Forsyth County v. Nationalist Movement

PETITIONER: Forsyth County
RESPONDENT: Nationalist Movement
LOCATION: Forsyth County Board of Commissioners

DOCKET NO.: 91-538
DECIDED BY: Rehnquist Court (1991-1993)
LOWER COURT: United States Court of Appeals for the Eleventh Circuit

CITATION: 505 US 123 (1992)
ARGUED: Mar 31, 1992
DECIDED: Jun 19, 1992

ADVOCATES:
Richard Barrett - on behalf of the Respondent
Robert S. Stubbs, III - on behalf of the Petitioner

Facts of the case

The Board of Commissioners for Forsyth County enacted an ordinance that permitted the county administrator to charge a fee of not more than $1,000 per day for a permit to hold a parade, assembly, or demonstration on public property in the county. The law allowed the administrator to adjust the fee to correspond with the estimated cost of maintaining public order during the activity. In January 1989, The Nationalist Movement (Movement) applied for a permit to hold a rally on the courthouse steps in Cumming, Georgia, to protest the federal holiday honoring Martin Luther King, Jr. The county charged $100 for the permit, but that amount that did not include a calculation for expected law enforcement expenses during the rally. The Movement did not pay the fee and did not hold the rally; instead the Movement sued the county in federal district court and challenged its authority to interfere with the Movement’s free speech and assembly rights. The district court found that the county administrator did not unconstitutionally apply the ordinance to the Movement’s permit application because the fee was based solely on content-neutral criteria such as the costs of processing the application. The U.S. Court of Appeals for the Eleventh Circuit reversed and held that the permit fee of up to $1,000 a day exceeded the constitutional requirement that governments charge only a nominal fee for using public forums.

Question

Does an ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order violate the free speech guarantees under the First and Fourteenth Amendments?

Media for Forsyth County v. Nationalist Movement

Audio Transcription for Oral Argument - March 31, 1992 in Forsyth County v. Nationalist Movement

Audio Transcription for Opinion Announcement - June 19, 1992 in Forsyth County v. Nationalist Movement

William H. Rehnquist:

The opinion of the court in No. 91-538, Forsyth County, Georgia versus the Nationalist Movement will be announced by Justice Blackmun.

Harry A. Blackmun:

This case comes to us from the Court of Appeals for the Eleventh Circuit.

The petitioner, as the Chief Justice has indicated, is a Georgia County.

It has an ordinance that requires permits for public demonstrations and declares that the cost of protecting participants exceeds the normal cost of law enforcement and therefore, every permit applicant is required to pay a fee up to $1,000.

It empowers the county administrator to adjust the amount of that fee.

The respondent, Nationalist Movement, proposed to demonstrate an opposition to the federal holiday to Martin Luther King, Jr. but the County attempted to impose its fee.

The respondent filed suit claiming that the ordinance violated the free speech guarantees of the First and Fourteenth Amendments.

The District Court denied relief but the Court of Appeals reversed.

It held that an ordinance which charges more than a nominal fee for using a public forum for a public issue speech is facially unconstitutional.

In an opinion filed with the Clerk today, we affirm that judgment and hold that the ordinance is facially invalid.

Government may impose a permit requirement if it does not delegate overly broad licensing discretion to an official and if it is not based on the content of the message.

Here, the decision how much to charge or whether to charge at all is left to the discretion of the administrator who is not required to rely on objective standards.

The ordinance, we feel, is content-based and neither the $1,000 cap nor some lower nominal cap could save the ordinance.

The Chief Justice has filed a dissenting opinion and is joined therein by Justice White, Justice Scalia, and Justice Thomas.