The Nationalist Movement appealed against the City of York regarding the constitutionality of section 741.03 of the City’s Codified Ordinances, which mandates that individuals seeking to use public land for gatherings exceeding twenty-five people must obtain a permit, pay application fees, and adhere to specific conditions. The District Court found two provisions of the Ordinance unconstitutional, a decision unchallenged by the City, but upheld the remainder and granted summary judgment in favor of the City.
Key aspects of section 741.03 include:
- Prohibition against public assemblies on public land without a permit (741.03(c)(1)(A)).
- Application process requiring a written application and an application fee of $50 for residents and $100 for non-residents (741.03(d)).
- Applicants must agree to cover costs associated with policing and cleanup, indemnify the City against liabilities, and pay a user fee (741.03(d)(6) and 741.03(d)(8)).
- Fees may be waived if the activity is protected by the First Amendment and the costs would be prohibitively burdensome (741.03(f)(3)).
- Applications are processed in the order received, with established grounds for denial and procedures for appeal (741.03(e)(1) and 741.03(f)).
On June 14, 2002, The Nationalist Movement applied to hold events on January 20, 2003, expressing objections to the fees as a First Amendment violation but did not claim financial inability to pay or seek a fee waiver.
The City rejected The Nationalist Movement's application as incomplete, leading to correspondence between the parties. After the final denial, The Nationalist Movement sought a waiver and subsequently filed action in District Court on October 25, 2002. The City moved to dismiss, while The Nationalist Movement requested a temporary restraining order and both preliminary and permanent injunctions. The parties reached an agreement permitting The Nationalist Movement to hold its event on January 20, 2003, with only a nominal fee, without a permit. The City argued the ordinance did not apply due to the event's size, and the event proceeded without issues.
The Nationalist Movement filed applications for events in 2004 and 2005, which were held in abeyance pending this case's resolution. On May 5, 2003, the City moved to dismiss based on the settlement agreement, which was denied. Both parties later filed for summary judgment. On March 24, 2006, the District Court found that requirements for a security deposit and insurance certificate before issuing a permit violated the First Amendment, as they allowed the City to impose higher fees based on the content of speech. The Court upheld other provisions as constitutional and denied The Nationalist Movement’s as-applied challenge and equal protection arguments. The request for attorneys’ fees was stayed pending appeal.
The appeal falls under 28 U.S.C. 1291, and the court exercised plenary review of the summary judgment. A key issue was whether The Nationalist Movement could bring a facial challenge to the Ordinance. Despite the 2003 event proceeding, the Supreme Court permits facial challenges to statutes that could chill First Amendment speech, as seen in City of Lakewood v. Plain Dealer Publishing Co. The Court determined that the Ordinance indeed chills speech based on content, granting standing for the facial challenge. The constitutionality of the Ordinance was examined under the precedent set in Forsyth County v. Nationalist Movement, which ruled that permit and fee requirements for public speaking in traditional forums constitute a prior restraint on speech, subject to strict scrutiny. The Court found that the ordinance’s variable fee structure was unconstitutional, violating First Amendment protections.
No standards were established for setting the application fee, leading to concerns of arbitrary discretion by the administrator, which the First Amendment prohibits due to the potential for political misuse. Although the fee was partially content-based, the Court did not declare all application or permit fees unconstitutional, referencing Cox v. New Hampshire, which affirmed that fees can be constitutionally charged to cover administrative costs and maintain public order. Here, the application fee is set at $50 for residents and $100 for non-residents, applied uniformly without discretionary adjustments, deemed nominal, and not content-based, which aligns with First Amendment protections as per Forsyth County. The City recognized that the waiver provision applies to the application fee, ensuring it does not unconstitutionally burden those unable to pay.
The Nationalist Movement's challenge to the fee differential under the Equal Protection Clause was rejected by the District Court, which found that the lower fee for residents served a legitimate governmental interest in promoting local events. The Supreme Court has previously upheld similar residency distinctions under a rational basis test, which applies here as no fundamental rights are implicated. The City intends to amend the Ordinance for clarity regarding the waiver provision. Additionally, applicants are required to sign an agreement to cover all costs related to policing and cleanup, including reimbursing the City for these expenses. However, the reimbursement requirement was deemed unconstitutional, as the District Court's ruling was incorrect; while a permit scheme can ensure financial accountability for damages, it must not impose unreasonable burdens on applicants.
A large parade, such as a circus, can incur higher fees than a small parade due to greater government expenses. However, fees cannot be based on the content of the speech. In Forsyth County, the Supreme Court deemed a permit fee unconstitutional when it partially aimed to cover police protection costs, as this involved estimating public reaction to the speech, which is inherently content-based. Consequently, events with unpopular views could face higher costs, which the Court ruled unjustifiable. Additionally, the District Court found that security deposits and insurance requirements imposed by a city were unconstitutional because they were based on the perceived reputation and unpopularity of a group's message, discouraging unpopular speech in public forums. Although charging for policing might seem content-neutral, the Court in Forsyth County clarified that such fees are content-related since they require assessing the speech's nature and potential public response. The reimbursement provision, which requires speakers to pay for actual costs incurred by the City after an event, was also found unconstitutional as it similarly allows for charges tied to content-based considerations, including costs linked to managing public reactions and counter-demonstrators.
The proposed speech's content and public reaction must be evaluated before imposing fees related to speech events. Charging for expenses post-event could undermine established rulings, such as Forsyth County, which protect against content-based fees influenced by public reaction. Previous cases, including Terminiello v. Chicago and Schneider v. State, affirm that speech should not be hindered by the anticipated responses of others. The reimbursement provision is deemed more problematic than prior requirements like security deposits because it leaves applicants uncertain about their potential liabilities, which could inhibit speech, especially on controversial topics. The City should amend the waiver provision to align with its interpretation, as the hold-harmless clause, while narrow, does not violate the First Amendment. However, requiring payment of an indeterminate fee based on others' reactions constitutes an unconstitutional chilling effect on speech. The reimbursement provision is susceptible to misuse, granting the City excessive discretion to penalize speakers based on their message content. This potential for abuse further discourages constitutionally protected speech. Consequently, the court will affirm in part and reverse in part the District Court's order, remanding for further proceedings, while affirming the District Court's rulings on remaining arguments presented by The Nationalist Movement, which were found to lack merit.
