Although there is a heavy presumption against the validity of a prior restraint, the Supreme Court of the United States has recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a march, parade, or rally. Overly broad licensing discretion may not be given to a government official. Further, any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message.
Petitioner, Forsyth County enacted Ordinance No. 34 which mandated permits for private demonstrations and other uses of public property. It also declared that the cost of protecting participants in such activities exceeded the usual and normal cost of law enforcement and should be borne by the participants. It further required every permit applicant to pay a fee of not more than $ 1,000. Moreover, the said ordinance empowered the county administrator to adjust the fee's amount to meet the expense incident to the ordinance's administration and to the maintenance of public order. After the county attempted to impose such a fee for the respondent, Nationalist Movement’s proposed demonstration in opposition to the Martin Luther King, Jr., federal holiday, Nationalist Movement filed a suit, claiming that the ordinance violated the free speech guarantees of the First and Fourteenth Amendments. The District Court denied relief, ruling that the ordinance was not unconstitutional as applied in the case. The Court of Appeals reversed, holding that an ordinance which charged more than a nominal fee for using public forums for public issue speech is facially unconstitutional.
Was Ordinance No. 34 unconstitutional?
The Court held that the ordinance, as implemented and construed by the county, violated the free speech guarantees of the Constitution's First and Fourteenth Amendments because a there were no narrowly drawn, reasonable, and definite standards guiding the hand of the county administrator, so that nothing in the ordinance or its application prevented the administrator from encouraging some views and discouraging others through the arbitrary application of fees. Furthermore, the fee assessed would depend on the administrator's measure of the amount of hostility likely to be created by the speech based on the speech's content, given that the administrator, in order to assess accurately the cost of security for parade participants, would necessarily examine the content of the message that was conveyed, estimate the response of others to that content, and judge the number of police necessary to meet that response. Given such constitutional violations, the Court concluded that neither the $ 1,000 cap on the fee charged, nor even some lower nominal cap, could save the ordinance for First Amendment purposes.