Forsyth County v. Nationalist Movement

Background

Forsyth County, a mostly rural Georgia county with a history of racial exclusion, adopted an ordinance requiring permits and fees for parades and rallies after large, costly demonstrations in 1987. A white nationalist group sought to hold an anti–Martin Luther King Jr. Day rally; the county charged $100 based on the administrator’s estimate of his time. The ordinance allows fees up to $1,000 per day and lets the county administrator “adjust” fees to cover administration and the “maintenance of public order.” The group refused to pay and sued, challenging the law as a prior restraint on speech. Lower courts split; the Eleventh Circuit held that fees above a “nominal” amount violate the First Amendment.

Reasoning

The Court addressed whether letting an official vary permit fees to reflect expected policing costs violates free speech. It held the ordinance facially unconstitutional because it grants the administrator unbridled discretion without narrow, objective, standards and permits fees tied to the content of speech by relying on listeners’ likely reactions. The Court explained that costs based on hostile crowds would effectively penalize unpopular viewpoints, and a cap or small fee could not cure these constitutional defects. The Supreme Court affirmed the Court of Appeals.

Real world impact

The ruling protects speakers and demonstrators from being charged more because their message might provoke hostility. Local governments cannot use loosely defined permit schemes to shift policing costs onto particular speakers without clear, reviewable standards. Officials who wish to require fees must adopt narrow, objective, rules that do not turn on viewpoint or on the anticipated reaction of bystanders.

Dissents or concurrances

Chief Justice Rehnquist dissented, joined by three Justices. He argued the Court should have limited its review to whether fees must be “nominal,” relied on Cox v. New Hampshire to allow fees related to policing costs, and preferred remanding for factual findings rather than declaring the ordinance facially invalid.