Sullivan v. City of Augusta

Filing 920071214

Opinion

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var WPFootnote1 = 'We find no merit in plaintiffs\' contention that plenary\
review is reserved only for district court decisions denying First\
Amendment challenges, while decisions (as here) providing support\
for First Amendment claims are entitled only to more restricted\
review.\
'

var WPFootnote2 = 'We note, in addition, the total absence of allegations in the\
amended complaint, or facts in the stipulated record, indicating\
that the MOGO has in any way chilled or affected plaintiffs\'\
conduct. See infra.\
'

var WPFootnote3 = 'We would add that the language used to describe the MOGO\'s\
requirements, while conceivably able to be stretched to large\
parades, seems far more apt to fixed locations. "[A]dequate and\
satisfactory water supply and sewer facilities" could conceivably\
extend to portable toilets, as the court said, but it is\
questionable if someone having portable toilets in mind would have\
described them in that way. At the very least, if the MOGO was\
meant to regulate the parades and marches already regulated by the\
parade ordinance, it would seem likely that one of the ordinances\
would have cross-referenced the other.\
'

var WPFootnote4 = 'The City contends that for it to have read the two ordinances\
as requiring duplicative permits would also have violated the rule\
that statutes should be read so as to avoid constitutional\
difficulties. Frisby v. Schultz, 487 U.S. 474, 483 (1988). To\
require two permits for one street march would increase the burdens\
on those seeking permission to march and would arguably, by that\
fact alone, further chill their free speech rights. Additionally,\
the MOGO requirements would be open to challenge under the First\
Amendment as to whether or not the additional burdens they placed\
upon plaintiffs\' First Amendment rights were excessive. Without\
passing on the validity of such contentions, we note the obvious\
fact that an interpretation that each of the two ordinances applied\
to plaintiffs would increase the scale of possible constitutional\
difficulties, while an interpretation that only the parade\
ordinance applies avoids many such difficulties.\
'

var WPFootnote5 = 'The thirty-day provision, to be sure, is qualified by\
authorization to the City Manager to "allow a shorter time frame\
for good cause shown." But because we find that essentially\
standardless provision to be insufficient to redeem the thirty-day\
requirement, infra, we believe that Sullivan\'s complained-of\
deterrence suffices to establish injury, especially where there is\
no question as to plaintiffs\' standing to challenge, on First\
Amendment grounds, other aspects of the very same ordinance.\
'

var WPFootnote6 = 'In Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), the\
Supreme Court explained that "the principal inquiry in determining\
content neutrality, in speech cases generally and in time, place,\
or manner cases in particular, is whether the government has\
adopted a regulation of speech because of disagreement with the\
message it conveys." The main inquiry is not whether certain\
speakers are disproportionately burdened, but rather, whether the\
reason for the differential treatment is, or is not, content-based. \
See Hill v. Colorado, 530 U.S. 703, 719-20 (2000).\
'

var WPFootnote7 = 'While acknowledging that the parade ordinance is content-neutral on its face, the plaintiffs have argued to us that Augusta\
applied the ordinance in a viewpoint-discriminatory manner by\
waiving the parade permit fee for the Maine Chiefs of Police\
Association\'s annual parade. The district court disagreed. It\
found that the City\'s waiver of the fee did not "disfavor or\
suppress one viewpoint in favor of another." Rather, it held,\
Augusta had merely used its funds permissibly to promote a speaker\
deemed to be in the public interest. \
              Although plaintiffs now argue against the district court\'s\
resolution of this issue, they have never filed a cross-appeal from\
the district court\'s determination that the waiver of fee for the\
Maine Chiefs of Police Association\'s annual parade is\
constitutionally permissible. We therefore lack jurisdiction to\
consider plaintiffs\' objections to the district court\'s specific\
ruling on this issue. See United States v. Craven, 239 F.3d 91,\
103 (1st Cir. 2001); Justice for All v. Faulkner, 410 F.3d 760, 772\
(5th Cir. 2005). Cf. Johnson v. Teamsters Local 559, 102 F.3d 21,\
28 (1st Cir. 1996) (dismissing late-filed cross-appeal for lack of\
appellate jurisdiction). To the extent plaintiffs pursue this\
claim on appeal on the ground that we may affirm the district\
court\'s judgment invalidating the fee provision on any basis\
supported by the record, we concur with the district court that the\
waiver of the permit fee did not constitute viewpoint\
discrimination.\
'

var WPFootnote8 = 'Justice Kennedy, writing for the majority in Ward, emphasized\
that while narrow tailoring in the content-neutral context was more\
relaxed, the regulation may not "burden substantially more speech\
than is necessary to further the government\'s legitimate interests. \
Government may not regulate expression in such a manner that a\
substantial portion of the burden on speech does not serve to\
advance its goals." Ward, 491 U.S. at 799.\
'

var WPFootnote9 = ' The Court emphasized the total absence of "articulated\
standards either in the ordinance or in the county\'s established\
practice," to guide the administrator\'s fee-setting discretion. \
"The decision how much to charge for police protection or\
administrative time--or even whether to charge at all--is left to\
the whim of the administrator." 505 U.S. at 133.\
'

var WPFootnote10 = 'Forsyth involved a content-based, not content-neutral,\
ordinance, but the analysis of overly broad discretion as discussed\
in Forsyth has also been applied in cases involving content-neutral\
ordinances. See Thomas, 534 U.S. at 323.\
'

var WPFootnote11 = 'Citing Forsyth and Niemoto v. Maryland, 340 U.S. 268, 271\
(1951), the Thomas Court stated, "We have thus required that a\
time, place and manner regulation contain adequate standards to\
guide the official\'s decision and render it subject to effective\
judicial review." 534 U.S. at 323.\
'

var WPFootnote12 = 'One way to guard against, or at least correct, a future\
overcharge of this sort would be to include in the parade ordinance\
a provision permitting some type of readily available\
administrative review process. Augusta\'s ordinance allows a parade\
permit applicant to appeal in writing to the City Council within\
five days if "the permit is denied or modified," § 13-5(g). But\
there is no explicit right to appeal from a fee overcharge. See\
Forsyth, 505 U.S. at 133 (noting with disapproval that\
administrator\'s fee decision was "unreviewable"); Thomas, 534 U.S.\
at 23 (noting with approval fact that the ordinance was\
"enforceable on review--first by appeal to the General\
Superintendent of the Park District . . . ."). The absence of an\
explicit review process for fee overcharge was not raised as a\
possible constitutional defect by plaintiffs and hence is not a\
matter for our consideration on appeal.\
'

var WPFootnote13 = 'Citing Thomas v. Chicago Park Dist., 534 U.S. 316 (2002), the\
City points out that the Court upheld a Chicago ordinance allowing\
a total of up to 28 days for the Park District to grant or deny a\
permit application. However, the facts are not comparable to the\
present case, and the question of whether that time period was too\
lengthy does not appear to have been directly at issue in Thomas,\
id. at 323-34.\
'

var WPFootnote14 = 'Nothing herein, of course, prevents the City from merely\
urging, as opposed to requiring, the submission of permit\
applications, when possible, within some longer advance period like\
thirty days, so long as it is clear that an applicant is bound only\
by a shorter period, as discussed.\
'

var WPFootnote15 = 'The district court cited Cent. Florida Nuclear Freeze\
Campaign v. Walsh, 774 F.2d 1515, 1523-24 (11th Cir. 1985), which\
held a city ordinance unconstitutional in part because there was no\
provision exempting indigents from paying the cost for police\
protection, but that case also found that "alternative means of\
exercising First Amendment rights" were not available, which is not\
the case here. Invisible Empire of the Knights of the Ku Klux Klan\
v. Town of Thurmont, 700 F. Supp. 281, 286 (D. Md. 1988), which\
found that the requirement of reimbursing the town for police\
protection and cleanup was unconstitutional because it was not\
"waived or modified for indigents" relied on Walsh for its holding. \
Both cases were decided before Forsyth, which emphasized that a\
license fee that was more than "nominal" was not inherently\
unconstitutional. 505 U.S. at 136-7. Wilson ex rel U.S.\
Nationalist Party v. Castle, 1993 WL 276959 at *4 (E.D. Pa. July\
15, 1993), holding that an insurance requirement was not narrowly\
tailored as applied to persons "who are financially and otherwise\
unable to obtain coverage," involved an insurance requirement,\
which implicates issues of viewpoint discrimination as an insurance\
company may charge more depending on the group being covered, and\
a strict scrutiny analysis not applicable here. Likewise, in\
Invisible Empire Knights of the Ku Klux Klan v. City of West Haven,\
600 F. Supp. 1427, 1435 (D. Conn. 1985), holding a bond requirement\
unconstitutional as applied to those who could demonstrate their\
inability to obtain a bond, the case involved the potential of a\
viewpoint discriminatory "heckler\'s veto" in the application for a\
bond and thus implicates issues not at play here. Plaintiffs\
additionally rely on E. Conn. Citizens Action Group, 723 F.2d at\
1056-57, which was also decided before Forsyth and held that the\
defendant government agency could not charge an administrative fee\
for the sole purpose of deterring frivolous requests but rather\
could charge the fee only to the extent it could demonstrate "its\
necessity as a means of offsetting expenses associated with\
processing applications for access to property under its control." \
Likewise, the plaintiffs\' reliance on Lubin v. Panish, 415 U.S.\
709, 718 (1974) is inapplicable here where the Court found that "in\
the absence of reasonable alternative means of ballot access, a\
State may not, consistent with constitutional standards, require\
from an indigent candidate filing fees he cannot pay." The\
plaintiffs here have alternate means of expressing their views in\
the city of Augusta. The case perhaps most helpful to the\
plaintiffs is Van Arnam v. GSA, 332 F. Supp. 2d 376, 406 (D. Mass.\
2004), where the district court, relying on several of the above\
cases, held unconstitutional an indemnification/hold harmless\
requirement on the grounds that the absence of an indigency waiver\
suppressed more speech than was necessary and thus was not narrowly\
tailored. 332 F. Supp. 2d at 406. The analysis did not thus turn\
on the availability of alternative means of expression (which the\
district court had found were available). To the extent that the\
two cases are comparable, we disagree with the narrow tailoring\
conclusion in Van Arnam.\
'

var WPFootnote16 = ' The dual rationale arises in the judicial access cases,\
where the due process concern relates to the "essential fairness of\
the state-ordered proceedings anterior to adverse state action" and\
the equal protection concern "relates to the legitimacy of fencing\
out would-be appellants based solely on their inability to pay core\
costs." M.L.B., 519 U.S. at 120. However, Justice Ginsburg noted\
in M.L.B. that most of the decisions used an equal protection\
framework. Id.\
'

var WPFootnote17 = ' Among the cases cited were Regan v. Taxation with\
Representation of Wash., 461 U.S. 540 (1983), which rejected a\
nonprofit organization\'s claims, on First Amendment and equal\
protection grounds, that they were entitled to receive tax\
deductible contributions to support their lobbying activity, and\
Harris v. McRae, 448 U.S. 297 (1980), which held that women seeking\
medically necessary abortions were not entitled to Medicaid\
funding.\
'

var WPFootnote18 = '  My analysis considers only speech on matters of public\
concern, the type of expression for which the plaintiffs in this\
case sought parade permits. \
'

var WPFootnote19 = ' The majority opinion notes that, despite the Supreme Court\'s\
consideration of parade permits in some detail in Forsyth, the\
Court did not there "suggest[] that an indigency exception is\
constitutionally required." The indigency issue was not before the\
Court in Forsyth. The Court granted certiorari in Forsyth "to\
resolve a conflict among the Courts of Appeals concerning the\
constitutionality of charging a fee for a speaker in a public\
forum." 505 U.S. at 129. The five justices in the Forsyth\
majority bypassed the question of the permissible size of a fee,\
concluding that the challenged ordinance was invalid because it\
lacked procedural safeguards and tied the fee to the content of\
speech. Id. at 137.\
'

var WPFootnote20 = ' Plaintiffs\' Statement of Material Facts reported that\
Sullivan sought to participate in the march "as a way of expressing\
his opposition to the war in Iraq and as a way of publicly\
advocating the need for affordable health care, veterans\' rights\
and benefits, and living wage jobs, and as a way of associating\
himself publicly with individuals and groups who share his views." \
According to the Statement, Dansinger sought to march "as a way of\
expressing his opposition to the war in Iraq, supporting the\
Million Worker march and publicly advocating the need for economic\
justice in America, and to associate with others to advocate\
effectively for those goals."\
'

var WPFootnote21 = '  Mass marches alongside well traveled roads also have a long\
history and can have dramatic communicative effect. See, e.g.,\
Williams v. Wallace, 240 F. Supp. 100, 104-05, 107-08 (D.C. Ala.\
1965) (describing disrupted Selma-to-Montgomery voting rights march\
on March 7, 1965, and proposal for a subsequent march later that\
month).\
'

var WPFootnote22 = ' From a case-specific perspective, the sidewalk option here\
was particularly limiting. Deputy Police Chief Gregoire stated in\
his deposition that the sidewalks along the appellees\' proposed\
parade route had room for two, perhaps three, people of average\
size to walk side-by-side. \
'

var WPFootnote23 = ' Professor Neisser also noted the importance of ensuring free\
public fora:\
                   The first amendment may not mandate or even tolerate\
affirmative government action to overcome the disparities\
in communicative effectiveness wrought by the\
marketplace\'s pricing structure and the differing\
financial resources of competing groups. Yet, if the\
first amendment is to assure a safety valve for\
dissatisfaction, genuine discussion of public policy,\
ascertainment of new scientific truths or cultural forms,\
and individual self-development, the public system of\
expression must, at a minimum, avoid replicating the\
private market\'s price structure and thereby reinforcing\
its inequities.\
\
74 Geo. L. J. at 297 (footnotes omitted). \
'

var WPFootnote24 = ' Pittsburgh\'s application fee for "First Amendment Activity"\
is set at an amount that "reflects the cost of evaluation and\
scheduling the event." § 470.04. The city also requires payment\
of "cost recovery fees" for the cost of providing public safety and\
public works services. § 470.06. The total for the application\
and cost recovery fees for parades may not exceed specified amounts\
that vary depending on the parade\'s timing and duration. For\
example, the maximum charge for a weekday parade lasting no more\
than two hours is $500 while the maximum is $3,000 for a parade on\
a weekend or city holiday that lasts more than two hours. § 470.04. \
However, the city assumes the first $750 of "all costs associated\
with First Amendment Activity, Parades, community events and block\
parties." § 470.06(d). Costs for city services that exceed $750\
are split equally between the City and the Special Event sponsor,\
with parades being subject to the maximum fees stated in § 470.04. \
Id. \
'

var WPFootnote25 = ' Professor Neisser reported that such an approach was adopted\
by the City of Palo Alto, California. See Neisser, 74 Geo. L.J. at\
339 n.387.\
'

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