Intl Women's Day March Com, et al v. City of San Antonio, et al

Filing

PUBLISHED OPINION FILED. [09-50692 Affirmed ] Judge: FPB , Judge: CES , Judge: LHS Mandate pull date is 09/29/2010 [09-50692]

Intl Women's Day March Com, et al v. City of San Antonio, et al

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
September 8, 2010 N o . 09-50692 Lyle W. Cayce Clerk

I N T E R N A T I O N A L WOMEN'S DAY MARCH PLANNING COMMITTEE, an u n in c o r p o r a t e d association; SAN ANTONIO FREE SPEECH COALITION, an u n in c o r p o r a t e d association, P la in t if f s - A p p e lla n t s v. C I T Y OF SAN ANTONIO, PHIL HARDBERGER, in his Official Capacity as M a y o r of the City of San Antonio; SHERYL L. SCULLEY, in her Official C a p a c it y as City Manager of the City of San Antonio; WILLIAM P. M C M A N U S , in his Official Capacity as Chief of Police of the City of San A n t o n io ; THE TEN INDIVIDUAL COUNCIL MEMBERS,

D e fe n d a n t s -A p p e lle e s

A p p e a l from the United States District Court for the Western District of Texas (San Antonio Division)

B e fo r e BENAVIDES, STEWART, and SOUTHWICK, Circuit Judges. F O R T U N A T O P. BENAVIDES, Circuit Judge: T h e City of San Antonio imposes fees on the organizers of marches on its s t r e e t s , as a means of ensuring that march organizers pay for the expense of p r o v id in g traffic control and cleanup for these events. See San Antonio, Tex., C o d e ch. 19, art. XVII, § 19-636(b) (2010). The plaintiffs in this case, the

I n t e r n a t io n a l Women's Day March Planning Committee ("Committee") and the

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No. 09-50692 S a n Antonio Free Speech Coalition ("Coalition"), assert that the assessment of t h e s e fees violates the First Amendment in several respects. San Antonio

s e le c t iv e ly exempts certain events from payment of these fees, and the plaintiffs c h a lle n g e these exemptions on a number of grounds. Also, the plaintiffs assert t h a t San Antonio does not sufficiently constrain the authority of its police d e p a r t m e n t to determine the amount of these fees. They further protest that S a n Antonio lacks adequate venues for expression unburdened by fees. Finding t h e s e claims without support, at least on the basis of the record before us, we a ffir m the district court's grant of summary judgment in favor of San Antonio. I. O n November 29, 2007, San Antonio repealed the ordinance that had r e g u la te d processions and similar activities on its streets since 1988,1 see San A n t o n io , Tex., Ordinance 66526 (Feb. 4, 1988) (the "1988 ordinance"), and r e p la c e d it with a new procession ordinance. See San Antonio, Tex., Ordinance 2 0 0 7 -1 1 -2 9 -1 1 9 3 (Nov. 29, 2007) (the "2007 ordinance"). Shortly thereafter, the p la in t iffs filed the present lawsuit against San Antonio under 42 U.S.C. § 1983, c h a lle n g in g the 2007 ordinance's constitutionality. The Coalition is a group of o r g a n iz a t io n s and individuals who periodically hold street marches in San A n t o n io concerning various political issues. Its co-plaintiff, the Committee, o r g a n iz e s the annual International Women's Day March in San Antonio, the p u r p o s e of which is to express solidarity with all women and to educate p a r tic ip a n t s and the general public about issues affecting women in San Antonio a n d around the world. In their complaint, the plaintiffs asserted that the 2007

After its initial passage, the City Council amended the 1988 ordinance several times. See San Antonio, Tex., Ordinance 101404 (Sept. 15, 2005); San Antonio, Tex., Ordinance 86615 (Sept. 11, 1997); San Antonio, Tex., Ordinance 66526 (July 7, 1988).

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No. 09-50692 o r d in a n c e violated their right to freedom of speech under the U.S. Constitution.2 A s such, they asked the district court to permanently enjoin enforcement of the 2 0 0 7 ordinance. Additionally, since the Committee was planning to hold its a n n u a l parade on March 8, 2008, the plaintiffs also sought a preliminary in ju n c t io n barring enforcement while this case was pending. Later, the

p la in t iffs also amended their complaint to add claims challenging San Antonio's in t e r p r e t a t io n and application of its repealed 1988 ordinance. S e v e r a l months after the plaintiffs filed this lawsuit, on February 21, 2 0 0 8 , the district court issued a preliminary injunction, as it found that there w a s a substantial likelihood that certain aspects of the 2007 ordinance were u n c o n s t it u t io n a l. First, relying on the Supreme Court's decision in Forsyth C o u n ty v. Nationalist Movement, the district court expressed concern that the 2 0 0 7 ordinance granted the San Antonio Police Department ("SAPD") excessive d is c r e t io n in assessing fees to permit applicants to recoup traffic control e x p e n s e s . 505 U.S. 123, 130 (1992). Specifically, the court found excessive d is c r e t io n because the SAPD had no internal written policy guiding its d e c is io n m a k i n g . The court was also troubled that the appeals process

e s t a b l i s h e d for the permit scheme did not clearly authorize challenges to the a m o u n t of fees imposed by the SAPD. Second, following Forsyth County's

h o l d i n g that "[s]peech cannot be financially burdened . . . simply because it m ig h t offend a hostile mob," id. at 134-35, the court disapproved of language in t h e 2007 ordinance suggesting that procession organizers could be charged for t h e cost of providing for "the safety of the event participants and the general p u b lic ." Ordinance 2007-11-29-1193, § 3, § 19-636(B). Third, following our d e c is io n in Knowles v. City of Waco, the court held that the 2007 ordinance's e x e m p t io n of funeral processions and government agencies from its permit
See U.S. Const. amend. I ("Congress shall make no law . . . abridging the freedom of speech . . . .").
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No. 09-50692 s c h e m e was improper, as it called into question whether the permit scheme was n a r r o w ly tailored to meet its purported goal of promoting traffic safety. 462 F.3d 4 3 0 , 436-37 (5th Cir. 2006). A lt h o u g h the district court thought it likely that the plaintiffs would p r e v a il on these claims, it also rejected many of the plaintiffs' other challenges t o the 2007 ordinance. For example, the court rejected the plaintiffs' argument t h a t the ordinance's waiver of fees for certain events demonstrated that the City w a s impermissibly engaging in viewpoint or content discrimination. However, t h e district court enjoined San Antonio from enforcing the unconstitutional a s p e c t s of the 2007 ordinance, thereby forbidding the City from assessing fees t o permit holders for traffic control and cleanup costs.3 S u b s e q u e n t ly , on March 8, 2008, while the injunction was in place, the C o m m it t e e held the International Women's Day March in downtown San A n t o n io . Five days later, on March 13, the San Antonio City Council amended t h e procession ordinance, making several changes addressing the district court's c o n c e r n s . See San Antonio, Tex., Ordinance 2008-03-13-0201 (Mar. 13, 2008) (t h e "2008 ordinance"). The permit scheme was amended to (i) describe in g r e a t e r detail how the SAPD should determine the number of traffic control p e r s o n n e l and devices needed for a procession, see id. § 1, § 19-630(12), § 196 3 6 (C ), (ii) create an appeals process to allow permit holders to challenge the fe e s assessed for their procession, see id. § 1, § 19-636(C), (iii) provide that "[a]ny a d d it io n a l costs for police personnel deemed necessary to provide security due t o the nature of the event will not be assessed to the permit holder," see id., (iv) b r in g funeral processions and the activities of government agencies under the

In its order, the district court noted that its injunction would burden the City by requiring it to subsidize "the costs of marches and parades that take place during the time between the issuance of this Order and a finding that the City has corrected the constitutional defects noted herein."

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No. 09-50692 o r d in a n c e , see id. § 1, § 19-632, and (v) require the chief of police to develop a " w r it t e n Standard Operating Procedure for issuance of permits and assessments o f traffic control costs." See id. § 1, § 19-636(C). Approximately three months la t e r , on June 18, the SAPD released Procedure 214, a thirteen-page document p rov id in g additional guidance to officers regarding San Antonio's permit scheme. See San Antonio Police Dep't, Standard Operating Procedure No. 214, P r o c e s s io n s (Parades, Runs, Walks and Cycling Events) (2008). S e v e r a l days later, the City filed a motion seeking to lift the preliminary in ju n c t io n . The plaintiffs then filed an amended complaint, challenging the 2008 o r d in a n c e , and the City countered by filing a motion seeking summary judgment o n all claims raised by the plaintiffs. Eventually, on March 31, 2009, the district c o u r t lifted the preliminary injunction, having concluded that the City Council's 2 0 0 8 amendments had addressed its concerns with San Antonio's permit scheme fo r processions. Finally, three months later, the court granted summary

ju d g m e n t for the City in a brief order, again suggesting that the City's a m e n d m e n t s had cured any constitutional infirmities the 2008 ordinance may o n c e have had. The plaintiffs now appeal the grant of summary judgment in fa v o r of San Antonio. II. B e fo r e proceeding further, it is necessary to review the contours of San A n t o n io 's current permit scheme for processions. See Ch. 19, art. XVII. The 2 0 0 8 ordinance mandates that "[n]o person shall organize any procession w it h o u t having first obtained a procession permit," id. § 19-631, and defines a " p r o c e s s io n " as being "a group of persons moving along, by whatever means, in a n orderly, formal manner on any street, alley, or public thoroughfare from a p o in t of origin to a point of termination." Id. § 19-630.4 Individuals can obtain
The 2008 procession ordinance also defines "procession" to include a group of persons moving through the city from one point to another "in such a way as to impede the normal flow
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No. 09-50692 p e r m it s by submitting an application describing the planned event and an a p p lic a t io n fee of $75 to the SAPD. Id. § 19-633(a), (e), (f).5 I n addition to paying the application fee, after a permitted event, permit h o ld e r s must reimburse the City for the cost of "[c]leaning up the procession r o u t e " and the cost of any "personnel" and "devices" needed to control traffic d u r i n g the procession. Id. § 19-636(b). Before each procession, the SAPD

a p p r o v e s a traffic control plan and determines "the number of peace officers and t r a ffic control devices reasonably necessary to control traffic in the area of the r e q u e s te d procession," based on a variety of factors listed in the 2008 ordinance a n d Procedure 214. Id. § 19-636(c); Procedure No. 214 at 4-5. When relevant, w e will describe these factors in greater detail below. After each procession, p e r m it holders receive an invoice within fifteen days of their procession, and p a y m e n t must be made during the thirty days following their procession. Ch. 1 9 , art. XVII, § 19-636(c).6 A n o t h e r relevant feature of the 2008 ordinance is that it provides for the s u b s id iz a t io n of certain processions, effectively waiving part or all of the traffic c o n t r o l expenses the City would otherwise expect procession organizers to r e im b u r s e . These subsidization provisions originated in the 2007 ordinance and

or regulation of pedestrian or vehicular traffic." Ch. 19, art. XVII, § 19-630. The 2008 ordinance excludes from the permit scheme sidewalk processions "so long as the movement [of persons] does not impede the normal flow or regulation of pedestrian or vehicular traffic" and also "[a] public assemblage that does not involve the movement of persons in an orderly, formal manner from a point of origin to a point of termination." Id. § 19-632. In other words, procession permits are not required for sidewalk marches involving limited numbers of people and are also not required for stationary assemblies. If permit applicants cannot immediately pay this fee, they may submit an affidavit with their application promising to pay the fee within fifteen business days of submitting their application. Ch. 19, art. XVII, § 19-633(f). As discussed above, the permit scheme now has an appeals process allowing permit holders to challenge the amount of the fees assessed to them. Permit holders may file an appeal with San Antonio's city manager within seven days of receiving an invoice, with no fees due while the appeal is pending. Ch. 19, art. XVII, § 19-636(c).
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No. 09-50692 t h e City Council's 2008 amendments did not affect them. First, San Antonio p r o v id e s special treatment for "First Amendment processions," which have as t h e ir "sole or principal object . . . expressive and associative activity that is p r o t e c t e d by the United States and Texas Constitutions, including speech, press, a s s e m b ly , and the right to petition, but not including commercial advertising." Id. § 19-630. For such processions, San Antonio absorbs the first $3,000 of e x p e n s e s for traffic control personnel and devices, leaving the permit applicant o n ly responsible for traffic control expenses over $3,000 and any cleanup e x p e n s e s . Id. § 19-636(c). In this case, it is undisputed that the International W o m e n 's Day March qualifies as a First Amendment procession and therefore w o u ld be eligible for the City's $3,000 subsidy.7 S e c o n d , the 2008 ordinance also provides special fee waivers for three a n n u a l events, the Diez Y Seis Parade, the Martin Luther King March, and the V e t e r a n s Day Parade. Specifically, the ordinance explains that: B e c a u s e of its broad appeal, historic tradition, cultural significance, a n d other public benefits provided by the Deiz Y Seis Parade, the c it y shall cover the costs of traffic control personnel. Because of t h e ir broad appeal, historic tradition, cultural significance, a s s o c ia t io n with a national holiday or a day given statewide r e c o g n it io n , and other public benefits provided by the Martin Luther K in g March and the Veterans Day Parade, the city shall cover the c o s t s of traffic control personnel and traffic control devices. I d . § 19-636(d). Beyond these three events, the City also provides fee waivers for s e v e r a l other events, which will be described in greater detail below. III.

We note that in the district court, the plaintiffs challenged the definition of First Amendment processions on vagueness and overbreadth grounds. They have not chosen to pursue this claim on appeal, and thus we do not address the propriety of the City's definition of First Amendment processions or the propriety of excluding certain processions from receiving this designation.

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No. 09-50692 W ith this background complete, we now address some preliminary matters t h a t will help structure our analysis. First, we describe the standards governing o u r review of the district court's grant of summary judgment and explain the F ir s t Amendment principles relevant for this case. Second, we briefly outline t h e plaintiffs' claims, assess whether these claims are facial or as-applied, and d e t e r m in e what evidence is properly before us on this appeal. A. A s noted above, the plaintiffs appeal from the district court's grant of s u m m a r y judgment in favor of San Antonio. We review a grant of summary ju d g m e n t "de novo, applying the same legal standards as the district court." Knowles, 462 F.3d at 434. Summary judgment is appropriate when "the

p le a d in g s , the discovery and disclosure materials on file, and any affidavits show t h a t there is no genuine issue as to any material fact and that the movant is e n tit le d to judgment as a matter of law." Fed. R. Civ. P. 56(c). "We construe all fa c t s and inferences in the light most favorable to the nonmoving party when r e v ie w in g grants of motions for summary judgment." Murray v. Earle, 405 F.3d 2 7 8 , 284 (5th Cir. 2005). E v e n t s like the International Women's Day Parade are forms of expression p r o t e c t e d under the First Amendment. See Hurley v. Irish-Am. Gay, Lesbian a n d Bisexual Grp. of Boston, 515 U.S. 557, 569 (1995) (explaining that "[n]ot m a n y marches . . . are beyond the realm of [protected] expressive parades"). As s u c h , San Antonio bears the burden of demonstrating that its regulation of this e x p r e s s iv e activity is constitutionally permissible. See Hays County Guardian v . Supple, 969 F.2d 111, 118 (5th Cir. 1992). That said, defending the

c o n s t it u t io n a lit y of fees like those at issue in this case is not always an im p o s s ib le task. The Supreme Court has long recognized that when groups hold e v e n t s on public property, municipalities may impose fees as part of a permit s c h e m e controlling this activity, see Cox v. New Hampshire, 312 U.S. 569, 577 8

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No. 09-50692 (1 9 4 1 ) (approving of license fee imposed on parade organizers for purpose of " m e e t [in g ] the expense incident to the administration of the [licensing scheme] a n d to the maintenance of public order in the matter licensed"), as long as these fe e s "meet certain constitutional requirements." Forsyth County, 505 U.S. at 1 3 0 . We now explain these requirements. P e r m it schemes that allow licensors to censor speech on the basis of its c o n t e n t are prior restraints on speech, against which there is a heavy p r e s u m p t io n of invalidity. See Thomas v. Chi. Park Dist., 534 U.S. 316, 320-21 (2 0 0 2 ); Forsyth County, 505 U.S. at 130-33. A permit scheme's restrictions " b a s e d on the content of the speech must satisfy strict scrutiny, that is, the r e s t r ic t io n must be narrowly tailored to serve a compelling government interest, a n d restrictions based on viewpoint are prohibited." Pleasant Grove City v. S u m m u m , 129 S. Ct. 1125, 1132 (2009) (internal citation removed). Given this a v e r s io n to content discrimination, permit schemes may not vest government o ffic ia ls with overly broad discretion in assessing fees, because "government r e g u la tio n that allows arbitrary application . . . `has the potential for becoming a means of suppressing a particular point of view.'" Forsyth County, 505 U.S. at 1 3 0 (citing Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 6 4 9 (1981)); see also Thomas, 534 U.S. at 323 ("Where the licensing official e n jo y s unduly broad discretion in determining whether to grant or deny a p e r m it , there is a risk that he will favor or disfavor speech based on its c o n t e n t ." ). However, a permit scheme "controlling the time, place, and manner o f speech" is permissible, as long as it is not "based on the content of the m e s s a g e ," is "narrowly tailored to serve a significant governmental interest," and " le a v e [s ] open ample alternatives for communication." Forsyth County, 505 U.S. a t 130; see also Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 4 5 (1983). B. 9

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No. 09-50692 T h e plaintiffs assert that the fees imposed by San Antonio do not satisfy t h e s e constitutional requirements, essentially raising four claims. First, they a r g u e that San Antonio's payment of traffic control expenses for certain p r o c e s s io n s establishes that the City is engaging in impermissible content or v iew p oin t-b a s e d discrimination in assessing fees.8 Second, they contend that the C it y Council and the SAPD have excessive discretion in assessing fees, allowing t h e m to impose fees based on the content of permit applicants' speech. Third, t h e y argue that the fee exemptions granted certain groups reveal that the fees im p o s e d by San Antonio are not narrowly tailored to meeting the City's stated g o a l of recouping traffic control expenses. Fourth, they claim that San Antonio's le v y of fees on permit applicants is impermissible because the City lacks other a lt e r n a t e venues open for unburdened expression.9 B e fo r e assessing these claims, we now address several interrelated issues c o n c e r n in g the scope of this appeal and the evidence before us. First, we find t h a t the plaintiffs may only bring a facial challenge to the 2008 ordinance. In

The plaintiffs also assert that San Antonio's selective waiver of fees violates the Equal Protection Clause of the Constitution. See U.S. Const. amend. XIV ("No state shall . . . deny to any person within its jurisdiction the equal protection of the laws."). However, the plaintiffs have not argued this claim in any way that is distinct from their general viewpoint discrimination claim. As such, this claim is subsumed within our analysis of content and viewpoint discrimination. The parties also dispute whether the fees imposed by San Antonio qualify as a prior restraint on speech. San Antonio notes that under the 2008 ordinance, procession organizers need not pay any traffic control fees until after an event has taken place. See Ch. 19, art. XVII, § 19-636(c). Consequently, they suggest these fees cannot be a prior restraint. We find that it matters little for our analysis that the plaintiffs only need to pay traffic control fees after their processions are complete. The Third Circuit recently struck down an ordinance that vested excessive discretion in a licensor to determine fees for police and cleanup costs, despite the fact that payment was not due until after the event. Nationalist Movement v. City of York, 481 F.3d 178, 181, 186 (3d Cir. 2007). The court reasoned that contingent payment after an event would be "even more offensive to the First Amendment than" fixed payments before an event, since an event organizer "would have no way of knowing the scope of the liability to which it might be subjecting itself." Id. at 186. We agree with the Third Circuit and find that San Antonio's fees cannot escape scrutiny simply because they are imposed after a procession.
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No. 09-50692 p a r tic u la r , we conclude that the plaintiffs cannot pursue an as-applied challenge a g a in s t the informal waivers of traffic control fees that the SAPD granted to m a n y processions under the repealed 1988 ordinance. Second, we determine the n u m b e r of processions for which San Antonio waives fees under the 2008 o r d i n a n c e . The plaintiffs have argued that San Antonio interprets the 2008 o r d in a n c e to allow for more fee waivers than it explicitly lists. W e address these issues preliminarily, as they are important for a number o f the plaintiffs' claims. For example, the number of fee waivers granted by San A n t o n io is relevant for our analysis of viewpoint discrimination. Similarly, b e fo r e assessing the plaintiffs' claims regarding the discretion held by the City C o u n c il and the SAPD, we must determine whether San Antonio's practices u n d e r the repealed 1988 ordinance are before us on this appeal. i. W e now assess whether the plaintiffs' claims are facial or also as-applied. To prevail on a facial challenge, a plaintiff must establish that "no set of c ir c u m s t a n c e s exists under which [the challenged law] would be valid," see U n ite d States v. Salerno, 481 U.S. 739, 745 (1987), or at least that the challenged la w does not have any "`plainly legitimate sweep.'" Wash. State Grange v. Wash. S ta te Republican Party, 552 U.S. 442, 449 (2008) (quoting Washington v. G lu c k s b e r g , 521 U.S. 702, 739-740 & n.7 (1997) (Stevens, J., concurring)).1 0 W e find that the plaintiffs may only bring a facial challenge to the 2008 o r d in a n c e on this appeal, as they never clearly raised an as-applied challenge to t h e 2008 ordinance in the district court. "If a party wishes to preserve an

In the First Amendment context, the Supreme Court has applied a more flexible standard for facial challenges when a plaintiff challenges a law as being unconstitutionally overbroad. For overbreadth claims, a facial challenge may succeed when "a `substantial number' of [a law's] applications are unconstitutional, `judged in relation to the [law's] plainly legitimate sweep.'" See Wash. State Grange, 552 U.S. at 449 n.6 (quoting New York v. Ferber, 458 U.S. 747, 769-71 (1982)). In this case, the plaintiffs have not asserted on appeal that any of their claims fall under the overbreadth doctrine.

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No. 09-50692 a r g u m e n t for appeal, the party `must press and not merely intimate the a r g u m e n t during the proceedings before the district court.'" Keelan v. Majesco S o ftw a r e , Inc., 407 F.3d 332, 340 (5th Cir. 2005) (quoting New York Life Ins. Co. v . Brown, 84 F.3d 137, 141 n. 4 (5th Cir. 1996)). The record is replete with r e f e r e n c e s to a facial challenge, but is bare of any explicit reference to an asa p p lie d challenge to the 2007 or 2008 versions of the current procession o r d in a n c e .1 1

W e also reject any as-applied challenge to the repealed 1988 ordinance. As noted above, in their complaint, the plaintiffs seek relief from San Antonio's " a p p lic a t io n " of the 1988 ordinance. Also, during this litigation, the plaintiffs h a v e asserted that the informal fee assessment "policies" of San Antonio are u n c o n s t i t u t io n a l, relying on evidence concerning the enforcement of the 1988 o r d in a n c e . In particular, it appears that under the 1988 ordinance, individual m e m b e r s of the San Antonio City Council sometimes intervened with the SAPD

Repeatedly, plaintiffs' claims were characterized as being facial during the proceedings below, without protest from the plaintiffs. In the district court's order enjoining the enforcement of portions of the 2007 ordinance, the court characterized the plaintiffs' claims as being facial. Subsequently, in San Antonio's motion for summary judgment, the City stated, "The Plaintiffs in this case raise facial constitutional challenges to the March Ordinance." In response, in the plaintiffs' motion opposing summary judgment, they never explicitly stated that they were asserting any as-applied claims; instead, they stated that "even in a facial challenge to the new ordinance," courts must consider San Antonio's "authoritative constructions of the ordinance, including its own implementation and interpretation of it." Forsyth County, 505 U.S. at 131. This pattern repeated when the City and the plaintiffs filed proposed conclusions of law with the district court. In the plaintiffs' proposed conclusions of law, they argued that they had "standing to bring a facial challenge" and made other arguments concerning facial claims, but made no mention of as-applied claims. Later, in a hearing before the district court on January 15, 2009, the plaintiffs again did not counter the City's characterization of their claims as being facial. Counsel for San Antonio questioned the relevance of certain evidence for the plaintiffs' case, stating that,"As I understand this case, it is a facial challenge to the ordinance." In response, counsel for the plaintiffs again did not assert that they were bringing any as-applied claims, but rather explained that "in order to rule on the facial challenge, we need to look at" San Antonio's "interpretations" of its ordinance.

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No. 09-50692 t o obtain informal fee waivers for particular processions, without obtaining fo r m a l city sponsorship of these processions or passing ordinances granting such w a iv e r s . For example, deposition testimony indicates that in 2005, the SAPD w a iv e d traffic control fees for thirty-two of the forty-two processions worked by t h e police. Based on evidence like this, the plaintiffs challenge not only the 2008 o r d in a n c e , but also San Antonio's informal fee waiver policies under the 1988 o r d in a n c e . W e fail to see how a challenge to the enforcement of the 1988 ordinance p r e s e n t s a live controversy, given the ordinance's repeal. "Suits regarding the c o n s t it u t io n a lit y of statutes become moot once the statute is repealed." McCorvey v. Hill, 385 F.3d 846, 849 (5th Cir. 2004). Furthermore, San Antonio d o e s not interpret the 2008 ordinance to authorize the practices carried out u n d e r the 1988 ordinance,1 2 and on this facial challenge to the 2008 ordinance, w e must consider the City's "authoritative constructions" and "interpretations" o f its ordinance. Forsyth County, 505 U.S. at 131. The First Circuit has

o b s e r v e d that "it would be pointless . . . to enjoin the enforcement of a [policy] t h a t is no longer in effect." See New England Reg'l Council of Carpenters v. K in to n , 284 F.3d 9, 18 (1st Cir. 2002). Given these considerations, we conclude t h a t any as-applied challenge to the enforcement of the repealed 1988 ordinance is moot. As such, the only claim before us on this appeal is a facial challenge to S a n Antonio's 2008 ordinance.1 3

During a hearing before the district court on December 20, 2007, counsel for San Antonio explained that the "door [for informal waivers] has been basically closed [under the new ordinance,] because there is no longer that discretion of a group calling up the Council, their Council representative and saying: I would like waiver of this or that." Although not raised by the parties, we find that the plaintiffs have standing to bring their facial challenge to the procession ordinance. "Chilling a plaintiff's speech is a constitutional harm adequate to satisfy the injury-in-fact requirement." Hous. Chronicle Publ'g Co. v. City of League City, 488 F.3d 613, 618 (5th Cir. 2007). Even when an injunction has blocked the enforcement of an ordinance against particular plaintiffs, we have found that
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No. 09-50692 ii. H a v in g established that the only claims properly before us are facial, we n o w review the evidence before us concerning the number of processions that S a n Antonio exempts from fees under the 2008 ordinance. As already noted, w h e n evaluating a facial challenge to an ordinance, we must consider a m u n i c ip a lit y 's "authoritative constructions of the ordinance, including its own im p le m e n ta t io n and interpretation of it." Forsyth County, 505 U.S. at 131. Thus, if there is evidence that San Antonio provides fee waivers for more p r o c e s s io n s than are explicitly listed in the 2008 ordinance, we may consider t h e s e exemptions in our analysis. I t is clear that San Antonio provides fee waivers for more events than the 2 0 0 8 ordinance lists. As explained above, the 2008 ordinance explicitly

e s t a b lis h e s fee waivers for the Diez Y Seis Parade, the Martin Luther King M a r c h , and the Veterans Day Parade. See Ch. 19, art. XVII, § 19-636(d). Beyond these events, it is also clear that San Antonio provides fee waivers for

such plaintiffs have standing to challenge the enjoined ordinance, so long as they demonstrate that they engage in activity that is regulated by the challenged ordinance. Id. at 618-19. In this case, the district court's injunction prevented the City from completely enforcing the 2007 version of the current ordinance against the Committee. However, it is clear that the Committee engages in activity regulated by the ordinance. After the district court enjoined San Antonio from assessing traffic control and cleanup fees, the Committee did in fact proceed with the International Women's Day March. Cf. id. at 618 (finding standing when "following entry of . . . injunction," plaintiff engaged in activity proscribed by enjoined ordinance). Furthermore, we find that the plaintiffs have standing to challenge the fee exemptions provided to third parties by San Antonio. In similar circumstances, the Supreme Court has found that plaintiffs adversely affected by a law have standing to challenge exemptions granted to others similarly situated. See Arkansas Writers' Project, Inc. v. Ragland, 481 U.S. 221, 227 (1987). This conclusion is not inconsistent with our recent decision in SEIU v. City of Houston, 595 F.3d 588 (5th Cir. 2010). In SEIU, we concluded that a plaintiff did not have standing to raise a content discrimination claim against a municipal sound ordinance that granted exemptions to certain activities, such as "historical re-enactments, construction noises, noises from parks and school grounds, and church bells." Id. at 598. However, importantly, in SEIU, the plaintiff had not argued that these exemptions "interfered with its planned activities." Id. at 597. In contrast, in this case, the fees that San Antonio imposes on the plaintiffs, allegedly on a discriminatory basis, clearly interfere with their processions. The plaintiffs have standing to challenge this alleged discrimination.

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No. 09-50692 t h e annual Cesar Chavez Parade and processions related to the annual Fiesta S a n Antonio celebration. Separate city ordinances grant financial support to t h e s e events,1 4 and the record shows that when the City Council adopted the c u r r e n t procession ordinance, the Council did not intend to disturb its p r e e x is t in g support for these events.1 5 Additionally, in proceedings before the d is t r ic t court, counsel for San Antonio suggested that the City also waives fees fo r the annual 60+ Mardi Gras Parade, which is a city-sponsored event.1 6 I n their briefing, however, the plaintiffs allege that the City also supports o t h e r processions under the 2008 ordinance, such as the annual Juneteenth C e le b r a t io n and the San Fernando Easter Procession. As proof, they cite to v a r io u s documents in the record. First, the record contains a March 2007 staff p r e s e n t a t io n to the City Council that suggests planned fee waivers for the San F e r n a n d o Easter Procession and the San Antonio Marathon, among other e v e n t s . This presentation is not helpful, however, as it does not reveal the c u r r e n t scope of exemptions under the 2008 ordinance. When San Antonio was c o n s id e r in g repealing the 1988 ordinance, early drafts of its replacement c o n t a in e d fee waivers not present in the 2008 ordinance. Second, the plaintiffs also cite to spreadsheets showing the fees paid to S a n Antonio for traffic control personnel expenses from 2003 to April 2008. Most o f the information contained in these documents is not helpful for this appeal,

See, e.g., San Antonio, Tex., Ordinance 90421, § 6 (Sept. 2, 1999) ("Funding for an annual Cesar Chavez Parade will be identified during the annual budget process each year."). At the City Council's November 29, 2007 meeting, the Council reviewed a PowerPoint presentation that explained that "[o]ther ordinances already provide that the city will cover the costs associated with . . . Fiesta Parades and related events [and the] Cesar Chavez March." During the December 20, 2007 hearing, counsel explained that the 60+ Mardi Gras Parade is sponsored by the City and therefore argued that "to pay fees [for the 60+ Mardi Gras Parade] would be essentially taking money from one pocket of the City and placing it in the other pocket of the City."
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No. 09-50692 a s it concerns the City's practices under the 1988 ordinance or during the period w h e n the district court's preliminary injunction interfered with the collection of fe e s under the 2007 and 2008 versions of the current ordinance.1 7 That said, t h e s e documents do contain information regarding the enforcement of the c u r r e n t ordinance from December 9, 2007, the date it became effective, see O r d in a n c e 2007-11-29-1193, § 8, to February 21, 2008, the date the district court e n te r e d its injunction. This evidence, however, is also not helpful for the

p la in t iffs , as it does not reveal that the SAPD granted any fee waivers beyond t h o s e explicitly authorized in the 2007 and 2008 versions of the procession o r d in a n c e .1 8 Thus, the record shows that San Antonio provides fee waivers for m o r e processions than are explicitly listed in the 2008 procession ordinance, but n o t as many processions as the plaintiffs allege. IV . W it h these preliminary matters finally behind us, we now address whether S a n Antonio engages in content or viewpoint-based discrimination in waiving t r a ffic control fees for a limited number of processions. As noted above, contentb a s e d burdens on speech in a public forum are subject to strict scrutiny, while v ie w p o in t -b a s e d burdens are unconstitutional. Summum, 129 S. Ct. at 1132.

As noted above, when the City Council amended the 2007 ordinance on March 8, 2008, the Council changed none of the provisions waiving fees for various events. Thus, the 2007 and 2008 ordinances are identical in this respect. Between December 9, 2007 and February 21, 2008, three processions occurred for which San Antonio received no fee payment. However, the spreadsheets make clear that the SAPD did not waive fees for any new processions during this period. First, La Gran Posada San Fernando occurred on December 16, 2007. There is "no record of payment" for this procession, but the spreadsheet confirms that the SAPD sent the procession organizers a bill for $1,070 on December 27, 2007. The failure of a procession organizer to pay a bill is not evidence of a fee waiver. Second, the Rodeo Run occurred on January 2, 2008. The SAPD received no fee payment for this procession, but the spreadsheet also notes that the SAPD did not provide any traffic control personnel for it. Third, the Martin Luther King March occurred on January 21, 2008. The SAPD received no fee payment for this event, but the 2007 and 2008 versions of the current ordinance waives these fees.
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No. 09-50692 T h e plaintiffs assert that San Antonio is impermissibly imposing viewpointb a s e d financial burdens on expression in a public forum, as the City waives o t h e r w is e applicable traffic control fees for certain events because of their "broad a p p e a l, historic tradition, cultural significance, and [provision of] other public b e n e fits ." Ch. 19, art. XVII, § 19-636(d). In other words, if the Committee were n o t organizing the International Women's Day March, but rather helping to o r g a n iz e the Martin Luther King March, the City would not charge them for the c o s t of personnel and devices used to control traffic during their procession. In response to the plaintiffs, San Antonio defends its waivers by claiming t h a t its financial support for particular events constitutes government speech, w h ic h "is exempt from First Amendment scrutiny." See Johanns v. Livestock M k tg . Ass'n, 544 U.S. 550, 553 (2005). In the alternative, San Antonio argues t h a t it is not engaging in viewpoint discrimination, in that its provision of s u p p o r t for certain events does not establish that the City imposes fees on the p la in t iffs because of a disagreement with their message. It also cites to Supreme C ou rt precedent suggesting that it may selectively subsidize some private speech o f its choice, as long as it does not engage in viewpoint discrimination. See

Regan v. Taxation With Representation of Wash., 461 U.S. 540, 548-49 (1983)
(" [A ] legislature's decision not to subsidize the exercise of a fundamental right d o e s not infringe the right, and thus is not subject to strict scrutiny."). Although S a n Antonio has not shown that its financial support for certain events is g o v e r n m e n t speech, we believe the City may selectively subsidize some p r o c e s s io n s and not others, as we conclude that it is not engaging in viewpoint d is c r im in a t io n . A. A s an initial matter, we conclude that San Antonio has not established t h a t its financial support for events like the Martin Luther King March and C e s a r Chavez Parade constitutes government speech. The Supreme Court has 17

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No. 09-50692 h e ld that ostensibly private speech can qualify as government speech "[w]hen t h e government disburses public funds to private entities to convey a g o v e r n m e n t a l message" and "take[s] steps to ensure that its message is neither g a r b le d nor distorted by the" private speaker. See Rosenberger v. Rector and V is ito r s of Univ. of Va., 515 U.S. 819, 833 (1995). As such, for private speech to b e c o m e the government's own, the government must exercise a high degree of c o n t r o l over speech, "`effectively controll[ing]'" a message by "exercising `final a p p r o v a l authority' over [its] selection." Summum, 129 S. Ct. at 1134 (quoting J o h a n n s , 544 U.S. at 560-61). Thus, in Johanns v. Livestock Marketing Ass'n, t h e Supreme Court found that advertisements encouraging beef consumption c o u ld be classified as government speech, as the federal government had "set[] t h e overall message to be communicated and approve[d] every word that [was] d is s e m in a t e d ." 544 U.S. at 562. Similarly, in Chiras v. Miller, we held that the T e x a s State Board of Education's selection of certain science textbooks on the b a s is of its "editorial judgment" constituted government speech. 432 F.3d 606, 6 1 5 (5th Cir. 2005). And more recently, in Pleasant Grove City v. Summum, the S u p r e m e Court held that a local government's selection of certain permanent m o n u m e n t s for placement on public land constituted government speech, noting t h a t "[a]cross the country, `municipalities generally exercise editorial control o v e r donated monuments through prior submission requirements, design input, r e q u e s t e d modifications, written criteria, and legislative approvals of specific c o n t e n t proposals.'" 129 S. Ct. at 1133 (citation omitted). A s s u m in g arguendo that processions could in some circumstances qualify a s government speech, we conclude that San Antonio has not demonstrated that it s procession sponsorship is government speech. The City has made no showing t h a t it exercises any control over the messages conveyed at its sponsored events, o t h e r than endorsing the general message of each event through its provision of fin a n c ia l support. Unlike the textbooks and monuments discussed above, San 18

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No. 09-50692 A n t o n io cannot inspect all the messages conveyed at a procession before it makes it s sponsorship decision. Cf. Hurley, 515 U.S. at 569 (noting many "multifarious" m e s s a g e s conveyed at Boston St. Patrick's Day Parade). In such circumstances, fo r sponsorship of a procession to qualify as government speech, a municipality m u s t , at the very least, make some bare showing of organizational or planning in v o lv e m e n t in a procession. San Antonio has not made any.1 9 Consequently, t h e City's financial support for certain processions is not government speech e x e m p t from First Amendment scrutiny, at least not on the basis of the record b e fo r e us. B. H o w e v e r , even if San Antonio's financial support for certain processions d o e s not qualify as government speech, this does not mean that it is im p e r m is s ib le . In a number of cases, the Supreme Court has suggested that as lo n g as the government does not engage in viewpoint discrimination, it may fr e e ly subsidize private speech of its choice, while not subsidizing other private s p e e c h . See Regan, 461 U.S. at 549 ("[A] legislature's decision not to subsidize t h e exercise of a fundamental right does not infringe the right, and thus is not s u b je c t to strict scrutiny."); see also Legal Servs. Corp. v. Velazquez, 531 U.S. 5 3 3 , 542 (2001) (suggesting that viewpoint discrimination is improper when p u r p o s e of government subsidization is "to facilitate private speech, not to

promote a governmental message").

Therefore, San Antonio's decision to

s e le c t iv e ly subsidize a limited number of events could be permissible, as long as t h e City does not "discriminate invidiously in its subsidies in such a way as to `a im at the suppression of dangerous ideas,'" Regan, 461 U.S. at 548 (quoting C a m m a r a n o v. United States, 358 U.S. 498, 513 (1959)), or "leverage its power

The scope of San Antonio's involvement with the 60+ Mardi Gras Parade may be greater than its involvement with other processions, but San Antonio has not addressed this in its briefing.

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to award subsidies . . . into a penalty on disfavored viewpoints." Endowment for the Arts v. Finley, 524 U.S. 569, 587 (1998).

Nat'l

W e find that San Antonio is not engaging in content or viewpoint-based d is c r im in a t io n , at least not by waiving fees for the limited number of events u n d e r consideration in this case. Our recent decision in Palmer ex rel. Palmer v . Waxahachie Independent School District is instructive for our analysis. 579 F .3 d 502 (5th Cir. 2009). In Palmer, we considered a school dress code that p r o h ib it e d students from wearing shirts with messages, but had exemptions for s h ir t s with "small logos" and "`principal approved' shirts that promoted school c lu b s , organizations, athletic teams, or `school spirit.'" Id. at 509. Like the 2008 o r d in a n c e , the school policy in Palmer was a generally applicable policy that, due t o certain exemptions, appeared on its face to treat protected speech differently o n the basis of its content. Nevertheless, we concluded that "`the principal in q u ir y in determining content-neutrality, in speech cases generally and in time, p la c e , or manner cases in particular, is whether the government has adopted a r e g u la tio n of speech because of disagreement with the message it conveys.'" Id. a t 510 (quoting Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)). Therefore, since the school district "was in no way attempting to suppress any s t u d e n t 's expression through its dress code," we found that the code was contentn e u t r a l. Id. Similarly, in this case, San Antonio's provision of financial support fo r certain processions does not demonstrate that it bears any animus against t h e viewpoints expressed by the plaintiffs in the International Women's Day P a r a d e or other marches. San Antonio is not singling out disfavored viewpoints fo r sanction; instead, it is singling out a limited number of favored messages for s p e c ia l treatment. Under Palmer, this is permissible.2 0

Palmer concerned the constitutionality of a school's dress code, a subject somewhat different than the one we confront today. This difference aside, our decision in Palmer rested on Ward, where the Supreme Court considered the permissibility of New York City's

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No. 09-50692 W e recognize that there is some Supreme Court precedent that arguably s u p p o r t s the plaintiffs' arguments concerning discrimination. For example, the S u p r e m e Court has sometimes found statutes that grant preferential treatment t o favored speakers, while equally burdening other speakers, to be contentb a s e d . See Carey v. Brown, 447 U.S. 455, 460-61 (1980) (striking down law that r e s t r ic t e d all picketing in certain area, except labor-related picketing); Police D e p 't v. Mosley, 408 U.S. 92, 95 (1972) (same). However, more recently, the S u p r e m e Court has suggested that when municipalities grant waivers of permit r e q u ir e m e n t s to certain speakers, our focus should be on whether the pattern of w a iv e r s reflects a desire to suppress disfavored viewpoints.2 1 Furthermore, in t h e Supreme Court's cases discussing government subsidization of private s p e e c h , the Court has also focused on whether the government is using its s u b s id ie s as a means of singling out disfavored viewpoints for penalty.2 2 In this c o n t e x t , we do not believe San Antonio is engaging in viewpoint discrimination b y providing a benefit to a limited number of speakers.

regulation of speech in a public forum. 491 U.S. at 791. Thus, Palmer is relevant for this case. Specifically, in Thomas v. Chicago Park District, the Court stated that "[g]ranting waivers to favored speakers (or, more precisely, denying them to disfavored speakers) would . . . be unconstitutional." 534 U.S. at 325 (emphasis added). San Antonio does not treat the plaintiffs as disfavored speakers by providing a benefit to a select number of processions. See Ysursa v. Pocatello Educ. Ass'n, 129 S. Ct. 1093, 1098 (2009) (upholding state's ban on using payroll deductions for political purposes because prohibition was not "`aimed at the suppression of dangerous ideas'" (quoting Regan, 461 U.S. at 548) (internal brackets removed)); Velazquez, 531 U.S. at 547 (striking down program subsidizing legal services that had effect of suppressing "ideas thought inimical to the Government's own interest"); Finley, 524 U.S. at 587 (upholding government's selective subsidization of art, but leaving door open for as-applied challenge if government "leverage[d] its power to award subsidies . . . into a penalty on disfavored viewpoints"); Rosenberger, 515 U.S. at 822-23 (striking down university's singling out of religious student publications for non-subsidization, despite commitment to fund broad range of other student publications); Regan, 461 U.S. at 548 (upholding differential government subsidization of lobbying because government had not "discriminate[d] invidiously in its subsidies in such a way as to `aim at the suppression of dangerous ideas'" (quoting Cammarano, 358 U.S. at 513)).
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No. 09-50692 O n e might object to our reliance on the Supreme Court's subsidization case la w in these circumstances, where San Antonio is imposing a financial burden o n speakers attempting to access a public forum. To the best of our knowledge, n o n e of the Supreme Court's cases concerning subsidization have directly in v o lv e d public fora. Also, the Court has at times justified its support for

s e le c t iv e subsidization by explaining that "`although government may not place

obstacles in the path of a person's exercise of freedom of speech, it need not remove those not of its own creation.'" Regan, 461 U.S. at 549-50 (quoting
H a r r is v. McRae, 448 U.S. 297, 316 (1980) (internal brackets and ellipsis o m it t e d )). In this case, San Antonio's traffic control fees are an "obstacle" that

the plaintiffs must surpass before exercising their speech rights; thus, one might argue that the City may not intervene to selectively subsidize payment of these fees for certain speakers.
However, in our view, public fora need not be a subsidy-free zone. When a municipality imposes reasonable user fees controlling access to public fora, it d o e s not lose its ability to provide financial support for community events held in its public fora. For example, if San Antonio were to provide a block grant to F ie s t a San Antonio in recognition of its positive effect on San Antonio's economy, a n d Fiesta's organizers were to use that grant to pay fees due under the 2008 o r d in a n c e , surely this would be an acceptable use of public funds. Simply put, w e will not "engage in hair-splitting by finding a constitutional difference b e tw e e n waiving a fee and paying it out of the City treasury." See Sullivan v. C ity of Augusta, 406 F. Supp. 2d 92, 113 (D. Me. 2005), aff'd in pertinent part, 5 1 1 F.3d 16, 32 n.7 (1st Cir. 2007). As such, we join with the First and Sixth

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No. 09-50692 C ir c u it s , which have also endorsed municipal subsidization of events held on p u b lic streets.2 3 O f course, even if San Antonio may subsidize events held on its streets, it s t ill may not engage in viewpoint discrimination in its provision of subsidies. Velazquez, 531 U.S. at 542. Thus, while we affirm San Antonio's waiver of fees fo r a limited number of events, we stress that the City's power in this area is not lim it le s s . As noted above, there is disturbing evidence in the record concerning t h e City's practices under the 1988 ordinance, but these are not the facts before u s on this facial challenge to the 2008 ordinance. V. The plaintiffs next argue that the 2008 ordinance grants

u n c o n s t it u t io n a lly excessive discretion to San Antonio's City Council and the S A P D to waive and assess traffic control fees. First, we address whether the C it y Council retains unconstitutional discretion to waive fees, and then we r e v ie w whether the 2008 ordinance and Procedure 214 provide sufficient g u id a n c e to the SAPD in assessing fees. We find that the Council does not retain u n c o n s t it u t io n a l discretion and that the discretion of the SAPD is sufficiently c a b in e d . A. T h e plaintiffs argue that the 2008 ordinance impermissibly vests d is c r e t io n in the City Council to waive traffic control fees, without also providing s t a n d a r d s to guide the Council's exercise of that discretion. They rely primarily o n the Supreme Court's decision in Shuttlesworth v. City of Birmingham, 394

See Sullivan, 511 F.3d at 32 n.7; aff'g in pertinent part 406 F. Supp. 2d at 113 (holding that city had "not maintained or administered [its] Parade Ordinance to disfavor or suppress one viewpoint in favor of another" by financially supporting annual police association's parade); Stonewall Union v. City of Columbus, 931 F.2d 1130, 1138 (6th Cir. 1991) (holding that city may differentially sponsor certain parades, as "the First Amendment guarantee of freedom of speech does not mean that the government must provide funds for or sponsor all speech equally").

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No. 09-50692 U .S . 147 (1969), and the Ninth Circuit's recent decision in Long Beach Area P e a c e Network v. City of Long Beach, 574 F.3d 1011 (9th Cir. 2009). We find t h a t the Council does not have unconstitutional discretion to waive fees under t h e 2008 ordinance. Although the City Council retains permissible legislative d is c r e t io n to grant new reoccurring fee waivers, it has not reserved the right to m e d d le in the permit process on an application-by-application basis under the 2 0 0 8 ordinance. I n Shuttlesworth, the Supreme Court considered the constitutionality of a parade ordinance that granted considerable power to a city commission--an e n tit y akin to a city council--to grant or deny parade permits. Specifically, the o r d in a n c e provided that the commission would "grant a written permit" for a p a r a d e , "unless in its judgment the public welfare, peace, safety, health, decency, g o o d order, morals or convenience require[d] that [the permit] be refused." Id. a t 149-50. The Supreme Court struck the ordinance down for granting "virtually u n b r id le d and absolute power" to the city commission to prohibit parades. Id. a t 150. The Court explained that the ordinance operated as a prior restraint, m a k in g "the peaceful enjoyment of freedoms which the Constitution guarantees c o n t in g e n t upon the uncontrolled will of an official," who could use his or her d is c r e t io n to engage in censorship. Id. at 151 (quoting Staub v. City of Baxley, 3 5 5 U.S. 313, 322 (1958)). M o r e recently, in Long Beach, the Ninth Circuit struck down an ordinance t h a t imposed permit and service fees on march organizers but allowed a city c o u n c il to waive them. 574 F.3d at 1042. Under the ordinance, march

o r g a n iz e r s could write to the city council after their march and request a waiver o f applicable fees. Id. at 1017-18. Relying on Shuttlesworth, the Ninth Circuit h e ld that "in the First Amendment context, where a legislative body has enacted a permitting scheme for expressive conduct but has reserved some

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No. 09-50692 i s vulnerable to challenge on grounds of unbridled discretion." Id. at 1042. Since the defendant city had not pointed to any "provision of the Ordinance, or t o any implementing regulation, that guide[d] the City Council's decision w h e t h e r to fund or waive fees and charges," the court struck down the ordinance. Id. at 1043. T h e plaintiffs argue that, as in Long Beach, San Antonio's City Council r e t a in s discretion to waive traffic control fees for particular events, u n c o n s t r a in e d by any guidelines. The 2008 ordinance does not explicitly grant a u t h o r it y to the City Council to waive fees for any events beyond the three listed in section 19-636(d). Nevertheless, the plaintiffs argue that the City Council retain s power under the procession ordinance to waive fees for additional groups. There are several indications in the record that the City Council does retain such a u t h o r ity . First, as noted above, when the Council passed the present ordinance, it did so with the understanding that its preexisting fee waivers for Fiesta San A n t o n io and the Cesar Chavez Parade would continue under the new o r d in a n c e .2 4 Thus, San Antonio's present procession ordinance does not limit fee w a iv e r s to events expressly listed in the ordinance. Second, during the

p r e lim in a r y injunction hearings in this case, counsel for San Antonio r e p r e s e n t e d to the district court that under the current procession ordinance, " t h e r e is nothing that would preclude [groups] from coming forward and seeking C o u n c il support and seeking an ordinance, if they have a specific event, and s e e k in g to see if they would garner" support for a fee waiver from the Council. W e believe that the fee waivers condemned by the Ninth Circuit in Long B e a c h are distinguishable from those under consideration on this facial

As already noted, before enacting the present ordinance, the Council reviewed a presentation that explained that "[o]ther ordinances already provide that the city will cover the costs associated with . . . Fiesta Parades and related events [and the] Cesar Chavez March."

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No. 09-50692 c h a lle n g e . In Long Beach, although the Ninth Circuit held that city councils m a y not exercise unguided discretion in making specific permit decisions, the c o u r t also noted that city councils may still exercise "the general discretion . . . t o enact (or not enact) laws." Id. at 1042. In our view, the waivers under c o n s id e r a t io n in this case more closely resemble an exercise of the City Council's le g is la t iv e authority than a specific licensing decision. San Antonio grants p r o s p e c t i v e , reoccurring fee exemptions for annual events, and the 2008 o r d in a n c e reserves no explicit authority for the City Council to waive fees on an a p p lic a t io n -b y -a p p lic a t io n basis. In contrast, in Long Beach, the challenged o r d in a n c e specifically reserved waiver power for the city council, allowing event o r g a n iz e r s to write to the council, requesting one-time waivers for particular e v e n t s . Id. at 1017-18, 1042. Thus, in this case, San Antonio's City Council has n o t retained a role for itself in the permit application process;2 5 it has instead p r o s p e c t iv e ly exempted certain annual events from paying fees under its permit sch em e. Although the City Council may in the future consider creating

a d d it io n a l reoccurring exemptions for other events, this would be a permissible e x e r c is e of the Council's legislative authority, as long as the Council does not e x e m p t so many events to create concerns about viewpoint discrimination, as d is c u s s e d above. However, if the City Council in the future begins waiving fees fo r procession organizers on an ad hoc, application-by-application basis under t h e 2008 ordinance,2 6 we can assess this in an as-applied challenge.2 7

The City Council does retain authority to hear appeals from denials of permits by the SAPD. See Ch. 19, art. XVII, § 19-635. However, these appeals do not concern any refusals by the SAPD to waive fees, as the procession ordinance does not grant the SAPD authority to waive fees. As previously noted, it appears that under the 1988 ordinance, Council members sometimes intervened with the SAPD to obtain fee waivers for particular events. For the 2007 and 2008 versions of the current ordinance, we have no evidence of similar practices. During the brief period when the SAPD assessed fees after the repeal of the 1988 ordinance, no fee waivers were granted, other than for the Martin Luther King March. Then, from February
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No. 09-50692 B. T h e plaintiffs also contend that the 2008 ordinance and Procedure 214 do n o t sufficiently cabin the discretion of the SAPD in assessing traffic control and c le a n u p fees. The Supreme Court has held that "`a law subjecting the exercise o f First Amendment freedoms to the prior restraint of a license' must contain `n a r r o w , objective, and definite standards to guide . . . licensing authority.'" Forsyth County, 505 U.S. at 131 (quoting Shuttlesworth, 395 U.S. at 150-51). In o u r view, the standards guiding the SAPD are constitutional, as they do not g r a n t arbitrary power to assess fees, but rather provide the police with limited d is c r e t io n to allocate necessary traffic control and cleanup resources. B e fo r e proceeding with our analysis, we review the standards by which the S A P D calculates fees for procession organizers. As explained above, the 2008 o r d in a n c e establishes that "[e]ach permit holder is responsible for" the cost of " [c ]le a n in g up the procession route" and providing "traffic control personnel" and " t r a ffic control devices for the procession route." Ch. 19, art. XVII, § 19-636(b). In determining "the number of peace officers and traffic control devices r e a s o n a b ly necessary to control traffic in the area of the requested procession," id . § 19-636(c), the procession ordinance directs the SAPD to consider: (1 ) The route and the identification of roadways that cross through o r feed into the street of the proposed route;

2008 until March 2009, San Antonio was under an injunction that interfered with its ability to assess fees on procession organizers. The plaintiffs might object that we are requiring them to wait for the City Council to employ its discretion to waive fees in an impermissible manner. It is true that "[f]acial attacks on the discretion granted a decisionmaker are not dependent on the facts surrounding any particular permit decision." Forsyth County, 505 U.S. at 133 n.10. As such, when an ordinance clearly grants unguided discretion to an actor, a plaintiff can attack that ordinance without pointing to any particular impermissible exercises of discretion, as it is "the pervasive threat inherent in [discretion's] very existence that constitutes the danger to freedom of discussion." City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 770 (1988). However, San Antonio cannot be sued simply because its City Council retains unconstrained legislative discretion. Such discretion is the very nature of legislative authority.
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Case: 09-50692

Document: 00511227761

Page: 28

Date Filed: 09/08/2010

No. 09-50692 (2 ) The number of anticipated participants and vehicles in the event; (3) Identification of other roadways, or public transportation and e m e r g e n c y vehicle routes that may be affected by the event; (4) Length of the r