond County Code § 3-4-11(b)(3)(a to i). It also
encompasses a seventh Thomas factor by requiring an application fee and
indemnification agreement in a different provision of the Ordinance. Compare 534
U.S. at 318 n.1, listing § C.5.e(2) with § 3-4-11(a)(3). In fact, the challenged
Ordinance here adds two other tailored factors relating to an “unreasonable
disturbance” of the peace and an “unduly restriction” of traffic in the requested
permitted area. See § 3-4-11(b)(3)(f), (g). The remaining four Thomas ordinance
28
grounds not quoted or in some way embodied in the Ordinance challenged here
relate to double-booking a public park for an event and the sale of goods in a park,
factors that are simply not relevant here. See 534 U.S. at 318 n.1 (listing §
C.5.e(6), (7), (8), (10)). The factors that must be considered by the Sheriff are far
from “vague, undefined and completely subjective,” as is argued, and are firmly cut
from the same pattern of the unanimously upheld Thomas ordinance.
For example, the challenged ordinance in Thomas required a finding that the
intended use or activity “‘would present an unreasonable danger to the health or
safety of the applicant, or other users of the park . . ..’” 534 U.S. at 318 n.1
(quoting § C.5.e(9)) (emphasis supplied). Section 3-4-11(b)(3)(e) of the Augusta-
Richmond Ordinance states that the proposed plan submitted by the applicant may
be denied by the Sheriff if the applicant “would present an unreasonable danger to
the health or safety of the applicant, others participating in the event or other
members of the public at large.” (emphasis supplied). In order for governmental
bodies to provide adequate police protection, traffic control, and further public
safety considerations to “others participating in the event or other members of the
public at large,” it is essential that governmental bodies have advance notice of
protests and demonstrations and information concerning size, location, and manner
of protests such that it can effectively make proper logistical arrangements. In my
29
judgment, the plaintiffs have not satisfactorily distinguished the application of the
principles therein set forth from their application to the Ordinance here.
As to the minimum number of people that requires such a permit as approved
by Thomas, the decisions of local legislative bodies as to what constitutes a
threshold number to require a permit intended to protect the safety of a
community’s citizens should not be arbitrarily rejected. Each community is
different as to the configuration of streets, sidewalks, public parks, traffic flow and
other relevant considerations which are not apparent in a facial challenge to an
ordinance. The plaintiff does not here make an “as applied” challenge to the
Ordinance.
I would therefore affirm the district court’s denial of the plaintiffs’ request
for preliminary injunctive relief.
30