Part One: The History:
The United States Supreme Court has made it very difficult for cities and counties to deny a permit for a demonstration or a protest march. And there are interesting stories behind two of the leading cases on the point.
On April 3, 1963, Martin Luther King, Jr., and the Southern Christian Leadership Conference began their Birmingham Campaign, to try to force integration in the largest city in Alabama. Blacks began sitting in at lunch counters, and getting arrested and jailed. A representative of Fred Shuttlesworth and the SCLC went down to City Hall to get a permit for a march; she was told by Police Commissioner Bull Connor that she would never get a permit in Birmingham. An injunction was issued prohibiting civil rights demonstrations; Dr. King was arrested and taken to the Birmingham Jail, where he wrote his famous “Letter From Birmingham Jail.” On May 2, the SCLC launched the Children’s Crusade; 40% of the black children in local schools skipped school to march.
Bull Connor arrested hundreds of school children and hauled them off to jail on school buses. When the jails were filled, he called out fire hoses and police dogs on the demonstrators. The images of Connor and his men suppressing the nonviolent protest of school children with brutal blasts from water cannons and attacks from police dogs went around the world, but most importantly to Washington, D.C.
Front-page photographs in the nation’s newspapers convinced a reluctant Kennedy administration to propose sweeping reforms that Congress ultimately passed as the Civil Rights Act of 1964.
Photo from the Encyclopedia of Alabama
So this was the backdrop for the Supreme Court’s consideration of the question of whether, or how, a city can regulate protest demonstrations. And given that history, it should probably be no surprise that the Supreme Court was hostile to attempts to regulate marches and demonstrations.
The Birmingham Code required filing a permit application for a march or demonstration. The Code provided that
The commission shall grant a written permit for such parade, procession or other public demonstration, prescribing the streets or other public ways which may be used therefor, unless in its judgment the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused.
When Reverend Shuttlesworth of the SCLC led a march without getting the required permit, he was convicted of violating this law, and he was sentenced to 90 days’ imprisonment at hard labor, and an additional 48 days at hard labor because he refused to pay the $75 fine and $24 costs.
The Supreme Court shot down the regulation, because it gave the Birmingham City Commission “virtually unbridled and absolute power” to prohibit any parade that it wanted to, guided only by its own ideas on “public welfare, peace, safety, health, decency, good order, morals or convenience.” The Supreme Court’s precedents have long required “narrow, objective, and definite standards to guide the licensing authority.”
The Court stated that an ordinance that requires a permit before engaging in protected speech is a prior restraint on speech. Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 22 L. Ed. 2d 162, 89 S. Ct. 935 (1969). Any restrictions must be based on objective criteria, not on a city government’s subjective judgment about what public welfare requires.
The Supreme Court got more specific in a 1992 case. Forsyth County, Georgia, had bragged that it was the whitest county in the nation; in 1912, after an allegation that a black man had raped and murdered a white woman, the suspect was lynched and the County’s entire African-American population — over 1,000 citizens — was driven from the county. In 1987, the county’s population was still 99% white.
On January 17, 1987, Atlanta city councilor and civil rights leader Hosea Williams tried to conduct a “March Against Fear and Intimidation.” About 90 civil rights demonstrators tried to march, but about 400 counterdemonstrators (including the KKK, the Nationalist Movement, and members of the Forsyth County Defense League) lined the parade route, shouting racial slurs and throwing rocks and beer bottles. The outnumbered police were not able to protect the Williams protesters, and the parade was canceled.
Williams planned another march the following weekend. It developed into the largest civil rights demonstration in the South since the 1960’s. On January 24, approximately 20,000 marchers joined civil rights leaders, U.S. Senators, Presidential candidates, and an Assistant United States Attorney General in a parade and rally. The 1,000 counterdemonstrators on the parade route were contained by more than 3,000 state and local police and National Guardsmen. Although there was sporadic rock throwing and 60 counterdemonstrators were arrested, the parade was not interrupted. Security was said to have cost over $670,000.
As a result of these two demonstrations, the Forsyth County Board of Commissioners enacted Ordinance 34 on January 27, 1987. The ordinance established procedures for the issuance of permits for parades, assemblies, demonstrations, road closings, and other uses of public property and roads by private organizations and groups of private persons for private purposes. The ordinance required the permit applicant to defray the County’s costs by paying a fee, later set at $1,000 a day, but the County Administrator was empowered to “adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed.”
In 1989, The Nationalist Movement proposed to to demonstrate on the courthouse steps in opposition to the federal holiday honoring Martin Luther King, Jr. They were assessed a nominal $100 fee, based not on expenses of the police, but on the 10 hours that the County Administrator spend in considering the permit application and issuing it. The Movement did not pay the fee, and did not hold the rally. Instead, they sued, claiming that Ordinance 34 was unconstitutional.
The Supreme Court agreed, because there were no standards for determining what the fee should be.
Based on the county’s implementation and construction of the ordinance, it simply cannot be said that there are any “narrowly drawn, reasonable and definite standards” … guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time — or even whether to charge at all — is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county’s established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.
Forsyth County v. Nationalist Movement, 505 U.S. 123, 132-133 (1992). The Court noted that
The county envisions that the administrator, in appropriate instances, will assess a fee to cover “the cost of necessary and reasonable protection of persons participating in or observing said . . . activity.” … In order to assess accurately the cost of security for parade participants, the administrator must necessarily examine the content of the message that is conveyed, estimate the response of others to that content, and judge the number of police necessary to meet that response. The fee assessed will depend on the administrator’s measure of the amount of hostility likely to be created by the speech based on its content. Those wishing to express views unpopular with bottle throwers, for example, may have to pay more for their permit.
* * * *
The costs to which petitioner refers are those associated with the public’s reaction to the speech. Listeners’ reaction to speech is not a content-neutral basis for regulation. Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob.
* * * *
This Court has held time and again: “Regulations which permit the Government to discriminate on the basis of the content of the message cannot be tolerated under the First Amendment.” The county offers only one justification for this ordinance: raising revenue for police services. While this undoubtedly is an important government responsibility, it does not justify a content-based permit fee.
505 U.S. at 134-36 (citations omitted).
This blog entry has gone on long enough, and my research isn’t finished, but in the next few days I will talk about how the courts have struggled to deal with vaguely drafted regulations.
