CAMP Legal Defense Fund, Inc. v. City of Atlanta

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
JUNE 13, 2006
No. 05-12114 THOMAS K. KAHN
________________________ CLERK

D. C. Docket No. 03-00387-CV-GET-1

CAMP LEGAL DEFENSE FUND, INC.,

Plaintiff-Appellant,

versus

CITY OF ATLANTA,
GREG PRIDGEON,

Defendants-Appellees.

________________________

Appeal from the United States District Court
for the Northern District of Georgia
_________________________

(June 13, 2006)

Before CARNES, WILSON and PRYOR, Circuit Judges.

PRYOR, Circuit Judge:

This appeal by the Coalition for the Abolition of Marijuana Prohibition of a
judgment regarding the Atlanta Outdoor Festivals Ordinance of 2003 presents two

threshold issues of justiciability, involving standing and mootness, and issues

about whether the Festivals Ordinance violates constitutional guarantees of free

speech. The key issue is whether, under the overbreadth doctrine, CAMP may

challenge, under the free speech clause of the First Amendment, provisions of the

Festivals Ordinance that do not either apply to or affect its activities. We recently

confronted this issue en banc in Tanner Advertising Co. v. Fayette County, but did

not resolve it because all but one of the claims for relief in that appeal were

rendered moot by a repeal of the challenged ordinance. ___ F.3d ___, No. 04-

13210 (11th Cir. June 9, 2006) (en banc). We left this “issue for another day.” Id.

at *32. That day has arrived.

The Festivals Ordinance requires an individual or organization to obtain a

permit to hold an outdoor festival in Atlanta. Atlanta Outdoor Festivals Ordinance

of 2003, Atlanta, Ga. Ord. §§ 138-186–138-209. An outdoor festival, in contrast

with traditional parades or other assemblies in parks or streets, involves the

erection of stages, barricades, tents, booths, or other temporary structures, and may

include entertainment and sales of food and merchandise. Id. § 138-187. On

January 2, 2003, CAMP was unable to apply for a permit because Atlanta imposed

a moratorium on the issuance of permits from November 27, 2002, to January 13,

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2003. CAMP filed a complaint that alleged that several provisions of the Festivals

Ordinance violate its rights of free speech under the United States Constitution and

Georgia Constitution. The district court granted partial summary judgments to

both Atlanta and CAMP regarding several provisions and concluded, after a bench

trial, that other provisions were constitutional.

In all, this appeal raises four issues: (1) whether CAMP has standing to

challenge provisions of the Festivals Ordinance that do not affect its activities, (2)

whether the challenge by CAMP to the moratorium on festival permits is moot

because the moratorium has expired, (3) whether provisions of the Festivals

Ordinance violate the First Amendment of the United States Constitution, see U.S.

Const. Amend. I, and (4) whether provisions of the Festivals Ordinance violate the

Georgia Constitution, see Ga. Const. art. 1 § 1 ¶ 5. Our review of these issues

involving these parties is familiar territory. See CAMP v. City of Atlanta, 219

F.3d 1301, 1305 (11th Cir. 2000).

As to all but one of the provisions of the Festivals Ordinance before us, we

either lack jurisdiction to consider the challenge by CAMP or affirm the judgment

in favor of Atlanta. Because CAMP lacks standing to challenge provisions of the

Festivals Ordinance that do not apply to its activities, see Festivals Ordinance §§

138-205, -207(b)(7), (b)(8), and the overbreadth doctrine does not provide an

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exception to the requirements of constitutional standing, we vacate and remand

with instructions to dismiss in part. We also conclude that the complaint of CAMP

regarding the denial of its application for a permit during the moratorium is not

moot, because CAMP requested damages for that alleged violation. As to six

provisions, we affirm in part the judgment in favor of Atlanta: neither the ability

of city officials to comment on the permit application, see id. §§ 138-201(21), -

202, nor the ability of the Chief of Staff to impose special limitations on certain

neighborhoods, see id. § 138-201A(d), grant unbridled discretion to city officials in

violation of the First Amendment; and the ninety-day advance application

requirement, see id. § 138-201, the liability insurance requirement, see id. § 138-

205(e), and the moratorium do not impose prior restraints that violate either the

United States Constitution or the Georgia Constitution. Because the remaining

provisions regarding the exemption for city-sponsored events grant unbridled

discretion to city officials, see id. § 138-187, -188, we reverse and remand in part.

I. BACKGROUND

To explain the context of this appeal, we address two matters. We first

review the operation of relevant provisions of the Festivals Ordinance. We then

review the litigation that led to this appeal.

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 A. The Festivals Ordinance

The Atlanta Outdoor Festivals Ordinance of 2003 governs the permits,

location, size, and fees of public gatherings in the City of Atlanta. Festivals

Ordinance §§ 138-186–138-209. The Festivals Ordinance requires “[a]ny person

or organization desiring to hold an outdoor festival [to] make application for a

permit to hold such event . . . no later than ninety [] days prior to the date of the

festival.” Id. § 138-201. Although the Festivals Ordinance does not “prevent

members of the public from assembling in the parks or streets . . . without holding

an outdoor festival permit,” those without a permit may not “erect stages,

barricades, utility poles, booths, tents or other temporary structures . . . .” Id. §

138-209. The Festivals Ordinance also exempts “city-sponsored events” from the

permitting requirements. Id. § 138-188. A “[c]ity-sponsored event means a public

event that is directly related to a recognized function of city government and which

is in major part initiated, financed, and executed by the City.” Id. § 138-187.

Under the Festivals Ordinance, the Chief of Staff of Atlanta decides whether

to grant or deny a permit within 45 days of the date of application. Id. § 138-

203(A). The Chief of Staff may consult with the Commissioner of Parks,

Recreation and Cultural Affairs, and the Chief of Police and “designate certain

Festival Districts as having special limitations . . . if in the opinion of the Chief of

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Staff there are special considerations . . . such as traffic, public safety,” etc. Id. §

138-201A(d). Neighborhood Planning Units, city council members, the

Departments of Police, Fire, Public Works, Parks, Recreation and Cultural Affairs,

and the Bureau of Buildings may also submit comments about the proposed

festival. Id. § 138-202.

The Chief of Staff considers several criteria when deciding whether to grant

or deny a permit. Id. §§ 138-203(b), -204. For instance, the Chief of Staff “may

deny a permit to an applicant who has failed to complete payment of any sums

required for a previously permitted festival until such time as payment is received .

. . .” Id. § 138-203(b)(7). The Chief of Staff also may “deny a permit to an

applicant who has failed to substantially perform a cleanup plan which was made a

condition of a previous permit . . . .” Id. § 138-203(b)(8). A permit may be denied

if the “internal security plan” submitted by the applicant does not “show that all

off-duty law enforcement personnel to be used for internal security will be POST-

certified.” Id. § 138-203(b)(5). The Festivals Ordinance does not define “POST-

certified,” but “POST-certified” refers to the requirements of the Peace Officer

Standards and Training Act of Georgia. O.C.G.A. §§ 35-8-1 to 35-8-25.

The applicant must include twenty-three items to apply for the permit.

Festival Ordinance §§ 138-201(1)–(23). One item is “[a] certification by [the]

6
applicant that a Notice of Intent to Hold a Festival has been sent by registered mail

or by hand delivery to all City Council members . . . and all Neighborhood

Planning Units affected by the festival . . . .” Id. § 138-201(21). The Festivals

Ordinance also requires that “[a]n applicant shall be required to furnish a fully paid

public liability damage insurance policy procured from a company licensed to do

business in Georgia” for outdoor festivals of over 10,000 estimated attendees. Id.

§ 138-205(e), see id. § 138-205(b). The amount of insurance required is

“$1,000,000 bodily injury total,” “$500,000 bodily injury to any one person,” and

“$100,000 property damage.” Id. § 138-205(e).

The applicant is required to pay fees to hold a festival. The Festivals

Ordinance imposes application and permit fees based upon the size of the festival

and whether the festival is “commercial” or “noncommercial.” Id. §§ 138-205(c),

(d). Under the Festivals Ordinance, “[c]ommercial means any part of the net

earnings of the outdoor festival inures to the benefit of any private shareholder,

individual or for-profit corporation . . . .” Id. § 138-187. “Noncommercial means

any festival organized and operated for charitable, religious, scientific, literary, or

educational purposes . . . or where no part of the net earnings of which inures to the

benefit of any private shareholder, individual or for-profit corporation . . . .” Id. §

138-187.

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 Since it enacted the first Festivals Ordinance in 1983, Atlanta has amended

the Festivals Ordinance several times. When it amended the Festivals Ordinance

in 2003, Atlanta imposed a moratorium on festival permit applications from

November 27, 2002, until January 13, 2003, when the new ordinance would

become effective.

B. The History of This Litigation

CAMP is a Georgia corporation that “endeavors to put on a political

demonstration promoting the reform of marijuana laws.” CAMP has organized the

“Great Atlanta Pot Festival [], a direct action event advocating changes in the laws

governing marijuana.” CAMP, 219 F.3d at 1305. On January 2, 2003, during the

moratorium, CAMP attempted to apply for a festival permit, but was denied

because Atlanta did not accept applications for permits until the 2003 Festivals

Ordinance took effect. On January 16, 2003, CAMP applied for a permit to hold a

festival on April 20, 2003, and Atlanta granted the permit. CAMP also received a

permit and held a festival in 2004.

After the city refused to accept the permit applications of CAMP during the

moratorium, CAMP filed suit and alleged that the Festivals Ordinance violated the

First Amendment of the United States Constitution as incorporated to the states by

the Fourteenth Amendment, see U.S. Const., Amend. I; U.S. Const. Amend. XIV,

8
and Article I of the Georgia Constitution, see Ga. Const. art. 1, § 1, ¶ 5. CAMP

contended that several provisions of the Festivals Ordinance granted unbridled

discretion to government officials, see Festivals Ordinance §§ 138-188, 138-202,

138-207; and several provisions, including the moratorium on permits, were

unconstitutional prior restraints of speech, see id. §§ 138-201, -201A, -203(4), (5),

(12), -201B, -205, -209. CAMP requested “actual and presumed damages” in the

amount of $25,000.

Both parties filed motions for partial summary judgment with evidence to

support their arguments. Atlanta submitted a “Statement of Material Undisputed

Facts” that included the 1994 Festivals Ordinance, the 2000 Festivals Ordinance,

the 2003 Festivals Ordinance, the decision of the district court regarding a previous

challenge by CAMP to the 1994 Festivals Ordinance, CAMP v. City of Atlanta,

1:96-CV-407A-JEC (N.D. Ga. April 9, 1999), and the decision of this Court in that

previous litigation, CAMP, 219 F.3d at 1301. Atlanta “requested that the Court

take judicial notice of the record and judgment” in that previous challenge by

CAMP.

The district court granted partial summary judgments to both CAMP and

Atlanta regarding different provisions of the Festivals Ordinance. In granting

partial summary judgment to CAMP, the district court concluded that the Festivals

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Ordinance (1) did not tailor the size restrictions for the number of allowable Class

C Festivals, see id. § 138-201A(c); (2) granted unbridled discretion to “Festival

Monitors” to revoke permits, see id. § 138-201B; and (3) granted unbridled

discretion to the Chief of Staff to revoke permits if he had “good cause to believe

that [a violation] may occur in the proposed festival,” see id. § 138-203(b)(10).

The district court denied partial summary judgment to CAMP on several other

provisions, see id. §§ 138-187, -188, -201, -201(c), -201A(d), -203(b)(5), -

203(b)(7), (b)(8), -205(c),(d), -209.

The district court granted partial summary judgment in favor of Atlanta

regarding several provisions of the Festivals Ordinance because the district court

concluded that those provisions did not violate either the First Amendment or the

Georgia Constitution. The district court concluded that the fee structure was

content-neutral, see id. § 138-205, because the fee structure “is not contingent upon

the nature of the message to be conveyed . . . .” The court also concluded that a

provision which allows the public to assemble in parks or speak “without holding

an outdoor festival permit” did not discriminate between types of non-commercial

speech. See id. §§ 138-209, -188. The district court ruled that the Festivals

Ordinance did not grant unbridled discretion to the Chief of Staff to impose special

requirements on certain neighborhoods or consult with city council members and

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Neighborhood Planning Units, see id. §§ 138-201A(d), -201(21), -202, because

“the special limitations would be available for review by the applicants prior to

their submission of a permit application.” The court determined that the liability

insurance required by the Festivals Ordinance was constitutional, see id. § 138-

205(e), because the amount of insurance is “not influenced by the nature of the

event or its potential for controversial expressive activity, but rather [is] based only

on the size of the event.” The court upheld provisions in the Festivals Ordinance

that allowed the Chief of Staff to revoke or deny a permit if the applicant failed to

pay certain fees, see id. § 138-203(b)(7), (8), because the Supreme Court had

upheld a similar provision in Thomas v. Chicago Park District, 534 U.S. 316, 122

S. Ct. 775 (2002). Finally, the district court concluded the moratorium was

constitutional because it “applied equally to all applicants and was content-

neutral.”

The district court concluded that CAMP had failed to establish that the

exemption for city-sponsored events violates either the First Amendment or the

Georgia Constitution. The court found that the exemption was constitutional

because “there is no evidence that a government event has impermissibly

preempted private speech.” See id. § 138-188. Although CAMP argued that the

provision may grant Atlanta unbridled discretion to co-sponsor an event, the court

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reasoned that “the issue of co-sponsorship is not properly before the court on this

facial challenge of the ordinance and is not considered at this time.”

The district court granted summary judgment to Atlanta regarding the 90-

day advance application requirement under the First Amendment, but determined

that a genuine issue of material fact existed as to whether the provision was “the

least restrictive means” under the Georgia Constitution. As to the claim under the

First Amendment, the court reasoned that the “90-day application period allows the

City to manage effectively and efficiently the use of its resources, not to prevent

festivals with a message disapproved by the city,” but to address “an ever-

increasing number of demands [that] are being made upon City resources and

infrastructure” (quoting id. § 138-186(b)). See id. § 138-201.

The district court held a bench trial to determine (1) whether the ninety-day

advance application provision violated the Georgia Constitution, see id. § 138-201,

(2) whether the fee structure of the Festivals Ordinance was “nominal,” see id. §

138-205, and (3) whether requiring POST-certified security guards was the “least

restrictive possibility” under Georgia law, see id. § 138-203(b)(5). Several Atlanta

city officials testified about the purpose and need for the 90-day advance

application provision, the fee structure, and the requirement that security guards be

POST-certified, see id. § 138-203(b)(5). Walter Imara Canady, the Special Events

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Manager who oversees the permitting process, testified that the city must grant or

deny a permit 45 days before the start of the festival. Canady testified that 45 days

was necessary to allow the Chief of Staff time to review the permit application and

the Fire, Police, and Sanitation Departments to consider the proposed security plan

of the festival. Canady also testified that “larger scale festivals” and “first time

festivals” require more time to review. Canady stated that the 45-day review

process was “absolutely” necessary.

CAMP presented testimony from Paul Cornwell, the director and CEO of

CAMP. Cornwell testified that he was unable to retain POST-certified officers.

He also stated that the 90-day advance application provision affected his ability to

organize festivals that respond to recent decisions from the Supreme Court, such as

“whether medical marijuana should be considered states’ rights . . . or possibly the

Federal Sentencing Guidelines.” Cornwell stated that the provision also hindered

his ability to invite speakers and entertainers because “[m]ost entertainers and

speakers don’t make their calendar 90 days out.” Cornwell also testified that

“normally” he has stages, amplification, and vendors at his festivals.

At the end of the bench trial, the district court concluded that the provision

requiring festival security guards to be POST-certified was unconstitutional under

the Georgia Constitution because “it was impossible for the plaintiff to satisfy this

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requirement.” The district court also concluded that the ninety-day advance

application provision was “the least restrictive method” under the Georgia

Constitution and the fee structure did not violate the United States and Georgia

Constitutions because “the city clearly spends more in administering the ordinance

in question than the amount of fees the city collects.” The district court awarded

CAMP $500 in nominal damages.

CAMP appeals both the adverse partial summary judgment and the

judgment following the bench trial. Atlanta does not appeal any adverse rulings.

II. STANDARD OF REVIEW

Our standard of review is the same for each issue presented in this appeal.

We review standing determinations de novo. Bochese v. Town of Ponce Inlet, 405

F.3d 964, 975 (11th Cir.), cert. denied, ___ U.S. ___, 126 S. Ct. 377 (2005). We

review the question of mootness de novo. Coral Springs St. Sys., Inc. v. City of

Sunrise, 371 F.3d 1320, 1328 (11th Cir. 2004) (quoting Christian Coal. of Ala. v.

Cole, 355 F.3d 1288, 1290 (11th Cir. 2004)). We review grants of summary

judgment de novo. State Farm Fire & Cas. Co. v. Steinberg, 393 F.3d 1226, 1229

(11th Cir. 2004) (citing Iraola & CIA, S.A. v. Kimberly-Clark Corp., 325 F.3d

1274, 1283 (11th Cir. 2003)). We review “the district court’s determination of the

‘constitutional facts’ in a First Amendment case de novo.” CAMP, 219 F.3d at

14
1316 (quoting Falanga v. State Bar of Ga., 150 F.3d 1333, 1335 (11th Cir. 1998)).

III. DISCUSSION

Before we can address the arguments of CAMP that several provisions of

the Festivals Ordinance either are unconstitutional prior restraints or grant

unbridled discretion to city officials, we must consider issues about our

jurisdiction. We first address whether CAMP has standing to challenge these

provisions. We next consider whether the challenge by CAMP to the moratorium

is moot because the moratorium on permit applications is no longer in effect.

We then turn to the merits of the challenge by CAMP to provisions of the

Festivals Ordinance. We first address arguments by CAMP that provisions of the

Festivals Ordinance grant unbridled discretion to city officials in violation of the

First Amendment of the United States Constitution. We then consider arguments

that provisions of the Festivals Ordinance impose prior restraints that violate either

the First Amendment of the United States Constitution or Article I of the Georgia

Constitution.

A. CAMP Has Standing to Challenge Only Provisions That Govern
Its Activities.

Before oral argument, Atlanta moved to dismiss this appeal on the ground

that CAMP lacks standing to challenge provisions of the Festivals Ordinance, and

we ordered CAMP to respond to that motion. CAMP responded that, under the

15
overbreadth doctrine, it has standing to challenge any provision of the Festivals

Ordinance. Because standing is jurisdictional, we must address this issue before

we address any aspect of the merits of the complaint filed by CAMP.

Our discussion of the issue of standing is divided into three parts. We first

review the legal requirements of constitutional standing and why the overbreadth

doctrine does not provide an exception to those requirements. Second, we address

whether CAMP has standing to challenge provisions of the Festivals Ordinance

that allegedly grant unbridled discretion to officials of Atlanta. Third, we address

whether CAMP has standing to challenge provisions of the Festivals Ordinance

that allegedly impose prior restraints on speech.

1. CAMP Must Satisfy the Requirements of Constitutional Standing,
for Which the Overbreadth Doctrine Provides No Exception.

The Constitution of the United States limits the subject matter jurisdiction of

federal courts to “Cases” and “Controversies.” U.S. Const. Art. III § 2. “[T]he

core component of standing is an essential and unchanging part of the

case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560, 112 S. Ct. 2130, 2136 (1992). Standing “is the threshold

question in every federal case, determining the power of the court to entertain the

suit.” Warth v. Seldin, 422 U.S. 490, 499, 95 S. Ct. 2197, 2205 (1975). “In the

absence of standing, a court is not free to opine in an advisory capacity about the

16
merits of a plaintiff’s claims,” Bochese, 405 F.3d at 974, and “the court is

powerless to continue,” Univ. of S. Ala. v. Am. Tobacco Co., 168 F.3d 405, 409

(11th Cir. 1999).

“[T]he irreducible constitutional minimum of standing contains three

elements.” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136. A plaintiff who invokes the

jurisdiction of a federal court bears the burden to show “(1) an injury in fact,

meaning an injury that is concrete and particularized, and actual or imminent, (2) a

causal connection between the injury and the causal conduct, and (3) a likelihood

that the injury will be redressed by a favorable decision.” Granite State Outdoor

Adver., Inc. v. City of Clearwater, 351 F.3d 1112, 1116 (11th Cir. 2003). Each

element is “an indispensable part of the plaintiff’s case” and “must be supported in

the same way as any other matter on which the plaintiff bears the burden of proof,

i.e., with the manner and degree of evidence required at the successive stages of the

litigation.” Lujan, 504 U.S. at 561, 112 S. Ct. at 2136.

“An ‘injury in fact’ requires the plaintiff to ‘show that he personally has

suffered some actual or threatened injury.’” Clearwater, 351 F.3d at 1117

(emphasis omitted) (quoting Valley Forge Christian Coll. v. Ams. United for

Separation of Church and State, 454 U.S. 464, 472, 102 S. Ct. 752, 758 (1982)).

Although “general factual allegations of injury resulting from the defendant’s

17
conduct may suffice” at the pleading stage, a plaintiff “must ‘set forth’ by affidavit

or other evidence ‘specific facts’” to prove standing at the final stage of litigation.

Lujan, 504 U.S. at 561, 112 S. Ct. at 2137 (quoting Fed. R. Civ. P. 56(e)). “If . . .

the plaintiff’s standing does not adequately appear from all materials of record, the

complaint must be dismissed.” Warth, 422 U.S. at 501–02, 95 S. Ct. at 2207.

These immutable requirements of the Constitution govern the complaint of CAMP.

CAMP contends that, under the overbreadth doctrine, a plaintiff who has

suffered injury under one provision of the Festivals Ordinance has standing to

challenge the entire ordinance. CAMP argues that because it was unable to apply

for a permit during the moratorium, it has established Article III standing under the

overbreadth doctrine to challenge provisions that allow the Chief of Staff to deny a

permit if the applicant has failed to pay fees or perform a cleanup plan, see

Festivals Ordinance § 138-207(b)(7), (8); and impose higher permit fees for

commercial events than noncommercial events, see id. § 138-205. [Id.] This

argument fails.

The overbreadth doctrine does not relieve a plaintiff of the burden to prove

constitutional standing, which requires that “the plaintiff himself has suffered some

threatened or actual injury resulting from the putatively illegal action.” Warth, 422

U.S. at 499, 95 S. Ct. at 2205 (internal quotations and citations omitted). The

18
overbreadth doctrine is an exception to the prudential standing prohibition against

jus tertii claims. Sec’y of State of Md. v. Joseph H. Munson Co., 467 U.S. 947,

956–57, 104 S. Ct. 2839, 2847 (1984). Under the overbreadth doctrine, CAMP

may mount a facial challenge—as opposed to an as-applied challenge—to

provisions of the Festivals Ordinance that affect its activities.

“Beyond the constitutional requirements, the federal judiciary has also

adhered to a set of prudential principles that bear on the question of standing.”

Valley Forge Christian Coll., 454 U.S. at 474, 102 S. Ct. at 759. The Supreme

Court has articulated three prudential standing requirements that allow courts to

refuse the exercise of their jurisdiction. Warth, 422 U.S. at 499, 95 S. Ct. at 2205.

“[T]he Court has said that other justiciability doctrines are derived not from the

Constitution, but instead from prudent judicial administration.” Erwin

Chemerinsky, Federal Jurisdiction § 2.1, at 44. First, “the plaintiff’s complaint

[must] fall[] within the zone of interests protected by the statute or constitutional

provision at issue.” Bischoff v. Osceola County, 222 F.3d 874, 883 (11th Cir.

2000). Second, “when the asserted harm is a ‘generalized grievance’ shared in

substantially equal measure by all or a large class of citizens, that harm alone

normally does not warrant exercise of jurisdiction.” Warth, 422 U.S. at 499, 95 S.

Ct. at 2205. Third, “the plaintiff generally must assert his own legal rights and

19
interests, and cannot rest his claim to relief on the legal rights or interests of third

parties.” Id. Unlike the standing requirements of the Constitution, the prudential

requirements are “essentially [a] matter[] of judicial self-governance.” Id. at

499–500, 95 S. Ct. at 2205.

The overbreadth doctrine is an exception to the third requirement of

prudential standing. Clearwater, 351 F.3d at 1116 (citing Bischoff v. Osceola

County, 222 F.3d 874, 884 (11th Cir. 2000)). The overbreadth doctrine allows

“[l]itigants . . . to challenge a statute not because their own rights of free expression

are violated, but because of a judicial prediction or assumption that the statute’s

very existence may cause others not before the court to refrain from

constitutionally protected speech or expression.” Broadrick v. Oklahoma, 413 U.S.

601, 612, 93 S. Ct. 2908, 2916 (1973). Under the doctrine, a party may bring a

First Amendment case asserting the rights of third parties if “a statute is

constitutionally applied to the litigant but might be unconstitutionally applied to

third parties not before the court.” Broadrick, 413 U.S. at 613, 93 S. Ct. at 2916

(emphasis added). A plaintiff who has established constitutional injury under a

provision of a statute as applied to his set of facts may also bring a facial challenge,

under the overbreadth doctrine, to vindicate the rights of others not before the court

under that provision.

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 New York v. Ferber illustrates the distinction between an as-applied

challenge and a facial challenge under the overbreadth doctrine. 458 U.S. 747, 102

S. Ct. 3348 (1982). The Supreme Court in Ferber considered whether to allow a

bookseller, who was prosecuted for the sale of child pornography to undercover

police officers, to challenge facially a New York statute that prohibited “promoting

a sexual performance by a child.” Id. at 751, 102 S. Ct. at 3351. The bookseller

did not contend that his sale of obscene materials to undercover officers was

protected speech under the Constitution; in other words, he did not question that

the New York obscenity statute, as applied to him, was constitutional. Id. at 760,

102 S. Ct. 3356. The bookseller argued instead that the provision of the New York

obscenity statute that was applied to him was overbroad because it proscribed the

constitutionally-protected speech of parties not before the court. Id. The Supreme

Court stated that the overbreadth doctrine “allow[s] persons to attack overly broad

statutes even though the conduct of the person making the attack is clearly

unprotected and could be proscribed by a law drawn with the requisite specificity.”

Id. at 769, 102 S. Ct. at 3361. The Supreme Court concluded that the overbreadth

doctrine did not allow the bookseller to bring the facial challenge because the New

York statute was not “substantially overbroad.” Id. at 773, 102 S. Ct. at 3363.

Ferber illustrates how the overbreadth doctrine allows a plaintiff, who has

21
suffered injury under one provision, to challenge that provision on facts other than

those that apply to the plaintiff. Although the plaintiff’s speech may not be

constitutionally protected, the overbreadth doctrine allows the plaintiff to

champion the free speech rights of parties not before the court to establish that a

provision is unconstitutionally overbroad. See Dombrowski v. Pfister, 380 U.S.

479, 486, 85 S. Ct. 1116, 1121 (1965). The overbreadth doctrine allows plaintiffs

to bring a facial challenge to the provisions under which the plaintiff suffered an

“injury in fact.” Lujan, 504 U.S. at 560, 112 S. Ct. at 2136; see Virginia v. Am.

Booksellers Ass’n, Inc., 484 U.S. 383, 392, 108 S. Ct. 636, 642 (1988).

The overbreadth doctrine provides an exception to the ordinary prudential

considerations of judicial administration, not an exception to the irreducible

requirements of the Constitution. “Of course, Art. III’s requirement remains: the

plaintiff still must allege a distinct and palpable injury to himself.” Warth, 422

U.S. at 501, 95 S. Ct. at 2206; see Erwin Chemerinsky, Federal Jurisdiction § 2.1,

at 44 (“[T]he Court has said that other justiciability doctrines are derived not from

the Constitution, but instead from prudent judicial administration.”); Michael C.

Dorf, Facial Challenges to State and Federal Statutes, 46 Stan. L. Rev. 235, 247

(1994) (“Prudential considerations cannot, of course, trump constitutional ones.”).

The overbreadth doctrine, which is judicially created, cannot alter the requirements

22
of standing, under Article III, because the Judiciary cannot abrogate the

Constitution. Gladstone v. Village of Bellwood, 441 U.S. 91, 100, 99 S. Ct. 1601,

1608 (1979); Bischoff v. Osceola County, 222 F.3d 874, 884 (11th Cir. 2000).

“[E]ven under the more lenient requirements for standing applicable to First

Amendment overbreadth challenges, it still remains the law that plaintiffs must

establish that they have suffered some injury in fact as a result of the defendant’s

actions.” Bischoff, 222 F.3d at 884. Constitutional standing is a “threshold

question in every federal case” mandated by the Constitution, while prudential

standing is “essentially [a] matter[] of judicial self-governance.” Warth, 422 U.S.

at 499–500, 95 S. Ct. at 2205 (emphasis added). “[N]either the counsels of

prudence nor the policies implicit in the ‘case or controversy’ requirement should

be mistaken for the rigorous Art. III requirements themselves.” Valley Forge

Christian Coll., 454 U.S. at 475, 102 S. Ct. at 760; see Harp Adver., Ill., Inc. v.

Chi. Ridge, 9 F.3d 1290, 1292 (7th Cir. 1993) (stating that application of the

overbreadth doctrine “does not imply . . . that the requirement of standing to sue

has been elided”).

The argument of CAMP that constitutional standards may be altered in the

First Amendment context erroneously implies that the freedom of speech holds a

more favored position in the arsenal of constitutional rights than, for example, the

23
free exercise of religion, U.S. Const. Amend. I; see, e.g., Valley Forge Christian

Coll., 454 U.S. at 472, 102 S. Ct. at 752 (requiring constitutional standing to

vindicate the free exercise of religion), the right to be free from unreasonable

searches and seizures, U.S. Const. Amend. IV; see, e.g., United States v. Padilla,

508 U.S. 77, 80, 113 S. Ct. 1936, 1938 (1993) (requiring an “expectation of

privacy” for standing to challenge a search and seizure), or any other right

guaranteed by the Constitution. “We know of no principled basis on which to

create a hierarchy of constitutional values or a complementary ‘sliding scale’ of

standing which might permit respondents to invoke the judicial power of the

United States.” Valley Forge Christian Coll., 454 U.S. at 484, 112 S. Ct. at 765.

The Supreme Court accordingly has rejected the “view of standing under which the

Art. III burdens diminish as the ‘importance’ of the claim on the merits increases.”

Id. The overbreadth doctrine, when applied in First Amendment challenges,

cannot subsume the constitutional limit on federal courts to “Cases” and

“Controversies” imposed by Article III. See U.S. Const., Art. III § 2.

CAMP contends that it has standing under Metromedia, Inc. v. City of San

Diego, 453 U.S. 490, 505 n.11, 101 S. Ct. 2882, 2891 n.11 (1981) (plurality

opinion). The Supreme Court in Metromedia ruled that an outdoor advertising

company with “commercial interests” could “challenge the facial validity of a

24
statute on the grounds of its substantial infringement of the First Amendment

interests of others.” Id. The outdoor advertising company in Metromedia alleged

“that enforcement of the sign ordinance will eliminate the outdoor advertising

business in San Diego and that the First and Fourteenth Amendments prohibit the

elimination of this medium of communication.” Id. at 503–04, 101 S. Ct. at 2890.

The reliance by CAMP on Metromedia is misplaced because the facial

challenge in Metromedia is distinguishable from this challenge. Metromedia

would have suffered an injury because the ordinance indubitably threatened

imminent harm to its commercial interests by obliterating its business. Cf.

Singleton v. Wulff, 428 U.S. 106, 114, 96 S. Ct. 2868, 2874 (1976) (holding that

doctors in abortion clinics had standing to challenge a city ordinance that impinged

on a woman’s right to an abortion). Metromedia had alleged that it was harmed by

the sign ordinance because the “enforcement of the ordinance will eliminate the

outdoor advertising business in San Diego.” Id. at 503–04, 101 S. Ct. at 2890

(emphasis added). In contrast with Metromedia, CAMP does not allege a concrete

commercial harm apart from the delay caused by the refusal to accept its

applications, and there is no suggestion in the record that every provision of the

Festivals Ordinance pertains to every activity of CAMP.

Our conclusion that CAMP may challenge only provisions of the Festivals

25
Ordinance that affect its activities is consistent with case law from the Supreme

Court and our sister circuits. The Supreme Court has refused to consider

challenges to provisions of a statute where “[e]xamination of the record [] reveals

that no party has standing to challenge the provision.” FW/PBS, Inc. v. City of

Dallas, 493 U.S. 215, 233, 110 S. Ct. 596, 609 (1990), overruled in part on other

grounds by City of Littleton v. Z.J. Gifts D-4, LLC, 541 U.S. 774, 124 S. Ct. 2219

(2004). In FW/PBS, various adult-related businesses raised a facial challenge to a

Dallas ordinance that regulated “sexually oriented businesses.” Id. at 220–21, 110

S. Ct. at 602–03. The businesses challenged several provisions of the ordinance,

id., including a “civil disability provision” that “prohibit[ed] the issuance of a

license to an applicant who has resided with an individual whose license

application has been denied or revoked within the preceding 12 months” and

individuals who had been “convicted of certain enumerated crimes” and their

spouses, id. at 231–32, 110 S. Ct. at 608. Although the Supreme Court considered

challenges to some provisions, the Court did “not reach the merits of the adult

entertainment and adult cabaret petitioners’ challenges to the civil disability

provision.” Id. at 230, 110 S. Ct. at 607. The Court stated that “the record does

not reveal that any party before us was living with an individual whose license

application was denied or whose license was revoked.” Id. at 233, 110 S. Ct. at

26
609. The Court likewise stated that “the record does not reveal any party who has

standing to challenge the provision disabling an applicant who was convicted of

any of the enumerated crimes.” Id. at 234, 110 S. Ct. at 609.

FW/PBS forecloses the argument by CAMP that injury under one provision

is sufficient to confer standing on a plaintiff to challenge all provisions of an

allegedly unconstitutional ordinance. Although the Supreme Court considered

challenges to some provisions of the ordinance, see id. at 223, 110 S. Ct. at 603,

the Court refused to consider challenges to provisions that did not imminently

affect the plaintiffs, id. at 233–34, 110 S. Ct. at 609. The Court reaffirmed the

“independent obligation” of federal courts to ensure a case or controversy exists as

to each challenged provision even in a case where the plaintiffs established harm

under one provision of the statute. Id. at 231, 110 S. Ct. at 607. We and our sister

circuits have followed FW/PBS to require a plaintiff to establish injury in fact as to

each provision, even under the overbreadth doctrine. See, e.g., Brazos Valley

Coal. for Life v. City of Bryan, 421 F.3d 314 (5th Cir. 2005); Lamar Adver. of Pa.,

LLC v. Town of Orchard Park, 356 F.3d 365 (2d Cir. 2004) (stating the plaintiff

had demonstrated injury as to all provisions of the challenged sign ordinance in its

complaint); Clearwater, 351 F.3d at 1117; Gospel Missions of Am. v. City of Los

Angeles, 328 F.3d 548, 553–55 (9th Cir. 2003) (analyzing constitutional standing

27
requirements before granting overbreadth standing); Clark v. Lakewood, 259 F.3d

996, 1006 (9th Cir. 2001) (“A plaintiff may have standing to challenge some

provisions of a law, but not others.”).

The overbreadth doctrine allows CAMP to mount a facial challenge to

provisions of the Festivals Ordinance that harm its ability to hold a festival.

CAMP “may challenge a statute by showing that it substantially abridges the First

Amendment rights of parties not before the court” although its own activities are

not constitutionally protected. Metromedia, Inc., 453 U.S. at 505 n.11, 101 S. Ct.

at 2891 n.11; see Broadrick, 413 U.S. at 612, 93 S. Ct. at 2916. Nothing in the

overbreadth doctrine allows CAMP to challenge provisions wholly unrelated to its

activities. CAMP “must show that [it] has sustained or is immediately in danger of

sustaining a direct injury as the result of” each provision in the Festivals

Ordinance. Laird v. Tatum, 408 U.S. 1, 13, 92 S. Ct. 2318, 2325 (1972) (quoting

Ex parte Levitt, 302 U.S. 633, 634, 58 S. Ct. 1, 1 (1937)).

CAMP argues that several provisions of the Festivals Ordinance are

unconstitutional, but CAMP must establish “by affidavit or other evidence,” Lujan,

505 U.S. at 561, 112 S. Ct. at 2137, that every challenged provision affects CAMP.

CAMP argues that the Festivals Ordinance grants unbridled discretion to city

officials, see Festivals Ordinance §§ 138-201(21), -201A(d), -202, -188, the

28
Festivals Ordinance imposes unconstitutional prior restraints on speech, see id. §§

138-207(b)(7),(8), -201, -205, and the moratorium on festival permit applications

was an unconstitutional prior restraint. We next discuss which of these challenges

CAMP has standing to maintain.

2. Whether CAMP Has Standing to Challenge Provisions That
Allegedly Grant Unbridled Discretion to City Officials?

What a plaintiff must prove to establish standing “depends on the nature of

the challenge to his or her standing.” Bochese, 405 F.3d at 976. The Supreme

Court has “long held that when a licensing statute allegedly vests unbridled

discretion in a government official over whether to permit or deny expressive

activity, one who is subject to the law may challenge it facially without the

necessity of first applying for, and being denied, a license.” City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 755–56, 108 S. Ct. 2138, 2143 (1988). The

challenged provision “must have a close enough nexus to expression, or to conduct

commonly associated with expression, to pose a real and substantial threat of the

identified censorship risks.” Id. at 758, 108 S. Ct. at 2145. If it is “one who is

subject to,” id. at 755, 108 S. Ct. at 2143, or imminently will be subject to, the

provisions that allegedly grant unbridled discretion, then CAMP has standing to

challenge these provisions.

CAMP argues that the Festivals Ordinance grants unbridled discretion to

29
city officials because it (1) requires a festival permit applicant to give notice about

the festival to city council members and Neighborhood Planning Units, see id. §

138-201(21); (2) allows the Chief of Staff to impose “special limitations” on an

event if “there are special considerations warranting such limitations,” see id. §

138-201A(d); (3) allows city officials to submit comments about the festival permit

applications, see id. § 138-202; and (4) exempts city-sponsored events, see id. §

138-188. CAMP argues that these provisions constitute delegated unbridled

discretion because the Festivals Ordinance does not provide the criteria that the

city officials may consider. CAMP argues that, because it has applied for permits

and its future applications would be subject to these procedural regulations, it has

standing to mount these challenges. We agree.

The evidentiary record establishes that CAMP would be affected by

provisions of the Festivals Ordinance that require permit applicants to provide

notice to Neighborhood Planning Units and city council members, see id. § 138-

201(21), allow the Chief of Staff to impose “special limitations” on certain

neighborhoods, id. § 138-201A(d), and allow city officials to comment on festival

permit applications, see Festivals Ordinance § 138-202. CAMP undoubtedly

would be subject to these procedural requirements whenever it submits an

application. The record establishes that CAMP has applied for permits in the past,

30
see generally CAMP, 219 F.3d 1301, 1305, and intends to apply for permits in the

future. That city officials have not yet exercised their discretion to refuse CAMP’s

proposed festivals is immaterial because it is the existence, not the imposition, of

standardless requirements that causes CAMP injury. See Thornhill v. Alabama,

310 U.S. 88, 97, 60 S. Ct. 736, 742 (1940). Where a plaintiff alleges that a statute

grants unbridled discretion, a plaintiff need only be “subject to” the provision to

establish a constitutional injury. City of Lakewood, 486 U.S. at 755-56, 108 S. Ct.

at 2143. Because CAMP has applied for a permit, CAMP has established that it is

subject to these requirements.

CAMP also presented evidence that it is “one who is subject to” the

exemption for city-sponsored events. Lakewood, 486 U.S. at 755, 108 S. Ct. at

2143; see Festivals Ordinance §§ 138-187, -188. CAMP submitted to an allegedly

unconstitutional licensing scheme that imposed a requirement on speech that

otherwise could be expressed without the threat of penalty. See Lakewood, 486

U.S. at 755, 108 S. Ct. at 2143; Freedman v. Maryland, 380 U.S. 51, 56, 85 S. Ct.

734 (1965); see also Z.J. Gifts D-4, LLC, 541 U.S. 774, 124 S. Ct. 2219. The

Festivals Ordinance exempts from the permitting requirement events that are “in

major part initiated, financed, and executed by the City.” Festivals Ordinance §§

138-187, 138-188. The provision fails to provide guidance about which events

31
will be awarded city approval and exemption from the licensing scheme. Because

standardless licensing schemes are subject to “post hoc rationalizations by the

licensing official and the use of shifting or illegitimate criteria,” “it [is] difficult for

courts to determine . . . whether the licensor is permitting favorable, and

suppressing unfavorable, expression.” Lakewood, 486 U.S. at 758, 108 S. Ct. at

2144. If CAMP satisfied the unknowable standards that govern Atlanta’s decision

to support an event, CAMP would not be subject to the strictures of the Festivals

Ordinance. See Festivals Ordinance § 138-188. CAMP is unable to hold its

desired festival without first applying for a permit because Atlanta, in its sole

discretion, does not endorse “in major part” the event CAMP desired to hold.

Atlanta argues that CAMP lacks standing to challenge the governmental

exemption because it has not been denied government sponsorship, but Atlanta

confuses a constitutional injury with a constitutional violation. “[S]tanding in no

way depends on the merits of the plaintiff’s contention that particular conduct is

illegal.” Warth, 422 U.S. at 500, 95 S. Ct. at 2206. A plaintiff need not be denied

a permit under an unconstitutional statute to establish an injury, Lakewood, 486

U.S. at 755–56, 108 S. Ct. at 2143, because standing is “not based upon any

assumption that application for the license would be refused or would result in the

imposition of other unlawful regulations,” Thornhill, 310 U.S. at 97, 60 S. Ct. at

32
742. “The mere fact that the City has not enforced the requirement . . . is not

sufficient to remove this language from our consideration.” Dimmitt v.

Clearwater, 985 F.2d 1565, 1571 (11th Cir. 1993). CAMP has suffered

constitutional injury from the governmental exemption; CAMP must either comply

with the permitting scheme or face prosecution, while government-sponsored

festival promoters need not comply at all.

3. Whether CAMP Has Standing to Challenge Provisions That Allegedly
Impose Unconstitutional Prior Restraints?

CAMP also contends that the Festivals Ordinance imposes unconstitutional

prior restraints on speech because it (1) allows the Chief of Staff to deny a permit if

the applicant has failed to pay fees or perform a cleanup plan, see Festivals

Ordinance § 138-207(b)(7), (8); (2) requires festival promoters to provide

insurance coverage, see id. § 138-205(e); (3) imposes higher permit fees for

commercial events than noncommercial events, see id. § 138-205; and (4) requires

that the application be submitted “no later than ninety [] days prior to the date of

the festival,” see id. § 138-201. CAMP also argues that the moratorium on festival

permit applications was an unconstitutional prior restraint.

“[T]o establish an injury in fact under Lujan based upon chilled expression,

the plaintiff[] must show ‘that either (1) [it was] threatened with prosecution; (2)

prosecution is likely; or (3) there is a credible threat of prosecution.’” Doe v.

33
Pryor, 344 F.3d 1282, 1287 (11th Cir. 2003) (quoting Pittman v. Cole, 267 F.3d

1269, 1283-84 (11th Cir. 2001)); accord Meese v. Keene, 481 U.S. 465, 473; 107

S. Ct. 1862, 1867 (1987). Unlike challenges to provisions that allegedly grant

unbridled discretion to city officials, challenges to prior restraints do not implicate

concerns over “the use of shifting or illegitimate criteria,” id., for every party that

seeks a license. In a challenge of a prior restraint on speech the plaintiff must

establish that the challenged provision pertains to its activity, and not merely that it

is “subject to the law.” City of Lakewood, 486 U.S. at 755–56, 108 S. Ct. at 2143.

CAMP lacks standing to challenge two of the five provisions as prior

restraints. CAMP failed to present evidence that it has, or imminently will be,

denied a permit for failure to pay fees or perform a cleanup plan. See id. §§ 138-

207(b)(7), (8). CAMP also presented no evidence, “by affidavit or other

evidence,” that these provisions apply to the permits it seeks. See Lujan, 504 U.S.

at 560, 112 S. Ct. at 2136. Because the record does not evidence an “actual or

imminent” injury from these provisions, CAMP lacks standing to challenge them,

and we lack jurisdiction to consider them.

CAMP also lacks standing to challenge the higher permit fees for

commercial events. CAMP concedes that Atlanta has consistently classified its

events as “noncommercial” and the record is silent on whether CAMP would be

34
subject to the higher commercial fees in the future. CAMP argues that “the

moment [CAMP] tries to become commercial,” it would be subject to the higher

fees in the Festivals Ordinance, but this allegation is “conjectural.” Id. at 560, 112

S. Ct. at 2136. “[S]tanding cannot be ‘inferred argumentatively from averments in

the pleadings,’ but rather ‘must affirmatively appear in the record.’” FW/PBS,

Inc., 493 U.S. at 231, 110 S. Ct. at 608 (emphasis added) (citations omitted).

Because CAMP failed to meet its burden to establish injury from the higher fees

imposed on commercial events, we lack jurisdiction to consider the challenge as to

those fees.

CAMP has standing to challenge the 90-day advance application provision,

see Festivals Ordinance § 138-205, the liability insurance provision, see id. § 138-

205(e), and the moratorium. All that constitutional standing requires is that the

provision of the ordinance applies to CAMP. See Clearwater, 351 U.S. at 1117.

The 90-day advance application requirement affected CAMP because it evidenced

an intent to hold an outdoor festival that required a permit, and the record contains

evidence that CAMP has had difficulty recruiting performers based on its inability

to predict whether it would receive a festival permit 90 days in advance.

The liability insurance requirement also pertains to the activities of CAMP,

because insurance is required for all festivals with an estimated attendance of over

35
10,000 people. See id. It is undisputed that previous events of CAMP have

attracted up to 30,000 attendees. See CAMP, 219 F.3d at 1306. CAMP has also

been unable to hold its desired festival because Atlanta did not accept permit

applications during the moratorium. These restraints on speech affected the ability

of CAMP to hold a festival.

Although CAMP challenges several provisions of the Festivals Ordinance,

the record establishes that provisions that grant unbridled discretion to city

officials, see Festivals Ordinance §§ 138-187, -188, -201(21), -201A(d), -202, the

90-day advance application provision, see id. § 138-201, the liability insurance

requirement, see id. § 138-205(e), and the moratorium have caused “a distinct and

palpable injury to” CAMP, Gladstone, 441 U.S. at 100, 99 S. Ct. at 1608.

Because CAMP lacks standing to bring the other challenges, see Festivals

Ordinance §§ 138- 205, 207(b)(7), (8), the district court “was without authority to

decide the merits.” Bender v. Williamsport Area School Dist., 475 U.S. 534, 549,

106 S. Ct. 1326, 1335 (1986). To prevent the judgment of the district court “from

spawning any legal consequences,” we partially grant the motion to dismiss by

Atlanta, vacate the rulings of the district court regarding the challenges that CAMP

lacks standing to bring, and remand with instructions to dismiss those challenges.

United States v. Munsingwear, 340 U.S. 36, 41, 71 S. Ct. 104, 107 (1950); see

36
FW/PBS, 493 U.S. at 235–36, 110 S. Ct. at 610 (vacating with instructions to

remand where the Court of Appeals addressed the merits, but the parties lacked

standing to bring the challenge). We next address whether CAMP has maintained

Article III standing through this appeal.

B. The Challenge by CAMP to the Moratorium Is Not Moot.

Atlanta also moved to dismiss the challenge by CAMP to the moratorium as

moot because “the moratorium expired four years ago and has never been

reinstituted.” “Article III of the Constitution requires that there be a live case or

controversy at the time that a federal court decides the case; it is not enough that

there may have been a live case or controversy when the case” was filed. Burke v.

Barnes, 479 U.S. 361, 363, 107 S. Ct. 734, 736 (1987). “[M]ootness is a

justiciability doctrine that must be satisfied before we may decide a case.”

Clearwater, 351 F.3d at 1119. A case becomes moot “when a subsequent law

brings the existing controversy to an end,” CAMP, 219 F.3d at 1310 (citing Church

of Scientology Flag Serv. Org., Inc. v. Clearwater, 777 F.2d 598, 605 (11th Cir.

1985)), but when the plaintiff “has requested damages . . . the changes made to the

ordinance do not make th[e] case moot,” Clearwater, 351 F.3d at 1119 (citing

Firefighters Local Union No. 1784 v. Stotts, 467 U.S. 561, 571, 104 S. Ct. 2576,

2584 (1984)).

37
 CAMP requested damages in its complaint about the moratorium and has

preserved an argument about that claim for relief on appeal. Although Atlanta

argues that “the district court has already awarded [CAMP] nominal damages for .

. . the alleged delay CAMP suffered in the permit process as a result of the

moratorium,” the record belies this argument. The district court concluded the

moratorium was constitutional and granted partial summary judgment to Atlanta, a

decision that CAMP appeals. Because the moratorium issue is not moot, we deny

in part the motion to dismiss by Atlanta. Having determined which of CAMP’s

challenges we have jurisdiction to consider, we now turn to the merits of that

challenge.

C. Whether Provisions That Allegedly Grant Unbridled Discretion to
City Officials Violate the First Amendment?

CAMP alleges that provisions of the Festivals Ordinance grant unbridled

discretion to city officials, in violation of the First Amendment, because (1) the

Chief of Staff may impose “special limitations” on certain neighborhoods “if in the

opinion of the Chief of Staff there are special considerations warranting such

limitations,” see Festivals Ordinance § 138-201A(d); (2) city officials, including

Neighborhood Planning Units and city council members, may review and comment

on the permit application, see id. § 138-201B, -202; and (3) Atlanta fails to assert a

compelling interest for the content-based exemption of city-sponsored events, see

38
id. §§ 138-187, -188. We discuss each challenge in turn.

CAMP challenges the ability of the Chief of Staff to impose “special

limitations” on certain neighborhoods “if in the opinion of the Chief of Staff,”

special considerations are necessary, id. § 138-201A(d), but CAMP misreads the

statute. “The plain meaning that [courts] seek to discern is the plain meaning of

the whole statute, not of isolated sentences.” Beecham v. United States, 511 U.S.

368, 372, 114 S. Ct. 1169, 1671 (1994). When read in its entirety, the Festivals

Ordinance does not grant unbridled discretion to the Chief of Staff selectively to

impose content-based limitations on permit applicants.

Section 138-201A governs the establishment of and restrictions on Festival

Districts. Festivals Ordinance § 138-201A. The Chief of Staff may consider the

location of parks and police zones to establish these districts. Id. § 138-201A(b).

To impose “special limitations,” the Chief of Staff may consider “traffic, public

safety, [and] limitations contained in any Master Plan adopted by [the city]

Council.” Id. § 138-201A(d). “Any such limitations, to be effective, must be

noted in writing by the Chief of Staff on the . . . Festival District maps . . . , and

shall be separately signed and dated . . . .” Id. § 138-201A(d).

These limitations are content-neutral because the Festival Districts and the

accompanying limitations are established before the submission of a festival

39
permit. See id. § 138-201A(a); Forsyth County v. Nationalist Movement, 505 U.S.

123, 133–34, 112 S. Ct. 2395, 2403 (1992) (striking down a provision that granted

unbridled discretion because it was content-based). Because it is content-neutral,

this provision “is not open to the kind of arbitrary application that [we have]

condemned as inherently inconsistent with a valid time, place, and manner

regulation because such discretion has the potential for becoming a means of

suppressing a particular point of view.” Heffron v. Int’l Soc’y for Krishna

Consciousness, 452 U.S. 640, 649, 101 S. Ct. 2559, 2565 (1981). This provision

does not grant unbridled discretion to the Chief of Staff.

The ability of Neighborhood Planning Units and city council members to

“comment” on the permit applications, see Festivals Ordinance §§ 138-201(21), -

202, is likewise a content-neutral restriction that passes constitutional muster. An

applicant must provide notice to Neighborhood Planning Units and city council

members, see id. § 138-201(21), and city officials “shall review the application,

endorse their comments thereon, including the number of extra personnel hours

estimated to be required,” see id. § 138-202. Nothing in the Festivals Ordinance

confers Neighborhood Planning Units, city council members, or any other

department the authority to grant or deny a permit.

The Chief of Staff “shall be charged with the responsibility and authority” to

40
grant permits, and the Festivals Ordinance provides discrete criteria that

circumscribe the discretion of the Chief of Staff. See id. § 138-203. Sections 138-

201(21) and 138-202 do “not delegate overly broad licensing discretion to a

government official.” Forsyth, 505 U.S. at 130, 112 S. Ct. at 2401. The provisions

do not grant city officials, other than the Chief of Staff, licensing authority at all.

CAMP also challenges the exemption for “city-sponsored events.” Festivals

Ordinance § 138-187, -188. Section 138-188 provides that the Festivals Ordinance

“shall not apply to a city-sponsored event.” Id. § 138-188. A “city-sponsored

event” is “a public event that is directly related to a recognized function of city

government and which is in major part initiated, financed and executed by the

City.” Id. § 138-187. CAMP argues that the exemption for city-sponsored events

is content-based discrimination for which Atlanta fails to provide a compelling

reason. The district court concluded that the exemption was constitutional and

granted partial summary judgment to Atlanta because “there [was] no evidence that

a government event has impermissibly preempted private speech” and “the issue of

co-sponsorship is not properly before the court on this facial challenge.” We

disagree.

The governmental exemption grants unbridled discretion to city officials

because it lacks “narrow, objective, and definite standards to guide” the application

41
of the exemption. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 151, 89 S.

Ct. 935, 938 (1969). “Nothing in the law or its application prevents the official

from encouraging some views and discouraging others through the arbitrary” grant

of an exemption. Forsyth, 505 U.S. at 133, 112 S. Ct. at 2403. The provision does

not provide objective criteria that limit the ability of city officials to discriminate

based on the viewpoint of the speaker or the content of the speech because Atlanta

could arbitrarily decide to “initiate[], finance[], and execute[]” “in major part” the

event of a private organization.

“A government regulation that allows arbitrary application is ‘inherently

inconsistent with a valid time, place, and manner regulation because such

discretion has the potential for becoming a means of suppressing a particular point

of view.’” Forsyth, 505 U.S. at 130, 112 S. Ct. at 2401 (quoting Heffron, 452 U.S.

at 649, 101 S. Ct. at 2565). The lack of objective criteria in the governmental

exemption “readily lends itself to harsh and discriminatory enforcement by local

prosecuting officials, against particular groups deemed to merit their displeasure,

[and] results in a continuous and pervasive restraint on all freedom of discussion

that might reasonably be regarded as within its purview.” Thornhill, 310 U.S. at

97–98, 60 S. Ct. at 742. Because under the Festivals Ordinance there are fewer

obstacles to the expression of speech that the city endorses, the governmental

42
exemption allows the city to remove onerous burdens from organizations that the

city chooses to endorse.

Atlanta argues, and we agree, that it makes “no sense for the City to have to

grant itself a permit and then pay permit fees to itself,” but Atlanta fails to account

for the possibility that private organizations would be exempt from the Festivals

Ordinance in a cosponsored event with Atlanta. Because the Festivals Ordinance

exempts organizations in events that are “in major part initiated, financed[,] and

executed by the City,” Festivals Ordinance § 138-187 (emphasis added), the

provision does not only exempt the city, but has the potential to benefit private

speakers. Although courts should consider the “authoritative constructions of the

ordinance [by the city], including its own implementation and interpretation of it”

in the evaluation of an ordinance, Forsyth, 505 U.S. at 131, 112 S. Ct. at 2402, the

government exemption leaves unbridled discretion in the hands of the city to

determine which speech and speakers “in major part” to endorse or suppress.

Festivals Ordinance § 138-187. Without objective standards, the exemption for

city-sponsored events fails to guarantee that the exemption will not be applied in a

discriminatory manner. See Women Strike For Peace v. Morton, 472 F.2d 1273,

1291 (D.C. Cir. 1972) (“Without such protection, there is too great a danger that

front line officials will use their discretion to regulate views rather than to regulate

43
the mode in which those views are expressed.”). Because the exemption for city-

sponsored events grants unbridled discretion through the standardless exemption of

festivals that are “in major part financed, executed, and initiated” by the city, we

reverse the grant of summary judgment to Atlanta.

D. Whether the 90-Day Advance Application Provision, the Liability
Insurance Provision, and the Moratorium Are Unconstitutional Prior
Restraints Under Either the First Amendment or the Georgia
Constitution?

The First Amendment prohibits prior restraints on speech unless they “meet

the requirements for reasonable time, place and manner restrictions of protected

speech in public fora.” CAMP, 219 F.3d at 1316. To be constitutional, the

regulation must be (1) content-neutral, (2) narrowly tailored to serve a significant

government interest, and (3) leave open ample alternative channels for

communication of the information. Ward v. Rock Against Racism, 491 U.S. 781,

791, 109 S. Ct. 2746, 2753–54 (1989); accord Forsyth, 505 U.S. at 130, 112 S. Ct.

at 2401; CAMP, 219 F.3d at 1316. The first step to analyze whether a provision is

an unconstitutional prior restraint is whether the challenged regulation is content-

based. Solantic LLC v. City of Neptune Beach, 410 F.3d 1250, 1258 (2005). If

the regulation is content-based, it is subject to strict scrutiny; if the regulation is

content-neutral, it is subject to intermediate scrutiny. Id.

The Georgia Constitution states, “No law shall be passed to curtail or

44
restrain the freedom of speech or of the press. Every person may speak, write, and

publish sentiments on all subjects but shall be responsible for the abuse of that

liberty.” Ga. Const. art. I, § 1, ¶ 5. Georgia courts depart from federal

constitutional free speech analysis for time, place, and manner restrictions in

content-neutral speech. Statesboro Publ’g Co. v. City of Sylvania, 516 S.E.2d

296, 299 (Ga. 1999). Georgia courts have explained that the free speech rights

under the Georgia Constitution are “broader” than those under the federal

Constitution because Georgia requires the “least restrictive means” to regulate

content-neutral speech. Id.; accord Coffey v. Fayette County, 610 S.E.2d 41, 42

(Ga. 2005). To be the “least restrictive means,” a regulation must “suppress no

more speech than is necessary to achieve the city’s goals.” Statesboro Publ’g Co.,

516 S.E.2d at 95. The analysis of prior restraints, under the Georgia Constitution,

is identical to the First Amendment in all other respects. Id.

CAMP argues that the requirement that applicants apply for festival permits

90 days in advance, the requirement that festival promoters furnish liability

insurance, and the moratorium are prior restraints on speech in violation of the

First Amendment and the Georgia Constitution. These arguments fail. We

address each in turn.

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 1. The 90-Day Advance Application Provision Is Not an
Unconstitutional Prior Restraint Under Either the First Amendment or
Georgia Law.

CAMP argues that the 90-day advance application provision is an

unconstitutional prior restraint of speech because it is not substantially related to a

legitimate government interest. We disagree. Because the 90-day advance

application is the “least restrictive means” to further the legitimate interests of

Atlanta in public health and safety, it satisfies both the Georgia Constitution and

the First Amendment of the United States Constitution.

First, the 90-day advance application requirement is content-neutral. “As a

general rule, laws that by their terms distinguish favored speech from disfavored

speech on the basis of the ideas or views expressed are content-based.” Solantic,

410 F.3d at 1259 (quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 639, 114

S. Ct. 2445, 2457 (1994)). The requirement that festival applicants apply 90 days

in advance is content-neutral because it applies equally to all festival permit

applicants without reference to the content of the festival. See CAMP, 219 F.3d at

1317. Because the requirement of a 90-day advance application is content-neutral,

Atlanta has a lower burden to sustain its constitutionality.

Second, the 90-day advance application requirement is also the “least

restrictive means” of regulation because it “suppresses no more speech than is

46
necessary to achieve the city’s goals.” Statesboro Publ’g Co., 516 S.E.2d at 299.

Atlanta persuasively contends that the 90-day advance application requirement is

necessary because city departments and the Chief of Staff require at least 45 days

to review the application. “A municipality needs some time to decide whether to

grant the permit and if so whether to impose conditions on the grant.” Church of

Am. Knights of Klu Klux Klan v. Gary, 334 F.3d 676, 682–83 (7th Cir. 2003)

(upholding a 45-day advance notice provision). Atlanta presented testimony from

city officials that the 45-day review process is necessary for the police, fire, and

sanitation departments to confer and review the application. There is no evidence

in the record to suggest that Atlanta could require less time to further the

significant interests of the city in the safety and health of the population. See

CAMP, 219 F.3d at 1318.

The 90-day requirement also leaves 45 days for the applicant to seek judicial

review of a denial for a permit. Adequate time for judicial review of the denial is

necessary to avoid the advance application requirement from being “administered

in a manner which would lend an effect of finality to the” denial by Atlanta.

Freedman, 380 U.S. at 58, 85 S. Ct. at 739. “Only a procedure requiring a judicial

determination suffices to impose a valid final restraint.” Id. The Festivals

Ordinance allows ample time for the applicant to seek judicial review of the denial

47
of the lack of which resulted in the invalidation of a previous version of the

Festivals Ordinance. See CAMP v. Atlanta, Civil Action No. 1:96-CV-407A-JEC,

at 41–42 (N.D. Ga. April 9, 1999). The relationship between the 90-day time

frame and the interests of public health and safety is “logical and practical.”

CAMP, 219 F.3d at 1318.

CAMP argues that the provision could be more narrowly tailored if the

number of days that an applicant must file in advance were related to the number

of estimated attendees, but Atlanta presented testimony from Canady, the Special

Events Manager, that the size of the festival is only one factor in the amount of

time required to approve a festival: “first-time” events require more time to

process and the Chief of Staff and other city departments require seven days to

review the application regardless of the size of the festival. Because the Festivals

Ordinance requires a festival permit only for the events that require stages,

barricades, utility poles, police presence, etc., see Festivals Ordinance § 138-209,

the requirement targets proposed events that pose the greatest risk to public health

and safety. CAMP fails to identify what speech the 90-day advance application

requirement unnecessarily suppresses. The 90-day advance application

requirement is the “least restrictive means” to accomplish the goals of Atlanta to

promote public health and safety. Statesboro Publ’g Co., 516 S.E.2d at 95.

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 Third, the 90-day advance application requirement leaves open alternative

channels of communication. The Festivals Ordinance provides that “[n]othing in

this article shall be construed to prevent members of the public from assembling in

the parks or streets for the purpose of making any speech or conveying any

message to the public . . . without holding an outdoor festival permit . . . .”

Festivals Ordinance § 138-209. Although CAMP may not “erect stages,

barricades, utility poles, booths, tents or other temporary structures,” id., we have

stated that “benefits conferred by an outdoor festival permit are not essential to the

message of CAMP, rather they are convenient mechanisms for increasing the

efficiency with which CAMP might choose to communicate its message.” CAMP,

219 F.3d at 1320. The Constitution requires only that Atlanta leave open an

alternative channel of communication, not the alternative channel of

communication CAMP desires. See ISKCON Miami, Inc. v. Metro. Dade County,

147 F.3d 1282, 1290 (11th Cir. 1998). We affirm the judgment of the district court

that the 90-day advance application requirement is not an unconstitutional prior

restraint under either the First Amendment or the Georgia Constitution.

2. The Liability Insurance Requirement Is Not an Unconstitutional
Prior Restraint.

CAMP contends that the liability insurance requirement is unconstitutional

because “[t]here is no proof in the record to support either the insurance amount of

49
the requirements to have insurance.” See Festivals Ordinance § 138-205(e). We

affirm the decision of the district court. Because the liability insurance is unrelated

to the speech expressed and it is limited to festivals with over 10,000 attendees,

section 138-205(e) does not violate the First Amendment or the Georgia

Constitution.

First, the liability insurance requirement is content-neutral. To be content-

neutral, a fee may not be based on “the amount of hostility likely to be created by

the speech based on its content.” Forsyth, 505 U.S. at 134. The amount of liability

insurance required by the Festivals Ordinance is equal across all festivals with an

estimated attendance of over 10,000 people. See 138-205(e). There is no

evidence in the record to suggest that the amount of liability insurance is somehow

tied to the controversial nature of the proposed festival. Because “[t]he required

amount and the cost of the insurance depend only on the size of the event and the

nature of the facilities involved in it,” the liability insurance requirement is

content-neutral. Thomas v. Chi. Park Dist., 227 F.3d 921, 925 (7th Cir. 2000),

aff’d, 534 U.S. 316, 122 S. Ct. 775 (2002).

Second, the liability insurance requirement is also the least restrictive

method to further the goal of public safety. Only festivals with an estimated

attendance of 10,000 people are required to furnish liability insurance. See

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Festivals Ordinance 138-205(e). The amount of liability insurance required by the

Festivals Ordinance is necessary because the insurance “must protect the City of

Atlanta [and] its officers . . . from any and all claims damages to property and or

bodily injury.” Id. § 138-205(e)(2). There is no evidence in the record that the

amount of liability insurance required is excessive.

Third, as we discussed earlier, the ability of the public to assemble without a

festival permit leaves open ample alternative channels for communication. See §

138-209. The liability insurance requirement does not impose an unconstitutional

prior restraint under either the First Amendment or the Georgia Constitution. We

affirm the judgment of the district court that the requirement of liability insurance

does not impose an unconstitutional prior restraint.

3. The Moratorium Was Not a Prior Restraint.

CAMP also argues that the moratorium imposed by Atlanta from November

27, 2002, until January 13, 2003, was an unconstitutional prior restraint on speech,

but CAMP fails to establish that the moratorium affected any constitutionally

protected speech. “The term ‘prior restraint’ is used to describe administrative and

judicial orders forbidding certain communications when issued in advance of the

time that such communications are to occur.” Alexander v. United States, 509 U.S.

544, 553, 113 S. Ct. 2766, 2773 (1993) (internal quotations and citations omitted).

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“Prior restraints have also been found where the government has unbridled

discretion to limit access to a particular public forum.” Cooper v. Dillon, 403 F.3d

1208, 1215 (11th Cir. 2005).

The moratorium did not “limit access to a particular public forum,” id.,

because the effect of the moratorium was a repeal of the Festivals Ordinance.

CAMP conceded at oral argument that Atlanta was free to repeal the ordinance

without violating the First Amendment, and CAMP conceded that, in the absence

of the ordinance, Atlanta was not obligated to provide CAMP or anyone else the

municipal services that pertain to outdoor festivals. After it extended these

benefits to the public through the Festivals Ordinance, Atlanta was constitutionally

obliged to provide these services in an even-handed manner consistent with the

First and Fourteenth Amendments, but Atlanta was not constitutionally required to

provide stages or barricades during the moratorium.

Although CAMP would have been unable to erect stages, barricades, or

utility poles without a festival permit, the moratorium did not abridge the right of

CAMP to express speech. The moratorium on the issuance of permits was content-

netural and restricted benefits not granted under either the United States or Georgia

Constitutions. The moratorium did not impose a prior restraint on constitutionally

52
protected speech. Because the moratorium did not violate either the Georgia

Constitution or the United States Constitution, we affirm the district court.

IV. CONCLUSION

We grant in part the motion to dismiss by Atlanta, and vacate and remand

with instructions to dismiss in part because CAMP lacks standing to challenge

provisions that allow the Chief of Staff to deny a permit if the applicant has failed

to pay fees or perform a cleanup plan, Festivals Ordinance § 138-207(b)(7), (8);

and impose higher permit fees for commercial events than noncommercial events,

id. § 138-205. We deny in part the motion to dismiss by Atlanta because CAMP

has standing to challenge other provisions of the Festivals Ordinance and the

challenge by CAMP of the moratorium is not moot. Because the requirement that

applicants give notice to city council members and Neighborhood Planning Units,

see id. § 138-201(21), the ability of the Chief of Staff to impose “special

limitations,” id. § 138-201A(d), the ability of city officials to submit comments

about festival permit applications, id. § 138-201, the 90-day advance application

requirement, see id. § 138-201, the liability insurance requirement, id. § 138-

205(e), and the moratorium are constitutional, we affirm the judgment of the

district court in part. We reverse and remand in part because the exemption for

city-sponsored events, see id. § 138-188, grants unbridled discretion to city

53
officials.

VACATED and REMANDED WITH INSTRUCTIONS TO DISMISS

IN PART, AFFIRMED IN PART, and REVERSED and REMANDED IN

PART.

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