From the November 1994 issue of The FBI's Law Enforcement Bulletin
Three general first amendment principles guide departmental decisionmaking in controlling public protest. First, political speech in traditional public forums, such as streets and parks, is afforded a very high level of first amendment protection, and blanket prohibitions of such speech are generally unconstitutional. Second, reasonable time, place, and manner restrictions on such speech are permissible if they are content-neutral, narrowly tailored to serve substantial government interests, and leave ample alternative ways for the speech to occur. Third, speech or expressive conduct can be restricted because of its relationship to unlawful conduct, such as disorderly conduct or trespass.
The Supreme Court has ruled unconstitutional permit schemes that vest government decision-makers with uncontrolled discre-tion in deciding whether to issue a particular permit.5 Ideally, a permit scheme should include:
However, the court suggested the first amendment would permit the city to use narrowly tailored regulations to minimize interference with pedestrian movement on crowded sidewalks, such as established times for such activity and limitations on the size and precise positioning of the tables.8
Moreover, the city's legitimate interest in preserving the character and ap-pearance of its historic district might justify restrictions, if the city's permit scheme has content-neutral standards narrowly tailored to serve that objective and the city proves that its aesthetic concerns are sufficient to warrant the abridgment of first amendment rights.9
The court emphasized that a permit process cannot be used to "...impose even a place restriction on a speaker's use of a public forum on the basis of what the speaker will say, unless there is a compelling interest for doing so, and the restriction is necessary to serve the asserted compelling interest."12 The court ruled the city's denial of a permit request from the Ku Klux Klan to march 11 blocks and the resulting decision to limit the march to only 4 blocks was unconstitutionally based on anticipated listener reaction, which turns on the group marching, the message of the group, and the extent of antagonism, discord, and strife the march would generate.13
However, the court also held that a restriction based on the threat of violence could be constitutionally justified if that threat of violence is beyond reasonable control of the police.
Supreme Court Rejects Permit Fee Based on Listener Reaction To what extent can the government assess fees and costs for the issuance of a permit authorizing expressive activity in a public forum? In Forsyth County, Georgia v. The Nationalist Movement,17 the Supreme Court ruled unconstitutional a parade ordinance that permitted a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order. The Court said that a $1,000 cap on the parade permit fee did not render the otherwise invalid ordinance constitutional. Specifically, the Court noted that there were no articulated standards, either in the ordinance or in the county's established practice, to guide the decision of how much to charge for police protection or administrative time--or even whether to charge at all.18 Not only was there a possibility of censorship through such uncontrolled discretion, but the county's fee also often depended "...on the administrator's measure of the amount of hostility likely to be created by the speech based on its content."19
While those wishing to express views unpopular with bottle-throwers might have to pay more for their permit, the Court noted the county did not even charge for police protection for 4th of July parades, which drew large crowds that required the closing of streets.20 The Court concluded the county imposed a fee only when it became necessary to provide security for parade participants from angry crowds opposing their message and that listener's reaction to speech is not a content-neutral basis for assessing a permit fee.21
For example, a Federal district court upheld the Kansas City Police Department's policy of requiring parade sponsors to pay for the cost of traffic control.23 The court concluded the department's extensive list of factors used to project associated police costs were content-neutral, with the exception of a "crowd control" factor, which the court said was unconstitutional and needed to be severed from the otherwise constitutional policy.24 Similarly, the U.S. Court of Appeals for the Sixth Circuit upheld a Columbus, Ohio, ordinance that required prepayment of an $85 fee for the cost of processing a parade permit application and prepayment of the cost for traffic control. The court ruled that the ordinance 1) did not permit speculation about the degree of violence a parade may provoke; 2) provided protection for the marchers without consideration of its cost; and 3) contained objective standards related to traffic control and not related to speculation about the potential for disturbances based on the parade's content.25
Precedential support for the assessment of costs also can be found in a California appellate court decision upholding portions of an ordinance that requires a parade permittee to reimburse the city for, and pay in advance, an estimate of "all city departmental service charges incurred in connection with or due to the permittee's activities under the permit." The ordinance also requires that "if city property is destroyed or damaged by reason of permittee's use, event or activity, the permittee shall reimburse the city for the actual replacement or repair cost of the destroyed or damaged property."26
The court said the fees correspond to the size of the parade and its impact on normal traffic and not the size of the crowd in attendance. Also, the departmental service charge and cleanup reimbursement requirements are textually tied to the activities of the permittee itself and does not purport to impose responsibility for the acts of others.27
It is constitutionally significant that in all the above cases upholding permit fees and costs, indigent groups unable to pay the fees were not precluded from engaging in expressive activity, because an alternative forum was available. For example, sidewalks were free for conducting a parade because traffic control was not affected and parks were available without cost for related speech activities.
However, the protestors continued to impede access to the clinic by congregating on the paved portion of the street leading to the clinic and by marching in front of the clinic's driveways.29 As vehicles heading toward the clinic slowed to allow the protesters to move out of the way, "sidewalk counselors" would approach and attempt to give the vehicle's occupants antiabortion literature. The number of people congregating varied from a handful to 400, and the noise varied from singing and chanting to the use of loudspeakers and bullhorns. Protesters also picketed in front of clinic employees' residences.
Because of this conduct, the Florida court issued an amended injunction which, inter alia, excluded demonstrators from a 36-foot buffer zone around the clinic entrances and driveway and the private property to the north and west of the clinic. The injunction also restricted excessive noisemaking within the earshot of, and the use of "images observable" by, patients inside the clinic, prohibited protesters within a 300-foot zone around the clinic from approaching patients and potential patients who do not consent to talk, and created a 300-foot buffer zone around the residences of clinic staff. The Supreme Court concluded that injunction-based restrictions must burden no more speech than necessary and that an injunction regulating a particular group's activities that express a particular viewpoint is not impermissibly content-based when premised on the group's past illegal or inappropriate actions.30 Because all injunctions, by their very nature, apply to particular groups or individuals, the Court said the test for determining content-neutrality is whether the government's purpose in regulating the speech is without reference to its content.31
The Court held that injunctions carry greater risks of censorship and discriminatory application than generally applicable statutes and ordinances and that content-neutral injunctions must therefore be evaluated under a somewhat more stringent test to determine if "...the challenged provisions of the injunction burden no more speech than necessary to serve a significant government interest."32 The Court then determined the constitutionality of the injunction's buffer zones, noise restrictions, ban on the display of signs and visual images, and restriction on residential picketing.
Conversely, the Court said that a portion of the 36-foot buffer zone that extended to private property on the back and side of the clinic was unconstitutional because it burdened more speech than necessary to protect access to the clinic.34 Because there was no evidence that the protestors had ever used the private property to obstruct access to the clinic, the Court found that this portion of the buffer zone did not serve a significant government interest.
The Supreme Court also held unconstitutional a buffer zone provision that ordered protestors to refrain from physically approaching any person seeking services of the clinic, unless such person indicates a desire to communicate in an area within 300 feet of the clinic. While the stated purpose of this restriction was to prevent clinic patients and staff from being "stalked" or "shadowed" as they approached the clinic, the Court said a prohibition on all uninvited approaches, regardless of how peaceful the contact may be, burdens more speech than necessary to prevent intimidation and to ensure access to the clinic.35 The Court found this ban on all uninvited approaches unconstitutional "...absent evidence that the protesters' speech is independently proscribable (i.e., "fighting words" or threats), or is so infused with violence as to be indistinguishable from a threat of physical harm."36
Using a similar rationale, the Supreme Court of New Jersey held an injunction provision creating a buffer zone was too broad-based on an insufficient history of threats and intimidation.37 Rather than prohibiting all expressional activities on the sidewalk directly in front of the medical center, the court said the injunction should have allowed a limited, controlled form of expression near the entrance, while restricting the troublesome mass of protestors to a location across the street. The court said the injunction should give consideration to the right of protestors to make their presence known and to the role of sidewalk counseling in that process, while at the same time protecting against any harassment of the patients or others who wish to enter the clinic.
Nonetheless, a history of intimidation by a particular group may justify a restrictive buffer zone. For example, the California Supreme Court upheld an injunction provision creating a "clear zone" that effectively barred antiabortion protestors from the public sidewalk in front of a clinic by requiring that all picketing, demonstrating, or counseling take place on the public sidewalk directly across the street.38 The court said the restriction was justified based on the group's history of intimidation and the fact that the first amendment does not guarantee the right to a captive audience.
Other courts have upheld disorderly conduct prosecutions for unreasonable noise based on the government's broad powers to protect citizens from unwelcome noise. This can extend to any situation in which individuals cannot escape bombardment of their sensibilities and which substantially threatens their privacy interests.40
Bans on the Display of Signs and Visual Images The Supreme Court in Madsen ruled unconstitutional a provision in the injunction that prohibited protestors from using images observable to patients inside the clinic during the hours of 7:30 a.m. through noon on Mondays through Saturdays. The Court suggested the first amendment would not be violated by an injunction-based prohibition on the display of signs that could be interpreted as a threat or veiled threat to patients or their families. However, the Madsen injunction's broad prohibition on all "images observable" burdens more speech than necessary to achieve the purpose of limiting such threats.41 If the purpose is to reduce the level of anxiety and hypertension suffered by patients who find the message expressed in the placards disagreeable, the Court distinguished the ban on signs from restrictions on noise by noting that "...it is much easier for the clinic to pull its curtains than for a patient to stop up her ears."42
However, the Court found the 300-foot zone around residences burdened more speech than necessary because it banned general marching through residential neighborhoods or even walking a route in front of an entire block of houses.44 The Court concluded that "...a limitation on the time, duration of picketing, and number of pickets outside a smaller zone could have accomplished the desired result."45
A Federal district court ruled an ordinance could be enforced to prohibit continuous picketing in front of a doctor's home but not to prevent picketing in the doctor's neighborhood, so long as the picketers did not picket in front of the doctor's home or the two homes on either side of the doctor's home.46 The court noted sympathetically that police need bright-line standards to help them enforce such ordinances that raise difficult first amendment issues.