Thomas, Caren C. v. City of Chicago

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 98-3836, 98-3912 & 99-1429
Robert MacDonald, Caren C. Thomas
and Windy City Hemp Development Board,
Plaintiffs-Appellees,
Cross-Appellants,
v.
City of Chicago,
Defendant-Appellant,
Cross-Appellee.
Appeals from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 97 C 5266--David H. Coar, Judge.
Argued January 20, 2000--Decided March 12, 2001
Before Coffey, Manion, and Rovner, Circuit Judges.
Manion, Circuit Judge. Robert MacDonald sued the
City of Chicago seeking a declaration that the
city’s ordinance permitting parades violates the
First Amendment, and a permanent injunction
barring its enforcement. The district court
concluded that although the ordinance did not
provide the City with unlawful discretion to deny
permits, it was unconstitutional because it
lacked the procedural safeguards set forth in
Freedman v. Maryland, 380 U.S. 51 (1965).
Accordingly, the district court enjoined
enforcement of the ordinance. The City of Chicago
appealed. MacDonald filed a cross-appeal,
challenging the district court’s conclusion that
the ordinance did not grant the City
unconstitutional discretion.
While the appeal was pending, the City of
Chicago amended the ordinance, and then it filed
a Rule 60(b)(5) motion in the district court
asking the court to vacate its injunction. The
district court denied the motion to vacate,
concluding that the amendments to the ordinance
did not cure the constitutional defects. The City
of Chicago appealed from that decision, and we
consolidated both appeals. We also granted Caren
Cronk Thomas and the Windy City Hemp Development
Board leave to substitute as plaintiff-
appellees/cross-appellants in the place of Robert
MacDonald, who had since died./1 We now conclude
that the ordinance does not provide the City with
unconstitutional discretion to review parade-
permit applications. We further conclude that the
ordinance is a valid time, place, and manner
restriction, and that the ordinance’s challenged
procedural safeguards are constitutional.
Therefore, we REVERSE the district court’s
declaration that the ordinance is an
unconstitutional prior restraint of speech.
I. Background
Robert MacDonald was a vocal advocate for the
legalization of marijuana. In order to spread his
message, MacDonald organized various events,
including marches and political rallies. In June
1997, MacDonald applied for a parade permit
pursuant to Chicago Ordinance 10-8-330(b), which
requires anyone who plans to conduct a parade on
any public street or sidewalk to obtain a permit
from the Commissioner of the Chicago Department
of Transportation ("Commissioner"). In his
application, MacDonald requested a permit to hold
a march on August 23, 1997 in downtown Chicago,
marching through the "Loop,/2" up Michigan
Avenue to Chicago Avenue, returning south along
Michigan Avenue to the Loop. The parade was to be
held in conjunction with a political rally in
Grant Park, which was the subject of another
lawsuit. MacDonald v. Chicago Park Dist., 132
F.3d 355 (7th Cir. 1997) (denying MacDonald’s
request for a preliminary injunction preventing
the park district from denying requests for park
permits).
The Commissioner denied MacDonald’s application
for a parade permit, concluding that:
The proposed activity will substantially and
unnecessarily interfere with traffic; there are
not available a sufficient number of peace
officers to police and protect participants; and
the concentration of things at the assembly and
along the route will prevent proper fire and
police protection and ambulance service.
The Commissioner’s cited justifications derive
from other portions of Chicago’s ordinance,
particularly subsection (h), which requires the
Commissioner to issue a parade permit when he
finds that:
The proposed activity will not substantially or
unnecessarily interfere with traffic in the area
contiguous to the route;
There are available at the time of the parade,
public assembly or athletic event a sufficient
number of peace officers to police and protect
lawful participants in the activity;
The concentration of persons, animals, vehicles,
or things at the assembly and disbanding areas
and along the parade or athletic event route will
not prevent proper fire and police protection or
ambulance service;
Chicago Ordinance, sec. 10-8-330(h).
After the Commissioner denied MacDonald’s
parade-permit application, MacDonald filed a
verified complaint seeking declaratory and
injunctive relief against the City of Chicago;
his complaint, brought pursuant to 28 U.S.C. sec.
1983, alleged a facial challenge to portions of
the City’s parade permitting ordinance, claiming
violations of the First Amendment. After full
briefing on MacDonald’s motion for a preliminary
injunction, the parties reached an agreement
allowing MacDonald to conduct a more limited
parade than the one he originally sought. The
district court then denied the motion for a
preliminary injunction as moot.
But the dispute did not end there. On January 8,
1998, MacDonald applied for a parade permit to
conduct a parade on May 9, 1998 at 11:00 a.m.
following a route virtually identical to the one
he had applied for in August 1997. The
Commissioner denied this application for the same
reasons he denied MacDonald’s first application,
but the Commissioner also suggested an
alternative parade route. MacDonald apparently
was not satisfied with the proposed alternate
route, and he again requested a preliminary
injunction. The parties, however, once more
settled their differences, and MacDonald withdrew
his request for preliminary relief.
The district court then considered the parties’
cross-motions for summary judgment on the merits
of MacDonald’s First Amendment claim for
declaratory and permanent injunctive relief. The
district court concluded that Chicago Ordinance
10-8-330 violated the First Amendment because,
even though it did not confer upon the
Commissioner unfettered discretion, it required
the Commissioner to consider whether a sufficient
number of police officers would be available to
protect the participants, and this, the court
believed, required the Commissioner to consider
the content of the marchers’ speech. Accordingly,
the district court concluded that the ordinance
was an unconstitutional content-based regulation
of speech. The district court further held that
the ordinance constituted a prior restraint, and
as such must include the three constitutional
safeguards set forth by the Supreme Court in
Freedman v. Maryland, 380 U.S. 51 (1965), the
third of which required the censor to bear the
burden of going to court to suppress the speech
and to bear the burden of proof once in court.
The district court concluded that because the
Commissioner did not bear those burdens, Chicago
Ordinance 10-8-330 constituted an
unconstitutional prior restraint. The district
court then permanently enjoined enforcement of
Section 10-8-330.
The City of Chicago appealed from the district
court’s decision, and MacDonald cross-appealed
from the district court’s conclusion that Section
10-8-330 did not provide the City of Chicago with
unconstitutional discretion. After filing its
notice of appeal, the City of Chicago also
amended its ordinance, and then requested the
district court to vacate its injunction pursuant
to Rule 60(b)(5). The district court concluded
that the amendments to the ordinance did not
alter the result. The City of Chicago appealed
from that decision, and we consolidated both
appeals. We also granted Caren Cronk Thomas and
the Windy City Hemp Development Board leave to
substitute as plaintiff-appellees/cross-
appellants because MacDonald had since died. See
supra at 2.
II. Analysis
We review de novo decisions on summary judgment
as we do questions of constitutional law. Stokes
v. City of Madison, 930 F.2d 1163, 1168 (7th Cir.
1991) ("All First Amendment issues, save the
district court’s acceptance of stipulated facts,
we review de novo."). However, before considering
the constitutionality of Chicago Ordinance 10-8-
330, we must initially consider which version of
the ordinance is properly before us: MacDonald
argues that we should consider the
constitutionality of both the ordinance in effect
at the time he filed suit and the current
version; whereas the City contends that any
dispute over the original ordinance has been
mooted by its subsequent modifications, and thus
we should consider only the constitutionality of
the modified ordinance./3
We agree with the City that the new ordinance is
the only one before us on review. Any dispute
over the 1997 version of the ordinance was mooted
by the enactment of the new ordinance. Kremens v.
Bartley, 431 U.S. 119, 129 (1977) ("[T]he
enactment of the new statute clearly moots the
claims of the named appellees."). But even as
revised, the ordinance as interpreted by the
district court continues to impact the
plaintiffs. Thus, since a case or controversy
remains, we will consider the constitutionality
of Chicago’s parade permitting ordinance as it
now stands. Fusari v. Steinberg, 419 U.S. 379,
387 (1975) (holding that in considering the
constitutionality of the challenged law, "[t]his
Court must review the District Court’s judgment
in light of presently existing Connecticut law,
not the law in effect at the time that judgment
was rendered."). See, e.g., 11126 Baltimore
Blvd., Inc. v. Prince George’s County, Md., 58
F.3d 988, 991-92 (4th Cir. 1995) (reviewing only
the constitutionality of the current version of
the zoning ordinance, notwithstanding County’s
assertion that it intended to return to its prior
ordinance if the court upheld the
constitutionality of the previous version).
According to MacDonald, as it now stands,
Chicago’s parade permitting ordinance still
violates his First Amendment rights. Without
question, MacDonald’s parade and rally in support
of the use and legalization of marijuana is
speech protected by the First Amendment of the
United States Constitution. Although he has the
right to demonstrate and speak freely on this
issue, that right does not allow him and other
participants to create chaos by disrupting
traffic, impeding pedestrians, endangering
themselves or other people, and otherwise causing
gridlock on the busy streets and sidewalks of the
city of Chicago. At the same time, the City has
an obligation not only to permit MacDonald and
other participants to engage in the parade and
rally, but it is also obliged to protect the
participants, to ensure their safety and that of
others in the area, to maintain an orderly flow
of traffic, and to prevent disruptive or even
violent confrontations. To meet this obligation,
the City must have sufficient police officers
available to see to it that the parade proceeds
in an orderly fashion along a pre-designated
route in order to allow the demonstrators to
exercise their speech rights while the City
continues to function and non-participants go
about their normal business.
But balancing these rights and obligations is no
simple task. The courts have been embroiled in
First Amendment challenges for decades. The
resulting case law is complicated to say the
least. The Supreme Court has issued a number of
split decisions and various circuits have taken
divergent paths in resolving the conflicts
between the free speech rights of individuals and
the obligation of government officials to
maintain order and even-handed protection among
its citizens. In the continuing examination, we
are now faced with yet another challenge in which
we must apply the present facts to the
constitutional law as it now stands. To do so, we
must consider the specific constitutional
challenges presented by MacDonald, and the City’s
response.
MacDonald first argues that Section 10-8-330
unconstitutionally vests the Commissioner with
unfettered discretion to grant or deny a parade
permit. Second, MacDonald asserts that the
ordinance is a prior restraint on speech and
therefore must guarantee prompt judicial review,
which it does not. Finally, MacDonald argues that
as a prior restraint, the ordinance must also
place the burden to seek judicial review of any
permit denial on the City, but it does not.
Conversely, the City of Chicago argues that its
parade-permitting ordinance does not confer on
the Commissioner unlimited discretion, and that
it is not a prior restraint of speech, but rather
a valid time, place, and manner restriction.
A. Unfettered Discretion?
It is well established that where a statute or
ordinance vests the government with virtually
unlimited authority to grant or deny a permit,
that law violates the First Amendment’s guarantee
of free speech. See Saia v. People of State of
New York, 334 U.S. 558, 559-60 (1948) (city
ordinance prohibiting use of sound amplification
devices, except with permission obtained from
chief of police, is invalid as infringing right
of free speech, in absence of any standards
prescribed for exercise by chief of police of his
discretion); City of Lakewood v. Plain Dealer
Pub. Co., 486 U.S. 750 (1988) (licensing scheme
which gives the government unlimited discretion
is facially unconstitutional). As we have
reiterated, where virtually unlimited discretion
exists, "the possibility is too great that it
will be exercised in order to suppress disfavored
speech." MacDonald v. Chicago Park Dist., 132
F.3d 355, 361 n.6 (7th Cir. 1997) (citing
Lakewood, 486 U.S. at 757-58).
MacDonald argues that Chicago Ordinance 10-8-
330(h) confers on the Commissioner unfettered
discretion to approve or deny parade-permit
applications, and thus it violates the First
Amendment. For instance, MacDonald points to the
ordinance’s requirements that the Commissioner
consider whether the proposed parade will
"substantially or unnecessarily interfere with
traffic in the area contiguous to the route,"
whether there are available "sufficient city
resources to mitigate the disruption," whether
there are available "a sufficient number of peace
officers to police and protect lawful
participants and non-participants from traffic
related hazards in light of the other demands for
police protection," and whether the concentration
of persons will "prevent proper fire and police
protection or ambulance service." He then queries
the court, "What are ’substantially,’
’unnecessarily’ and ’sufficient’?" He argues that
this loose language leaves the Commissioner with
complete discretionary authority to grant or deny
a parade permit, and therefore the ordinance is
unconstitutional.
In support of his position, MacDonald cites
several Supreme Court cases, such as
Shuttlesworth v. City of Birmingham, Ala., 394
U.S. 147 (1969). In Shuttlesworth the Court
considered the constitutionality of a Birmingham
ordinance that required the city commission to
issue a parade permit unless in "its judgment the
public welfare, peace, safety, health, decency,
good order, morals or convenience required that
it be refused." Id. at 149-50. The Court struck
the ordinance because it unconstitutionally
conferred the government with unbridled
discretion. Similarly in Schneider v. State of
New Jersey, Town of Irvington, 308 U.S. 147(1939), the Court struck down a municipal
ordinance which allowed the Chief of Police to
deny a permit to door-to-door solicitors if he
determined the speaker was "not of good
character." In Staub v. City of Baxley, 355 U.S.
313 (1958), the Court likewise invalidated a city
ordinance because of the unfettered discretion
granted the decisionmaker. Id. at 321. In that
case the mayor could deny permits to applicants
requesting permission to solicit others to join
their organization based on the "character of the
applicant, the nature of the business of the
organization for which members are desired to be
solicited, and its effects upon the general
welfare of citizens of the City of Baxley." Id.But as the district court correctly noted, "[i]n
contrast to the obscure standards in the cases
cited above, the provisions of sec. 10-8-
330(h)(1)-(4) specify legitimate safety concerns
in as precise a manner as such concerns can
reasonably be articulated." D.Ct. Opn. at 13.
Moreover, as the district court further reasoned,
in terms of the type of "discretion" that it
confers, sec. 10-8-330 is more analogous to other
ordinances that have been upheld in this circuit.
Specifically, in Graff v. City of Chicago, 9 F.3d
1309 (7th Cir. 1993), this court considered en
banc whether a Chicago ordinance which contained
six criteria for determining whether to grant a
license application for a newsstand
unconstitutionally conferred unlimited discretion
on the designated city officials. Among the six
criteria, city officials were required to
consider "[w]hether the design, materials and
color scheme of the newspaper stand comport with
and enhance the quality and character of the
streetscape, including nearby development and
existing land uses" and "the extent to which
services that would be offered by the newspaper
stand are already available in the area." Id. at
1317-18 (quoting Chicago Mun. Code sec. 1028-
160(a)). The ordinance further empowered city
officials to "remove a newsstand that ’endangers
public safety or property,’" that "interferes
with or impedes the flow of pedestrian or
vehicular traffic," or that is placed "in such a
manner as to impede or interfere with the
reasonable use of [a display window.]" Id. at
1319 (quoting Chicago Mun. Code sec.10-28158(a) &
(b)).
Notwithstanding the flexibility in the above
quoted criteria, a majority of the Graff court
concluded that the ordinance did not provide the
decisionmaker with such unfettered discretion
that it offended the First Amendment. Id. at
1317-18; id. at 1329 (Flaum, J., concurring)
(noting that while the enumerated factors allow
flexibility, they are "the kinds of legitimate
concerns one would expect a city to weigh when
deciding how to allocate limited public space in
a neutral way."); id. at 1335 (Ripple, J.,
concurring) ("In no way does the ordinance place
unfettered discretion in the hands of city
officials."). In fact, this court recently made
this same point in another case involving
MacDonald: "nine of twelve judges on the en banc
court [in Graff] concluded that [that] ordinance
was sufficiently objective and specific to limit
the decisionmaker’s discretion and thereby to
survive a facial First Amendment challenge."
MacDonald v. Chicago Park Dist., 132 F.3d 355,
361 (7th Cir. 1997) (citing Graff, 9 F.3d at
1318, 1329, 1335).
Section 10-8-330 more closely resembles the
ordinance at issue in Graff than those rejected
in Schnieder, Staub, and Shuttlesworth. Like the
Graff ordinance, Section 10-8-330 specifically
and narrowly identifies the reasonable and
necessary governmental concerns--traffic flows,
traffic hazards, and emergency transportation.
Moreover, to the extent that Section 10-8-330
provides flexibility for the Commissioner’s
evaluation of those concerns with the use of such
words as "substantially," "unnecessarily," and
"sufficient," this actually provides an
additional limitation on the government’s
discretion, as compared to that contained in the
ordinance in Graff; there, the ordinance allowed
City officials to remove a newsstand if it
"endangers public safety or property," or
"interferes with or impedes the flow of
pedestrian or vehicular traffic," but the
ordinance did not provide officials with any
threshold of harm. Yet, a majority of this court
found the ordinance in Graff sufficiently precise
so as to conclude that it did not provide the
City with unconstitutionally unfettered
discretion. Graff, 9 F.3d at 1317-18; id. at 1329(Flaum, J., concurring); id. at 1335 (Ripple, J.,
concurring). See also, Ward v. Rock Against
Racism, 491 U.S. 781, 794 (1989) ("While these
standards are undoubtedly flexible, and the
officials implementing them will exercise
considerable discretion, perfect clarity and
precise guidance have never been required even of
regulations that restrict expressive activity.");
United States v. Kistner, 68 F.3d 218, 221 (8th
Cir. 1995) (park permit regulation that required
consideration of "peace and tranquility," public
health and safety, and potential for damage to
park resources and facilities, did not
unconstitutionally vest government with unbridled
discretion).
Similarly, while Chicago’s ordinance provides
some flexibility, it limits the Commissioner’s
discretion by requiring the Commissioner to grant
a parade permit, unless specifically articulated
public-safety concerns exist. And the public-
safety concerns contained in the Ordinance
closely resemble the type of factors approved of
in Graff. For instance, in Graff city officials
had discretion to consider whether the newsstand
"interfere[d] with or impede[d] the flow of
pedestrian or vehicular traffic," while here the
Commissioner considers whether the parade
"unnecessarily interfere[s] with traffic in the
area contiguous to the route." While the other
factors set forth in Section 10-8-330 differ in
type from those approved of in Graff, they are of
the same nature, and similarly limit the
Commissioner’s discretion.
More recently, this court considered the
constitutionality of a closely analogous Chicago
ordinance--one covering park permits. In Thomas
v. Chicago Park Dist., 227 F.3d 921 (7th Cir.
2000), the same plaintiffs as involved in this
case presented a facial challenge to the City of
Chicago’s regulations which govern the use of
parks, and which require a permit for an
assembly, parade, demonstration, sporting event,
or other use of the park by a group of 50 or more
persons. Chi. Park Dist. Code ch. VII. In that
case, the plaintiffs claimed, among other things,
that the ordinance provided the City with
unconstitutional discretion. In support of their
position, the plaintiffs cited various sections
of the ordinance, including a provision allowing
the City to deny a permit if the applicant "has
on prior occasions made material
misrepresentations regarding the nature or scope
of any event or activity previously permitted."
The plaintiffs also pointed to a provision that
provided that "the park district ’may’ deny a
permit because of a misrepresentation, the
failure to tender the fee, having damaged
property of the park district on a previous
occasion, or other grounds listed in the
regulation, . . . ." Notwithstanding the
flexibility of words such as "material" and
"misrepresentations," and the discretion provided
the park district with the word "may," this court
rejected the plaintiffs’ contention that these
provisions unconstitutionally vested the City of
Chicago with too much discretion. In doing so,
this court noted that words such as "material"
actually restricted the limitation on the City’s
discretion. Thomas also observed the difficulty
in defining more specifically the factors to be
considered given the various competing interests
at play. Id. at 925 ("The plaintiffs complain
that this is vague, but do not indicate how it
could be made less vague yet encompass the myriad
activities that the First Amendment has been held
to protect.").
The ordinance at issue in this case closely
resembles the park-permit ordinance upheld in
Thomas. While both ordinances included language
providing city officials with flexibility in
assessing the proposed activity, the flexibility
is no more than is necessary so as to allow the
city officials to balance the competing interests
at issue. Therefore, based on Graff, and more
recently Thomas, we conclude that Section 10-8-
330 sufficiently articulates definitive standards
on which the Commissioner must base his decision
concerning a parade application to withstand
constitutional scrutiny.
B. Prior Restraint or Time, Place and
Manner Restriction?
MacDonald next argues that Section 10-8-330
constitutes a prior restraint on speech and thus
must provide certain procedural protections,
which according to MacDonald, it does not. On the
other hand, the City of Chicago argues that
Section 10-8-330 merely regulates the time, place
and manner of speech, and as such is not a prior
restraint on speech.
Both parties find support in Supreme Court
decisions. The City of Chicago cites Cox v. State
of New Hampshire, 312 U.S. 569 (1941), wherein
the Court considered the constitutionality of a
law requiring the issuance of a permit before
marchers could occupy public ways. As the City
correctly notes, the Court in Cox did not
characterize that law as a "prior restraint," but
rather upheld the law as a reasonable regulation
of the "time, place, and manner in relation to
the other proper uses of streets." Id. at 576.
See also Clark v. Community for Creative Non-
Violence, 468 U.S. 288 (1984). But MacDonald
counters with FW/PBS, Inc. v. City of Dallas, 493
U.S. 215 (1990), Forsyth County v. Nationalist
Movement, 505 U.S. 123 (1992), and City of
Lakewood v. Plain Dealer Publishing Co., 486 U.S.
750 (1988), wherein the Supreme Court analyzed
licensing and permit regulations as "prior
restraints," rather than as time, place and
manner regulations.
The lead opinion in Graff (an en banc case with
a five-judge plurality, with two concurrences
involving four judges, and a dissent involving
three judges) did not find it necessary to
reconcile these seemingly contradictory
precedents. Although the five-judge Graff
plurality concluded that the regulation of a
newsstand did not implicate the First Amendment,
in the alternative, it concluded that even if it
did, it was a constitutionally appropriate time,
place and manner restriction, and the procedural
safeguards provided were sufficient.
In his concurrence in Graff, which two other
judges joined, Judge Ripple aptly synthesized the
competing precedents. Accordingly, it is
appropriate to incorporate that thorough analysis
here in this case which indisputably implicates
the First Amendment. Compare, Graff, 9 F.3d at
1313 ("Graff has no First Amendment right to
build a structure on public property.").
As Judge Ripple explained:
For a very long time the Supreme Court has had to
deal with even-handed attempts to regulate the
exercise of expression in public forums. Parade
or demonstration permits are the usual context in
which these cases have arisen. The Court has
evaluated such attempts by governments to bring
order to the public forum under what is commonly
known as time, place, or manner analysis. See
Clark v. Community for Creative Non-Violence, 468
U.S. 288 (1984). . . . see also Cox v. New
Hampshire, 312 U.S. 569, 576 (1941).
Id. at 1334.
But, as Judge Ripple further explained, FW/PBS
and Lakewood
appl[ied] prior restraint analysis to fact
situations that are the functional equivalent of
those situations that the Court had analyzed
traditionally under the time, place, and manner
analysis. Specifically, in Lakewood, the Court
struck down as facially invalid an ordinance
requiring a license to place newspaper dispensing
machines on the city streets. Similarly, in
FW/PBS, the Court struck down parts of an
ordinance requiring the licensing of adult
businesses. In both cases, the Court
characterized the restriction imposed by the
ordinance as a prior restraint and determined
that its failure to comply with the stringent
mandate of Freedman v. Maryland, 380 U.S. 51(1965), rendered the ordinance unconstitutional.
Id.Why then did the Court not "follow its usual
approach of treating factual situations such as
these as susceptible to time, place, and manner
analysis and instead employ[ed] prior restraint
analysis"? Id. As reasoned in Judge Ripple’s
concurrence,
[w]hat distinguishes the Court’s treatment of
licensing schemes in these two sets of cases is
the presence of unfettered discretion. In both
Cox and Clark, the Court dealt with the
administration of an ordinance or regulation
which proscribed the activity of the licensing
authority. In fact, the Cox Court distinguished
those cases in which government officials were
unrestrained in their power to grant or deny
permits. 312 U.S. at 577. In both Lakewood and
FW/PBS, however, there was unfettered discretion
to grant or deny the license in Lakewood pursuant
to the very language of the ordinance and in
FW/PBS pursuant to the way the licensing official
could delay the licensing decision, presumably
indefinitely. This type of discretion, in the
Court’s eyes, "gives a government official or
agency substantial power to discriminate based on
the content or viewpoint of speech by suppressing
disfavored speech or disliked speakers."
Lakewood, 486 U.S. at 759. It also presents the
possibility of self-censorship. Id. Because of
these concerns, the Court in Lakewood struck down
the ordinance absent "neutral criteria to insure
that the licensing decision is not based on the
content," id. at 760, and, in FW/PBS, struck down
the ordinance absent the procedural guarantees of
Freedman, 493 U.S. at 228.
Id. at 1335.
Judge Ripple and the two judges joining his
concurrence found that the concerns the Court
voiced in both Lakewood and FW/PBS were not
present in Graff because the ordinance in no way
placed unfettered discretion in the hands of city
officials. They therefore concluded that the
ordinance should be analyzed according to the
time, place, and manner guidelines of Cox, Clark,
and City of Renton v. Playtime Theatres, Inc.,
475 U.S. 41 (1986)./4
The Supreme Court’s recent decision in Hill v.
Colorado, 120 S.Ct. 2480 (2000), has added to the
discussion of the distinction between prior
restraints and time, place and manner
restrictions, but it has not resolved the issue.
See Hill, 120 S.Ct. at 2491 (holding that
Colorado statutory provision making it unlawful
for any person to knowingly approach within 8
feet of another without that person’s consent, to
pass out information or engage in oral protest,
education, or counseling, was not a prior
restraint, but restricts the "place" of such
communication). Also adding to the uncertainty is
the fact that other circuits which have
considered the constitutionality of parade-permit
and licensing statutes following FW/PBS have
treated such regulations as prior restraints of
speech, subject to the procedural safeguards
required of prior restraints. MacDonald v. Safir,
206 F.3d 183, 194 (2d Cir. 2000) (New York’s
parade-permitting ordinance is a prior restraint
on speech because one must get a permit from the
Commissioner before staging a parade in New
York); Nightclubs, Inc. v. City of Paducah, 202
F.3d 884, 889, 891 n.6 (6th Cir. 2000) (city’s
licensing scheme of adult business is a prior
restraint of speech); Baby Tam & Co., Inc. v.
City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.
1998) ("Because [the Las Vegas ordinance]
requires all proposed [adult] bookstores to apply
for and obtain a license before engaging in
business, the City’s licensing scheme is properly
analyzed as a prior restraint."); American Target
Advertising, Inc. v. Giani, 199 F.3d 1241, 1250
(10th Cir. 2000); cf. Boss Capital, Inc. v. City
of Casselberry, 187 F.3d 1251, 1255 (11th Cir.
1999) (applying Freedman factors to licensing
ordinance, without classifying it as a prior
restraint). And some circuits have considered
permit and licensing ordinances as both time,
place and manner restrictions and as prior
restraints, applying both constitutional
standards to the challenged ordinance. See, e.g.,
11126 Baltimore Blvd., Inc., 58 F.3d at 995-96(noting that otherwise valid time, place and
manner regulation must be analyzed as prior
restraint if ordinance requires a license to open
adult bookstore); TK’s Video, Inc. v. Denton
County, Texas, 24 F.3d 705, 707 (5th Cir. 1994);
Beal v. Stern, 184 F.3d 117, 123-24 (2d Cir.
1999).
This court recently resolved this uncertainty in
Thomas. As noted above, Thomas considered the
constitutionality of Chicago’s park-permit
ordinance. While the plaintiffs in Thomas had
argued that the park-permit ordinance constituted
an unconstitutional prior restraint, this court
rejected a prior restraint formula stating:
We do not find this [prior restraint formula] a
helpful formula. The historical referent of
"prior restraints" is censorship, see 4 William
Blackstone, Commentaries on the Laws of England
151-53 (1769), which the administration of a park
system does not much resemble. The statement in
the plaintiffs’ brief that "denial of a permit to
hold a rally is the ultimate censorship" is
hollow rhetoric. It is a censor’s business to
make a judgment about the propriety of the
content or message of the proposed expressive
activity. Because he is in the business of
suppressing such activity (friends of free speech
are not drawn to a career in censorship), the
danger of abuse is very great, especially when
assessed in light of the dismal history of
censorship.
The regulation challenged here does not authorize
any judgment about the content of any speeches or
other expressive activity--their dangerousness,
offensiveness, immorality, and so forth. It is
not even clear that the regulation reduces the
amount of speech. A park is a limited space, and
to allow unregulated access to all comers could
easily reduce rather than enlarge the park’s
utility as a forum for speech. See Cox v. New
Hampshire, 312 U.S. 569, 574-76, 85 L. Ed. 1049,
61 S. Ct. 762 (1941); cf. Beal v. Stern, 184 F.3d
117, 128-29 (2d Cir. 1999). Just imagine two
rallies held at the same time in the same park
area using public-address systems that drowned
out each other’s speakers. Cf. Ward v. Rock
Against Racism, 491 U.S. 781, 105 L.Ed. 2d 661,
109 S. Ct. 2746 (1989). The heterogeneity of the
practices that the "prior restraints" formula
covers (with the present case compare Freedman v.
Maryland, 380 U.S. 51, 13 L. Ed. 2d 649, 85 S.
Ct. 734 (1965), involving a movie censorship
board) is reason to doubt that it can provide
much assistance to judges who have to decide a
novel case.
Thomas, 227 F.3d at 923-24. Because the park-
permit ordinance at issue in Thomas did not
concern itself with the content of the proposed
speech, this court treated the ordinance as a
time, place and manner licensing system. Id. at
926.
Thomas controls the case at hand, and we
accordingly conclude that the appropriate
approach is the time, place and manner analysis
set forth by the Supreme Court in Cox and Clark.
Here, as in Cox, Clark and Thomas, we have a
permit scheme which limits the discretion of the
government based on content-neutral criteria, and
therefore the threat of censorship characteristic
of a prior restraint is remote. Moreover, the
ordinance at issue here presents an even more
compelling case for a time, place and manner
analysis than that at issue in Graff because
Section 10-8-330 does not, in advance of the
planned parade or thereafter, prohibit anyone
from marching. Rather, the ordinance requires the
Commissioner to issue an alternative permit
whenever he denies the permit application as
requested, and the alternative permit must "to
the extent practicable authorize an event that
will have comparable public visibility and a
similar route, location and date to that of the
proposed event." Thus, the ordinance does not
restrict speech, but regulates the time, place
and manner of marches designed to present speech.
However, that does not end the question, because
not all time, place and manner restrictions pass
constitutional muster. Time, place and manner
restrictions "are constitutional, if they: (1)
are justified without reference to the content of
the regulated speech; (2) are narrowly tailored
to serve a significant government interest; and
(3) leave open ample alternative channels for
communication of the information." DiMa Corp. v.
Town of Hallie, 185 F.3d 823, 828 (7th Cir.
1999).
In this case, those aspects of Chicago’s parade
ordinance which MacDonald challenges are
justified without reference to the content of the
marchers’ speech. First, the ordinance requires
the Commissioner to determine whether the
proposed activity will interfere with traffic.
This determination does not depend on the content
of the march’s speech. Nor does the provision of
the ordinance requiring the Commissioner to
determine whether the concentration of parade
participants will prevent proper fire and police
protection consider the content of the speech.
These are safety considerations that are neutral
by any objective standard.
The final challenged aspect of the ordinance,
however, requires a closer examination. Under
subsection (h)(2) the Commissioner must determine
whether "[t]here are available . . . a sufficient
number of peace officers to police and protect
lawful participants in the activity and non-
participants from traffic related hazards in
light of the other demands for police protection
at the time of the proposed event or activity."
Relying on Forsyth County, Ga. v. Nationalist
Movement, 505 U.S. 123 (1992), the district court
concluded that subsection (h)(2) constitutes a
content-based regulation of speech because it
believed that the Commissioner would necessarily
consider the content of the marchers’ message in
order to assess policing needs. (He thought
sections (1) and (3) covered the safety issues,
so section (2) would be more concerned with
content.)
The district court’s reliance on Forsyth County
for this conclusion was misplaced. Unlike this
case, Forsyth involved an assessment of fees to
help cover the cost of police protection. There
the Supreme Court held that an ordinance which
required groups seeking demonstration permits to
pay for the estimated costs of police protection
for the demonstrators violated the First
Amendment because it required the county to first
examine the content of the demonstrators’ message
in order to "estimate the response of others to
that content, and to judge the number of police
necessary to meet that response." Id. at 134. In
contrast, subsection (h)(2) instructs the
Commissioner to consider only the availability of
police to protect participants from traffic
hazards. The content of the marchers’ speech
lacks any bearing in that assessment. In Forsyth
the county had to determine the cost of providing
police protection for the demonstrators based on
all dangers, but most significantly the potential
for a violent response to the speech. The fee
provision was "invalid because it
unconstitutionally tie[d] the amount of the fee
to the content of the speech . . . ." But cost is
not the concern here. Moreover, in most
situations the Commissioner does not even know
the content of the marchers’ speech as the permit
application does not request such information.
Rather, the question in section (2) is the
availability of sufficient police resources at a
particular time and place to protect marchers
from traffic hazards. Thus, the Chicago ordinance
is readily distinguishable from the ordinance in
Forsyth County, and in contrast to that ordinance
lacks any content-based consideration.
The dissent contends that this case is no
different than Forsyth County, arguing that the
City’s assessment of the number of officers
needed to protect participants and non-
participants from traffic hazards may depend on
the purpose (speech content) of the parade.
Dissent at 35-36. On the contrary, there are two
distinct differences from Forsyth County. First,
the plain language of Chicago’s ordinance makes
clear that the Commissioner should consider only
"traffic-related hazards." Second, the
Commissioner does not know the content of the
speech because the permit application does not
ask for any information about the purpose of the
parade or the motive of the participants. sec.
10-8-330(e). If the Commissioner or the police
impose rules or restrictions beyond those
specifically set forth in the ordinance, an as-
applied challenge may be in order. But in the
facial challenge before this court there is no
evidence that content has anything to do with the
Commissioner’s assessment of the permit
application.
The dissent also maintains that Chicago’s
ordinance is more restrictive than the one in
Forsyth County, because "there is no amount a
marcher can pay to be allowed to march if the
City decides the burdens are too great." Dissent
at 34. However, contrary to the dissent’s
concern, the Chicago ordinance bars no one from
marching; rather, if the City determines that
traffic hazards are too great and police
protection insufficient for that time and place,
then the City must "authorize the conduct of a
parade, public assembly or athletic event on a
date, at a time, at a location, or over a route
different than that named by the applicant. This
alternate permit shall to the extent practicable
authorize an event that will have comparable
public visibility and a similar route, location
and date to that of the proposed event."
Municipal Code of Chicago, Ill. sec. 10-8-330(l).
Because the City must authorize the parade or
other event, hecklers cannot veto unpopular
speech "by threatening to show up in large
numbers and create traffic hazards of their own."
Dissent at 36.
Thomas also supports the conclusion that Forsyth
County is distinguishable from the case at hand.
In Thomas, the plaintiffs had argued that the
park-permit ordinance’s requirement that
applicants obtain $1 million in liability
insurance created a heckler’s veto prohibited by
Forsyth. This court rejected that argument noting
that "the amount of insurance required is not
based on, or, so far as has been shown,
influenced by, the nature of the event, and
specifically by whether it involves controversial
expressive activity likely to incite violence by
onlookers or opponents." Thomas, 227 F.3d at 925.
Rather, the cost of the insurance considered
factors such as "the size of the event and the
nature of the facilities involved in it (a
bandstand, stage, tents, and so forth)." Id.Similarly, in this case, to determine whether "a
sufficient number of peace officers" are
available to protect participants and non-
participants "from traffic related hazards"
requires only a consideration of the size of the
parade and its nature, i.e., its route and time--
it does not inject content into the City’s
consideration of the permit application./5
A time, place and manner restriction must also
be narrowly tailored to serve a significant
government interest. Chicago Ordinance 10-8-330
promotes a significant government interest,
primarily the safety of citizens, and
specifically the organized, effective, and safe
flow of traffic, including emergency vehicles.
The regulation is also narrowly tailored to
promote these interests, first by requiring an
individualized assessment of the proposed march
vis-a-vis these concerns, and second by requiring
the City to tailor an alternative route which
does not interfere with safety, traffic and
emergency services. While this second rationale
also ensures ample alternative channels of
communication, see infra at 24, it assures that
the ordinance is narrowly tailored to the City’s
interests by requiring the next-best route be
offered to the applicant. Moreover, absent this
ordinance, the City could be in disarray, with
marchers interrupting the flow of workers and
sightseers, delivery trucks, buses, and emergency
vehicles, as well as other marchers deciding to
rally at the same place and on the same day. The
government’s interest in organizing these
potential disruptions would "clearly be achieved
less effectively absent the regulation." Ward v.
Rock Against Racism, 491 U.S. 781, 801-02 (1989).
Accordingly, we conclude that Section 10-8-330
satisfies the "narrowly tailored" prong.
Finally, to be constitutional, the time, place
and manner restrictions must ensure ample
alternative channels of communication in the
event that a permit is denied. The ordinance also
does this because, as just noted, if the
Commissioner denies a permit application, it must
"authorize a parade or other public assembly at a
time, location and over a route that is to the
extent practicable comparable in public
visibility and similar in location and date to
that requested." Thus, ample alternative channels
exist in the event the City denies the proposed
parade route.
In sum, because Section 10-8-330 is justified
without reference to the content of the regulated
speech; is narrowly tailored to serve a
significant government interest; and leaves open
ample alternative channels for communication of
the information, it constitutes a valid time,
place and manner regulation of speech.
C. Procedural Safeguards
MacDonald also argues that Chicago’s parade-
permit ordinance is unconstitutional because it
fails to provide the procedural safeguards set
forth in Freedman v. State of Maryland, 380 U.S.
51 (1965). In Freedman, the Supreme Court
considered the constitutionality of a Maryland
statute that required a motion picture exhibitor
to submit films, in advance of their exhibition,
to the Maryland State Board of Censors which
would approve and license the film if it "was
moral and proper" and would refuse a license if
the film was "obscene or tended to debase or
corrupt morals or incite to crime." Id. at 52
n.2. The Supreme Court struck the law as an
unconstitutional prior restraint, and in doing so
set forth three procedural safeguards designed to
obviate the dangers of censorship. Specifically,
the Freedman Court mandated that: (1) any prior
restraint . . . be imposed only for a brief
period of time, during which the status quo must
be maintained; (2) expeditious judicial review of
that decision must be available; and (3) the
censor must bear the burden of going to court to
suppress the speech, and must bear the burden of
proof once in court. Id. at 58-59. MacDonald
contends that Section 10-8-330 fails to provide
safeguards two and three, and that it is
therefore an unconstitutional prior restraint.
MacDonald first argues that the ordinance fails
to guarantee prompt judicial review. However,
contrary to MacDonald’s position, the Chicago
Ordinance allows for judicial review.
Specifically, Section 10-8-330 provides that the
Commissioner’s decision may be appealed to the
mayor and the mayor’s decision is then "subject
to judicial review in accordance with applicable
law." In Illinois, judicial review of a decision
to deny a permit application may be had in state
court by a writ of common law certiorari. This is
not good enough, according to MacDonald:
MacDonald argues that the Freedman "prompt
judicial review" safeguard requires more than a
possibility of judicial review--it requires the
guarantee of a prompt decision on the merits.
The circuits are split on this issue. The
Fourth, Sixth and Ninth Circuits have held that
prompt judicial review requires a prompt decision
on the merits. 11126 Baltimore Blvd., 58 F.3d at
1000-01 ("prompt judicial review" requires
"prompt judicial determination"); Nightclubs,
Inc. v. City of Paducah, 202 F.3d 884, 892 (6th
Cir. 2000) ("[T]his Circuit and a number of other
circuits have held that a licensing scheme must
reasonably ensure a prompt judicial
determination, and not mere access to judicial
review."); Baby Tam & Co., Inc., 154 F.3d at 1101("’prompt judicial review’ means the opportunity
for a prompt hearing and a prompt decision by a
judicial officer"). Conversely, the First, Fifth
and Eleventh Circuits have held that for permit
and licensing ordinances, prompt judicial review
only requires access to prompt judicial review.
Jews for Jesus, Inc. v. Massachusetts Bay Transp.
Auth., 984 F.2d 1319, 1327 (1st Cir. 1993)
("prompt judicial review" is provided where
applicant may appeal license denial in court);
TK’s Video, Inc., 24 F.3d at 709 (holding that
ordinance which gives an unsuccessful license
applicant 30 days to appeal to the district court
satisfies the "prompt judicial review
requirement"); Boss Capital, Inc., 187 F.3d at
1256 (for licensing ordinances, prompt judicial
review only means access to prompt judicial
review)./6
While the circuits are split on this issue, this
court has recently made clear in Thomas that in
this circuit a common law certiorari proceeding
"is good enough for a regulation of expressive
activity when the regulation is not a form of
censorship, that is, does not require or permit
the regulatory authority to evaluate the content
or message of the activity regulated." Thomas,
227 F.3d at 926 (citing fractured opinion in
Graff and "counting noses" to reach this
conclusion). Because this case--like Thomas--
involves a permit regulation that is not a form
of censorship and that does not evaluate the
content or the message of the activity, judicial
review through Illinois’ common law certiorari
proceedings satisfies constitutional scrutiny.
MacDonald also argues that the parade-permitting
ordinance fails to satisfy the third safeguard
established in Freedman, that being that the
government bears the burden of going to court if
it wants to deny the permit, and once in court,
it must bear the burden of proving that the
denial is constitutional. However, this third
Freedman safeguard was established in a case
addressing censorship. Following Freedman, the
Supreme Court considered the need for this
safeguard in the context of a licensing statute.
FW/PBS, Inc. v. City of Dallas, 493 U.S. 215(1990). In FW/PBS, a plurality of the Court
concluded that the third safeguard was required
only in those situations in which "the censor
engaged in direct censorship of particular
expressive material." Id. at 229. Because the
censoring ordinance in FW/PBS did "not exercise
discretion by passing judgment on the content of
any protected speech," the Court’s plurality
concluded that "the First Amendment does not
require that the city bear the burden of going to
court to effect the denial of a license
application or that it bear the burden of proof
once in court." Id. at 230.
This court has likewise concluded, based on the
rationale of FW/PBS, that a content-neutral
licensing or permit statute need not include a
provision requiring the government to bear the
burden of going to court to deny a permit.
Thomas, 227 F.3d at 926-27. See also, Graff, 9
F.3d at 1324 n. 11; id. at 1330 (Flaum, J.
concurring) ("Further, after FW/PBS, it seems
likely that Freedman’s third requirement--that
the licensor bear all court-related burdens--does
not apply in this case."). Accord, Beal v. Stern,
184 F.3d 117, 128 (2d Cir. 1999) (because park
permit ordinance was content-neutral prior
restraint, it "need comply with only the first
two Freedman factors."). Therefore, based on
FW/PBS, Thomas and Graff, we conclude that
Chicago ordinance Section 10-8-330 need not
satisfy the third Freedman standard.
Before closing, we note that our conclusion that
the third Freedman factor does not apply to
Chicago’s parade-permit ordinance acknowledges
not only the legal distinction between censorship
and a content-neutral licensing scheme--it
recognizes the practical reality of the
situation. The third Freedman factor is
completely unworkable in the context of the
parade-permit process. Consider the typical
scenario in which an applicant requests a
specific parade route, date and time. But it is
rush hour, or another parade is scheduled, or the
day-to-day affairs of the city are too greatly
affected to allow the exact time and place of the
requested route, so the City seeks to accommodate
the speech by proposing an alternative route.
However, if the third Freedman factor applies,
any time the City failed to accede to the
marchers’ demands it would be forced to first go
to court to prove its case. Even as the City
proceeds in court, new permit applications come
in, requiring the Commissioner to consider the
public safety concerns set forth in the
Ordinance. But he can’t because his earlier
decisions are not yet final--they are tied up in
court. And if a court then mandates a certain
route or time which the Commissioner had
previously denied, that could impact several
other decisions (that were not contested) that
the Commissioner has made in the meantime about
locations and times, police availability, and
traffic flow. It is unclear how the Commissioner
could possibly function under such a court-
imposed structure. But because the Chicago
Ordinance is not a device of censorship, the
third Freedman factor does not apply, and the
City of Chicago will not be required to initiate
legal action before denying or altering an
application for a parade permit.
III. Conclusion
Chicago oversees parades and marches throughout
the city to ensure not only the safety of people
who regularly use these routes but also the
safety of participants and parade-goers alike,
and to allow for the prompt and efficient flow of
traffic and emergency vehicles. This is a
content-neutral time, place and manner
restriction, justified by its purpose--not its
content--and it is narrowly tailored to serve a
significant governmental interest, while leaving
open ample channels of communication. Section 10-
8-330 also does not unconstitutionally vest the
Commissioner with unfettered discretion.
Moreover, because Section 10-8-330 is not a form
of censorship, but a time, place and manner
restriction, Illinois’ common law certiorari
process is constitutionally adequate. For these
reasons, we REVERSE the district court’s decision
declaring the ordinance an unconstitutional prior
restraint.
FOOTNOTES
/1 For simplicity’s sake, we will continue to refer
to MacDonald and "his" arguments on appeal.
/2 The "Loop" is a portion of the central Chicago
business district, which gets its name from the
elevated trains that "loop" around it.
/3 A red-lined version of the entire ordinance,
showing the current amendments to the earlier
version, appears in Appendix A.
/4 In recognition of the continuing discussion and
debate in the courts and in the legal community
at large, Judge Ripple’s concurrence noted that
"there is a great need for clarification of
standards in this area, and I respectfully
suggest that this case is deserving of further
review in the Supreme Court of the United
States." Id. at 1335. Although the Court did not
review Graff, the Court’s decisions since then
have also not resolved the conflicting analyses.
/5 On appeal, notwithstanding the City’s extensive
analysis of this issue, MacDonald fails to
present a case justifying the district court’s
view that the ordinance is content-based, stating
merely in a footnote that the district court’s
conclusion was obviously correct.
/6 It is unclear exactly where the Second Circuit
stands. Compare Beal v. Stern, 184 F.3d 117, 129
(2d Cir. 1999) ("prompt access to judicial review
in state courts would satisfy Freedman")
(emphasis added), with MacDonald v. Safir, 206
F.3d 183 (2d Cir. 2000) (noting that Beal held
that "prompt access to judicial review in state
courts would satisfy Freedman," but concluding
that the record was insufficient to determine
whether available state court proceedings
satisfied that requirement).
Rovner, Circuit Judge, concurring in part,
dissenting in part. Our recent opinion in Thomas
v. Chicago Park District, 227 F.3d 921 (7th Cir.
2000) answered some but not all of the questions
raised in this appeal. That case involved
essentially the same parties we have here, the
Windy City Hemp Development Board and a sub-unit
of the City of Chicago, namely, the Chicago Park
District. In that case, Windy City Hemp
challenged a Park District regulation that
restricted the use of the City’s parks for
gatherings, including political rallies. The Park
District regulation required that a permit be
obtained for any assembly in a park by a group of
50 or more persons. The regulation spelled out
the criteria for the grant of a permit, the
procedures for obtaining it, and the process for
challenging the denial of a permit. We found that
the Park District regulation did not vest
unfettered discretion in the government official
charged with issuing permits, and that the
regulation was not impermissibly vague. We also
held that requiring applicants to obtain
liability insurance did not amount to a heckler’s
veto because the amount of insurance required was
based not on the content of the speech but rather
on the size of the event and the nature of the
facilities involved. We further found that the
regulation’s requirement for a 30- to 60-day lead
time for permit processing was reasonable in
light of the attendant administrative burden and
was not harmful to speech in light of exceptions
the City allowed for spontaneous rallies in
reaction to current events. Finally, we rejected
Windy City Hemp’s main objection, that the
regulation failed to adequately provide for
judicial review of permit denials. We found that
Illinois’ procedure for common law certiorari was
an adequate means of review, and that alternate
channels of review were available in federal
court. We therefore concluded that the Park
District regulation did not unconstitutionally
impinge on Windy City Hemp’s First Amendment
rights.
MacDonald now challenges the City’s requirement
that he obtain a permit in order to hold a parade
on the City’s streets. I agree with the majority
that the amended version of the ordinance is the
only one before us on review. The amended parade
ordinance is considerably more vague than the
Park District regulation. Rather than objective
criteria regarding the number of participants and
the nature of the facilities, the ordinance sets
forth a number of subjective factors that the
City may use to deny a permit to march on city
streets. The City may deny a permit if the
proposed activity will "substantially and
unnecessarily" interfere with traffic, if there
are insufficient numbers of police officers
available to protect participants and non-
participants from traffic-related hazards, and if
the concentration of persons or things on the
route will prevent proper fire and police
protection or ambulance service. Under this
scheme, it is not difficult to see how the City
might decide that a parade honoring the Chicago
Bulls that snarls traffic for miles does not
"substantially or unnecessarily" interfere with
traffic, but that MacDonald’s small band of
marijuana protesters will overwhelm City
resources and interfere with traffic to an
unacceptable level./1 Nonetheless, the ordinance
is not so subjective on its face that it allows
an exercise of "unfettered discretion,"
especially in light of the fact that judicial
review is readily available. I therefore concur
with the majority’s conclusion on that issue.
I part company with the majority, however, on
the issue of whether the ordinance impermissibly
allows a heckler’s veto. See Forsyth County,
Georgia v. Nationalist Movement, 505 U.S. 123(1992). The ordinance challenged in Forsyth
County provided that every parade permit
applicant "shall pay in advance for such permit,
for the use of the County, a sum not more than
$1,000.00 for each day such parade, procession,
or open air public meeting shall take place." 505
U.S. at 126. Moreover, the county administrator
was empowered to "adjust the amount to be paid in
order to meet the expense incident to the
administration of the Ordinance and to the
maintenance of public order in the matter
licensed." 505 U.S. at 127. A group of white
supremacists sought to march in opposition to the
federal holiday celebrating the birth of Martin
Luther King. The county set a fee of $100 for the
permit. Rather than pay the fee, the would-be
marchers sued the county. The Supreme Court noted
that sometimes the county included all of the
administrative and police expenses in the fee,
and sometimes included only a portion of those
costs in the fee. As construed by the county, the
Court noted, the ordinance often required that
the fee be based on the content of the speech.
505 U.S. at 133-34. The ordinance did not
explicitly state that fees were based on content,
of course. Rather, the ordinance allowed the
county administrator to assess a fee to cover the
cost of protecting persons participating in or
observing the parade. In order to assess
accurately the cost of security for parade
participants, the administrator necessarily
"examine[d] the content of the message that is
conveyed." 505 U.S. at 134 (quoting Arkansas
Writers’ Project, Inc. v. Ragland, 481 U.S. 221,
230 (1987)). The administrator would also have to
estimate the response of others to the content
and judge the number of police necessary to meet
that response. Thus, the "fee assessed will
depend on the administrator’s measure of the
amount of hostility likely to be created by the
speech based on its content." Forsyth County, 505
U.S. at 134.
The County argued that, although the cost of
policing relates to content, the ordinance itself
was content neutral because it was aimed at a
secondary effect, the cost of maintaining public
order. The Forsyth Court noted that,
nevertheless, "it cannot be said that the fee’s
justification ’ha[s] nothing to do with content.’"
505 U.S. at 134 (citing Ward v. Rock Against
Racism, 491 U.S. 781, 792 (1989). The Court
explained,
The costs to which petitioner refers are those
associated with the public’s reaction to the
speech. Listeners’ reaction to speech is not a
content-neutral basis for regulation. . . .
Speech cannot be financially burdened, any more
than it can be punished or banned, simply because
it might offend a hostile mob.
Forsyth County, 505 U.S. at 134-35 (citations
omitted). The Court concluded that regulations
which permit the government to discriminate on
the basis of the content of the message cannot be
tolerated under the First Amendment. The Court
also held that although raising revenue for
police services was undoubtedly an important
government goal, it did not justify a content-
based permit fee.
Acknowledging that Forsyth County is good law,
the majority seeks to distinguish it. Supra at
20-23. The majority notes that, unlike the
Chicago parade ordinance, the Forsyth County
ordinance involved an assessment of fees to help
cover the cost of police protection. The Chicago
ordinance directs the Commissioner to consider
the availability of police to protect
participants from traffic hazards only, and
according to the majority, the words "traffic
hazards" are determinative here--because the
Commissioner assesses the need for officers only
in terms of traffic hazards, the content of the
marchers’ speech purportedly is not implicated.
Supra at 21. In Forsyth County, by contrast, the
county commissioner calculated the cost of
providing police protection for demonstrators
based on all dangers but most significantly
considered the potential for violent response to
the speech. The fee was thus tied to the content
of the speech. The majority sees the Chicago
ordinance as different in three respects. First,
the Chicago ordinance does not involve fees at
all. Second, the only hazard the City must
consider in denying or granting a permit is
whether there are sufficient police officers
available to protect participants (and non-
participants) from traffic perils. Third, because
the Commissioner does not necessarily even know
the content of the speech when making that
determination, the ordinance lacks content-based
discrimination, according to the majority.
That Forsyth County involved a fee-based permit
is certainly not determinative. In fact, the
Chicago ordinance is more restrictive than
Forsyth County’s law in the sense that the ban on
speech is outright; there is no amount a marcher
can pay to be allowed to march if the City
decides the burdens are too great. Forsyth County
itself acknowledged that "[s]peech cannot be
financially burdened, any more than it can be
punished or banned, simply because it might
offend a hostile mob." 505 U.S. at 134-35. Thus,
a fee is no different from a ban, and in fact
might be less intrusive; but under Forsyth County
both a fee and a ban based on content cannot
stand.
I believe it is disingenuous for the City to
claim it does not know the content of the speech
before a particular event, and therefore does not
consider the content in determining whether the
permit shall issue, or in determining whether the
crowd size (including hecklers) will be
prohibitive. First, the permit application
requires the name of both the person signing the
application, and the name of the "authorized and
responsible leaders of the organization
conducting the parade." Chicago Ordinance sec.
10-8-330(e)(1)-(2). More often than not, the name
of the organization alone will tip the City off
to the content of the proposed speech, as was
certainly true in this case. The City could not
seriously contend that it did not know what
message would be conveyed by the Windy City Hemp
Development Board. Indeed, most of the
organizations whose speech is controversial and
who are most at risk for censorship are readily
recognizable from their names. See Collin v.
Smith, 578 F.2d 1197 (7th Cir. 1978), cert.
denied, 439 U.S. 916 (1978) (suit allowing the
National Socialist Party of America, a Nazi
organization, to march through Skokie, Illinois);
Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, 515 U.S. 557 (1995)
(suit prohibiting gay and lesbian organization
from participating in Boston’s St. Patrick’s Day
parade).
Second, the City requires the applicant to
estimate the approximate number of persons to
participate in the parade, and to inform the City
of the basis on which this estimate is made.
Chicago Ordinance sec. 10-8-330(e)(5). If the
Commissioner denies a permit for failure to
provide sufficient information about the crowd
estimate, the Commissioner will inform the
applicant of what additional information must be
provided in a new or amended application. Chicago
Ordinance sec. 10-8-330(l). These last two
factors combine to require the applicant to
provide the City with the information necessary
for the City to estimate the response (including
the hostile response) to the parade. Because the
applicant is required to provide the basis for
the crowd estimate, the content of the speech and
its potentially controversial nature are
necessarily implicated. In effect, the applicant
is required to inform the City of the content of
the speech if the content (and the controversial
nature) of the speech affects the crowd estimate.
Having required the applicant to provide this
information, the City may not then deny that it
is using that information in deciding whether to
issue a permit.
Nor do I see how the words "traffic hazards"
save the ordinance from the dictates of Forsyth
County. Counter-protestors are just as likely to
threaten to spill out into the streets as they
are to assault marchers. When the City is
assessing whether it has adequate numbers of
peace officers to protect both participants and
non-participants from traffic hazards, it is
necessarily considering both the number of
counter-demonstrators and the possibility of
unruliness and violence. The Supreme Court
rejected Forsyth County’s characterization of its
ordinance as content-neutral on the grounds that
it was aimed at a secondary effect--the cost of
maintaining public order. 505 U.S at 134. In the
Court’s view, because the secondary effect with
which the County purported to be concerned was
entwined with the message that the permit-seekers
sought to convey, "it cannot be said that the
fee’s justification ’ha[s] nothing to do with content.’"
505 U.S at 134 (quoting Ward, 491 U.S. at 792).
Likewise, in Chicago, it cannot be said that
assessing the number of officers needed to
protect participants and non-participants from
traffic hazards has nothing to do with content of
the proposed parade. In some part, that
assessment will be based on the size of any
counter-demonstration that might ensue, on the
level of hostility that the parade might
generate. Traffic is difficult in a city like
Chicago on the best of days, and it can be
disrupted by even minor mishaps. It is therefore
easy to imagine that the City might deem even a
small parade too great a threat to the orderly
flow of traffic if the content of the parade
strikes the City regulators as controversial. In
effect. under the Chicago ordinance, counter-
protestors can apply their heckler’s veto by
threatening to show up in large numbers and
create traffic hazards of their own.
Although the ordinance provides that the City
must issue "to the extent practicable" a permit
to hold the parade on an alternate date or on an
alternate route with comparable visibility, in
the very least hecklers are given the power to
delay or move the event. Timing and location can
be integral to the message, and I believe Forsyth
County does not allow the City to convey this
power to hecklers. Chicago is a city of
neighborhoods, each with its own distinct
character. A march through the Back of the Yards
neighborhood would be no substitute for a march
through nearby Bridgeport when the purpose of the
march is to protest a racially motivated attack
on an African-American youth who happened into
the mostly white neighborhood. See Cindy
Schreuder & Heather Lalley, Hopes Rise for Teen a
Week After Beating Victim Stirs from His Coma as
150 March in Bridgeport, Chi. Trib., March 29, 1997,
at 1. A directive to provide "comparable public
visibility" on a "similar route" can strip the
message of most of its meaning.
Moreover, I do not believe that the Park
District case supports the majority’s contention
that the Chicago parade ordinance does not offend
Forsyth County. It is true that the cost of the
liability insurance in Thomas was related to the
size of the event and the nature of the
facilities utilized, and not to the content of
the speech or the potential for violent response
to the speech. The majority contends that
determining whether there are sufficient peace
officers to handle traffic-related hazards
similarly requires only a consideration of the
size of the parade, its route and time. Those
considerations may certainly come into play, but
the ordinance does not limit the City to such
objective factors. It allows the City to
subjectively determine whether the burden on
municipal resources is too great to allow the
parade to go forward, without reference to any
standards. Under Forsyth County, any law
requiring a license before protected speech may
take place must contain narrow, objective, and
definite standards to guide the licensing
authority. 505 U.S. at 131 (citing Shuttlesworth
v. Birmingham, 394 U.S. 147, 150-51 (1969)). The
reason for this, according to the Supreme Court,
is that when a permit scheme allows the appraisal
of facts, the exercise of judgment and the
formation of an opinion by an uncabined licensing
authority, the danger of censorship is too great.
See Forsyth County, 505 U.S. at 131 (citing
Cantwell v. State of Connecticut, 310 U.S. 296,
303 (1940) and Southeastern Promotions, Ltd. v.
Conrad, 420 U.S. 546, 553 (1975)). The Chicago
parade ordinance allows not only the appraisal of
facts and exercise of judgment warned against in
Forsyth County and other cases, but also grants
City officials free reign to consider the effect
of counter-demonstrations on its ability to
protect against traffic hazards. Therefore,
unlike the park ordinance, the parade ordinance
allows the City to deny permits based on a
heckler’s veto. The Supreme Court has not
repudiated Forsyth County and I do not believe
this Court should do so on its own. Therefore, I
respectfully dissent.
FOOTNOTE
/1 Lest we think this discussion is purely
academic, Mayor Rudolph Giuliani of New York
recently reminded us that cities do attempt to
censor controversial messages. See Giuliani Forms
’Decency’ Panel to Review Public Art, L.A. Times,
Feb. 17, 2001, at A24. Offended by a photograph
displayed at the Brooklyn Museum of Art, the
Mayor announced that he was forming a task force
to monitor decency in tax-sponsored art exhibits.
The photograph depicted a nude African-American
woman as a Christ-like figure at the Last Supper.
Giuliani had previously cut off funds from that
same museum when he was offended by an earlier
display. A federal court declared the funding
freeze unconstitutional, and the City restored
the funds. Similarly, Chicago is not immune to
the phenomenon of government censorship. See Alf
Siewers & Ray Hanania, Controversial Painting
Leads to Brush with Law, Chi. Sun-Times, May 12,
1988, at 1. Three City alderman removed a
controversial painting from the wall of a museum
associated with the School of the Art Institute,
and the police then impounded the painting. The
painting depicted the late Mayor Harold
Washington in a manner that many found offensive.
APPENDIX