                                                                                                                           Opinions of the United
2007 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


3-21-2007

Nationalist Movement v. York
Precedential or Non-Precedential: Precedential

Docket No. 06-2184




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                                              PRECEDENTIAL

           UNITED STATES COURT OF APPEALS
                FOR THE THIRD CIRCUIT


                          No. 06-2184


             THE NATIONALIST MOVEMENT,
                              Appellant

                                v.

                        CITY OF YORK


APPEAL FROM THE UNITED STATES DISTRICT COURT
  FOR THE MIDDLE DISTRICT OF PENNSYLVANIA
                 D.C. Civil No. 02-cv-01917
  District Judge: The Honorable Yvette Kane, Chief Judge


                   Argued: January 30, 2007


Before: BARRYand ROTH, Circuit Judges, and DEBEVOISE,*
                   District Judge

                (Opinion Filed: March 21, 2007)




       *
         The Honorable Dickinson R. Debevoise, Senior District
Judge, United States District Court for the District of New Jersey,
sitting by designation.

                                1
Richard Barrett, Esq. (Argued)
P.O. Box 2050
Learned, MS 39154

Counsel for Appellant

James D. Young, Esq. (Argued)
Lavery, Faherty, Young & Patterson
225 Market Street
Suite 304, P.O. Box 1245
Harrisburg, PA 17108
       -AND-
Donald B. Hoyt, Esq.
Blakely, Yost, Bupp & Rausch
17 East Market Street
York, PA 17401

Counsel for Appellee



                  OPINION OF THE COURT



BARRY, Circuit Judge

        Appellant, The Nationalist Movement, challenges the
constitutionality of section 741.03 of the Codified Ordinances of
the City of York (“section 741.03” or “the Ordinance”), which
requires, in certain circumstances, that prospective users of
public land within the City file an application, pay certain fees,
and agree to a variety of conditions before permission for the use
of that land is granted. The District Court ruled that two
provisions of the Ordinance were unconstitutional, a ruling the
City has not appealed, but the Court upheld the remainder of the
Ordinance and granted summary judgment for the City. We will
affirm in part and reverse in part.




                                 2
                                  I.

        As relevant here, section 741.03, the Public Meetings
provision, prohibits persons from “[c]onduct[ing] a public
assembly, parade, picnic, or other event involving more than
twenty-five individuals” on public land without first obtaining a
permit. § 741.03(c)(1)(A). In order to obtain a permit, an
applicant must file a written application and tender an
application fee, § 741.03(d), which is $50 for city residents and
$100 for non-residents. In addition, an applicant must sign an
agreement “in which the applicant shall promise and covenant to
bear all costs of policing, cleaning up and restoring the park; . . .
to reimburse the City for any such costs incurred by the City;
and to indemnify the City and hold the City harmless from any
liability to any person resulting from any damage or injury
occurring in connection with the permitted event proximately
caused by the action of the permittee” or its agents, §
741.03(d)(6), and pay “a user fee,” § 741.03(d)(8). The
Ordinance provides that the requirements “for a user fee,
security deposits, or certificate of insurance shall be waived . . .
if the activity is protected by the First Amendment of the United
States Constitution and the requirement would be so financially
burdensome that it would preclude the applicant from using Park
property for the proposed activity.” § 741.03(f)(3).1 Completed
applications will “be processed in order of receipt,” §
741.03(e)(1), and grounds for denial, § 741.03(e)(5), deadlines,
and procedures for review and appeal, § 741.03(f), are set forth.

       On June 14, 2002, The Nationalist Movement submitted
an application to hold Henry Schaad Day2 and a King Holiday
Protest at York City Hall on January 20, 2003. On that
application, it objected to the various fees as a “violation of the
First Amendment,” but did not indicate that it was financially


       1
          The District Court found the security deposit and
certificate of insurance provisions to be unconstitutional, a finding,
as noted above, the City has not appealed.
       2
        Schaad was a Caucasian rookie police officer who was
shot and killed during race rioting in York in July 1969.
                                  3
unable to pay the fees and did not request a waiver form. The
City denied the application as incomplete and a series of letters
then passed between the parties. Following the final rejection of
the application, The Nationalist Movement first requested a
waiver form and, on October 25, 2002, filed this action in the
District Court.

        The City moved to dismiss and The Nationalist
Movement moved for a temporary restraining order and a
preliminary and permanent injunction. Prior to the hearing on
the injunction, the parties agreed that The Nationalist Movement
could hold its event on January 20, 2003 without obtaining a
permit or paying more than a $1 nominal fee. The City did not
concede any defects in the Ordinance, but, rather, represented to
the Court that the Ordinance did not apply because the event
would have less than twenty-five participants. The event took
place without incident. The Nationalist Movement subsequently
filed applications to hold events in 2004 and 2005, applications
which have been held in abeyance pending resolution of this
case.

       On May 5, 2003, the City moved to dismiss based on the
“settlement agreement” which had been reached with The
Nationalist Movement. That motion was denied. The parties
then moved for summary judgment. By Memorandum and
Order dated March 24, 2006, the District Court ruled that the
requirements that a security deposit be paid and a certificate of
insurance obtained before a permit could issue violated the First
Amendment of the Constitution because they essentially allowed
the City to charge higher fees based on the content of the
applicant’s message. The Court upheld all of the other
challenged provisions as constitutional and granted summary
judgment for the City. In addition, the Court rejected The
Nationalist Movement’s as-applied challenge and equal
protection arguments. Resolution of The Nationalist
Movement’s request for attorneys’ fees was stayed pending this
appeal.

       We have jurisdiction over The Nationalist Movement’s
appeal pursuant to 28 U.S.C. § 1291. We exercise plenary
review of a district court’s order granting summary judgment.

                                4
Reese Bros., Inc. v. United States, 447 F.3d 229, 232 (3d Cir.
2006).

                                 II.

        We decide, first, whether The Nationalist Movement can
bring a facial challenge to the Ordinance. Although the 2003
Henry Schaad Day went forward as planned, the Supreme Court
has long held that statutes which threaten to chill First
Amendment speech may be facially challenged without the
necessity of the speaker being denied, or even having applied
for, a permit. City of Lakewood v. Plain Dealer Publ’g Co., 486
U.S. 750, 755–59 (1988); Shuttlesworth v. City of Birmingham,
394 U.S. 147, 150–51 (1969). As the Court explained in Plain
Dealer Publishing Co., “a facial challenge lies whenever a
licensing law 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.”
Plain Dealer Publ’g Co., 486 U.S. at 759. Because we agree that
the Ordinance chills speech on the basis of its content, The
Nationalist Movement has standing to maintain its facial
challenge.3

       We turn, then, to the constitutionality of the Ordinance.
In Forsyth County v. Nationalist Movement, 505 U.S. 123, 130
(1992), the Supreme Court held that an “ordinance requiring a
permit and a fee before authorizing public speaking, parades, or
assemblies” in traditional public fora “is a prior restraint on


       3
        Although we find that The Nationalist Movement can
maintain its facial challenge, we find its as-applied challenge to be
completely without merit. As noted above, the City allowed Henry
Schaad Day to take place as scheduled and charged The Nationalist
Movement a $1 nominal fee. As such, The Nationalist Movement
has no legitimate basis to challenge the application of the
Ordinance to it. Furthermore, the contention that the City
improperly failed to waive the application fee is belied by the
record. The Nationalist Movement did not comply with the
procedures in the Ordinance and it did not even request a waiver
form until after the final rejection of its application.
                                 5
speech” and therefore subject to a heavy presumption against its
validity. Because the government does, however, have an
interest in regulating competing uses of public space, such a
prior restraint will be found constitutional where it does “not
delegate overly broad licensing discretion to a government
official” and is a valid time, place, and manner restriction, i.e., it
leaves open ample alternatives for communication and is
content-neutral and narrowly tailored to serve a significant
governmental interest. Id.

        In Forsyth County, the Court was faced with a statute
which allowed the levying of a permit fee of up to $1000 per day
which was designed to defray administrative costs and the cost
of necessary law enforcement at the planned event. The Court
found such a variable fee to be violative of the First Amendment
for a number of reasons. First, there were no standards directing
the setting of the fee, such that it was “left to the whim of the
administrator.” Id. at 133. “The First Amendment prohibits the
vesting of such unbridled discretion in a government official”
because such power could be easily used in a political fashion.
Id. Second, and alternatively, the fee was, in part, based on the
content of the speech.

        Significantly, however, the Court did not rule that
application or permit fees are unconstitutional. In fact, the Court
cited its earlier decision in Cox v. New Hampshire, 312 U.S. 569
(1941), in which it stated that “[t]here is nothing contrary to the
Constitution in the charge of a fee limited” to “meet the expense
incident to the administration of the Act and to the maintenance
of public order in the matter licensed.” Cox, 312 U.S. at 577.

        There is no discretionary component involved in setting
the application fee here. The fee is $50 for residents and $100
for non-residents and, absent waiver, is applied across the board
to all prospective users of “Park property.” This fee is nominal,
is not content based, and is narrowly tailored to allow the city to
recoup the cost of processing the application. Under Forsyth
County, there is nothing about the application fee that is




                                  6
violative of the First Amendment.4

        Furthermore, at oral argument the City conceded that it
reads the provision in the Ordinance waiving a user fee, security
deposit, or certificate of insurance to apply as well to the
application fee, despite the seemingly contrary language in the
waiver provision itself.5 See Forsyth County, 505 U.S. at 131
(stating that courts must consider the government’s
“authoritative constructions of the ordinance, including its own
implementation and interpretation of it”). As such, as construed
by the City, the application fee does not unconstitutionally
burden the free speech rights of those speakers too indigent to
afford its payment. See Cent. Fla. Nuclear Freeze Campaign v.
Walsh, 774 F.2d 1515, 1523–24 (11th Cir. 1985) (discussing
Lubin v. Panish, 415 U.S. 709 (1974)).



       4
         The Nationalist Movement also challenges the $50/$100
application fee differential as violative of the Equal Protection
Clause. The District Court rejected this challenge, finding that the
lower fee for residents furthered the legitimate government purpose
of encouraging residents to hold events locally. The Supreme
Court has upheld residency requirements such as this under a
rational basis test where, as here, there was no contention that
fundamental rights were at issue. See, e.g., Martinez v. Bynum,
461 U.S. 321, 328–29 (1983) (school residency requirement);
Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 388–92
(1978) (hunting permit for sport). The Nationalist Movement has
not shown that the rational basis test does not apply to this content-
neutral minimal application fee, much less that, under that test, the
differential does not pass muster.
       5
         The City further acknowledged that the Ordinance should
be amended to more clearly reflect this interpretation of its scope.
It also acknowledged its understanding that the waiver provision
applies to the reimbursement and hold-harmless provisions. We are
skeptical as to how the waiver provision, in its current form, could
be read in such a fashion, and expect that during the amendment
process the City will rework that provision such that its scope is
clear.
                                  7
       In addition to the payment of an application fee,
applicants must sign an agreement “in which the applicant shall
promise and covenant to bear all costs of policing, cleaning up
and restoring the park” and “reimburse the City for any such
costs incurred by the City.” § 741.03(d)(6). We find that this
reimbursement provision is unconstitutional, and that the District
Court erred in finding to the contrary.6

        It is beyond peradventure that a city can establish a permit
scheme whose goal is to “assure financial accountability for
damage caused by” an event, Thomas v. Chi. Park Dist., 534
U.S. 316, 322 (2002), and can take into account the resulting
expense of an event in assessing a fee. Thus, for example, a
circus or other large parade can be assessed a larger fee than a
small parade, because the former would cause a larger expense
to the government than the latter. Cox, 312 U.S. at 577; see also
Murdock v. Pennsylvania, 319 U.S. 105, 116 (1943); Church of
the Am. Knights of the Ku Klux Klan v. City of Gary, 334 F.3d
676, 682 (7th Cir. 2003).

       Such expenses, however, cannot be based on the content
of the proposed speech. In Forsyth County, the Court found a
permit fee that was based, in part, on the need to defray the cost
of providing police protection to the speaker to be an
unconstitutional content-based fee.7 The Court ruled that such a


       6
          We reject the City’s argument that this provision is
constitutional because it is identical to a provision in the Chicago
Park District ordinance, an ordinance unanimously upheld by the
Supreme Court. Thomas v. Chi. Park Dist., 534 U.S. 316 (2002).
In Thomas, however, the ordinance was challenged only on the
ground that the rigid procedural requirements of Freedman v.
Maryland, 380 U.S. 51 (1965), should apply. The Court rejected
that challenge and noted that the petitioner did not argue that the
ordinance was not content-neutral or otherwise invalid as a time,
place, and manner restriction. Thomas, 534 U.S. at 323 n.3.
       7
         At first blush, a provision that charges for the policing of
an event seems like a content-neutral restriction because it serves
a purpose unrelated to content, even though it places a greater
                                 8
fee is necessarily based on the content of the speech because the
anticipated cost would need to be determined by estimating the
public’s reaction to the speech. Forsyth County, 505 U.S. at 134.
For instance, “[t]hose wishing to express views unpopular with
bottle throwers . . . may have to pay more for their permit.” Id.
The Court held that raising revenue for police services could not
justify such a content-based fee.8 Id. at 136; see also Church of
the Am. Knights, 334 F.3d at 680–82; Cent. Fla. Nuclear Freeze
Campaign, 774 F.2d at 1524–25; Invisible Empire Knights of the
Ku Klux Klan v. City of West Haven, 600 F. Supp. 1427,
1433–34 (D.Conn. 1985).

        Applying this principle, the District Court found that the
security deposit and insurance requirements imposed an
unconstitutional content-based restriction because the City based
the required amounts of the security deposit and insurance
coverage on the “group’s reputation” and the “unpopularity of
the group’s message.” Memorandum at 16 & n.6. This, the
Court held, “threatens to dissuade unpopular groups from
utilizing traditional public forums by placing a premium
on—what the city views as—unpopular speech” and is therefore
unconstitutional. Id.



burden on some speakers. See Ward v. Rock Against Racism, 491
U.S. 781, 792 (1989). The Court in Forsyth County, however,
dispelled any such idea, finding that “it cannot be said that the fee’s
justification has nothing to do with content” given that an accurate
estimation of the necessary security would “necessarily” involve an
examination of the content of the speech, an estimate of the
response of others, and a determination of the “number of police
necessary to meet that response.” Forsyth County, 505 U.S. at 134.

       8
        At that point in its analysis, the Court did not note the
standard that it was applying. Content-based regulations are
subjected to a higher standard of review than content-neutral ones.
The government must show that the regulation is necessary to serve
a compelling state interest and is narrowly drawn to achieve that
end. See Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231
(1987).
                                  9
       The reimbursement provision is similarly
unconstitutional. As the City conceded at oral argument, the
reimbursement provision is the flip side of the same coin as the
unconstitutional security deposit and insurance requirements.
Unlike those requirements, which require a speaker to incur
costs calculated at least partially on estimates linked to the
content of the proposed speech before its event takes place, the
reimbursement provision requires a speaker to pay, after its
event has taken place, the actual costs incurred by the City. We
find that this distinction is not constitutionally significant, at
least not in this case.

       The broad language of the reimbursement provision
clearly allows the City to charge a speaker not only for costs
rightfully associated with its event, but with numerous other,
content-based, costs.9 For example, the City would incur


       9
           This broad language can be contrasted with the
Ordinance’s hold-harmless clause, which requires the speaker to
agree “to indemnify the City and hold the City harmless from any
liability to any person resulting from any damage or injury
occurring in connection with the permitted event proximately
caused by the action of the” speaker. § 741.03(d)(6). On its face,
this clause applies only to damages for which the speaker can
legally be held liable, and, as the District Court pointed out,
Pennsylvania law provides that such provisions must be strictly
construed and “limited in scope to matters expressly covered
therein.” Fulmer v. Duquesne Light Co., 543 A.2d 1100, 1104 (Pa.
Super. Ct. 1988). As such, the hold-harmless clause here is
significantly narrower in scope than one recently upheld by the
Ninth Circuit. In Santa Monica Food Not Bombs v. City of Santa
Monica, 450 F.3d 1022 (9th Cir. 2006), the Court, over a strong
dissent, upheld a hold-harmless clause which was so broad as to
require a speaker to indemnify the city for the defense of frivolous
suits and for damages caused “by the conduct of an opponent of the
demonstration through no fault of the [speaker].” Id. at 1056.
While we need not comment on much less pass upon the
constitutionality of the provision at issue in that case, we note that
the hold-harmless clause at issue here would cover neither of these
situations.
                                 10
expenses planning for the public’s reaction to the speech,
making available the necessary resources to contain potential
counter-demonstrators, providing an appropriate level of police
presence to control and pacify counter-demonstrators, and
generally protecting the speaker. All of these actions would
necessarily require a consideration of the content of the proposed
speech and the anticipated reaction of the public. If we
countenanced a charge for such expenses, we would be allowing
the ruling in Forsyth County to be undermined by the simple
expedient of charging content-based fees after an event has taken
place rather than before and we would be ignoring precedent of
long standing holding that speech cannot be burdened because of
the reaction of others. See, e.g., Terminiello v. Chicago, 337
U.S. 1, 5 (1949); Schneider v. State (Town of Irvington), 308
U.S. 147, 162 (1939).

       Indeed, in many ways, the reimbursement provision is
even more offensive to the First Amendment than the security
deposit and insurance requirements struck down by the District
Court. An applicant who signed the agreement required by the
reimbursement provision would have no way of knowing the
scope of the liability to which it might be subjecting itself.
Although an applicant can plan for the level of participation by
members of its organization, it simply cannot accurately
anticipate the actions of others or the anticipated reaction of the
police. See, e.g., Terminiello, 337 U.S. at 5; Schneider, 308 U.S.
at 162–63; Van Arnam v. Gen. Servs. Admin., 332 F. Supp. 2d


        We recognize that even a narrowly-confined hold-harmless
clause can have an inhibiting effect on speech, particularly speech
concerning a controversial subject. See, e.g., Van Arnam v. Gen.
Servs. Admin., 332 F. Supp. 2d 376 (D. Mass. 2004). Given the
City’s acknowledged understanding that the waiver provision,
“fairly read,” encompasses the hold-harmless clause as well as the
application fee and the reimbursement provision, we would expect
it to acknowledge, as it has done with regard to the application fee,
that the provision should be amended to reflect this reading. See
supra note 5. Given the City’s interpretation, and the narrow scope
of the hold-harmless clause, we agree with the District Court that
the clause does not offend the First Amendment.
                                11
376, 402–03 (D. Mass. 2004). To require an applicant to agree
to pay this unquantified fee—which is based substantially on the
anticipated and actual reaction of others—before it can speak is
an unconstitutional chilling of speech even if, as the Seventh
Circuit remarked, “the fee is calculated with scrupulous
precision by a battalion of cost accountants.” Church of the Am.
Knights, 334 F.3d at 681.

       Furthermore, the reimbursement provision is ripe for
abuse. In deciding how best to police the event and charge the
speaker, the City is given unlimited discretion which could
easily be used to punish (or intimidate) speakers based on the
content of their messages. Given the substantial expense that
could be levied upon a speaker, and the almost limitless
possibility of abuse, it is an understatement to conclude that this
provision chills constitutionally-protected speech.10

                                 III.

       For the foregoing reasons, we will affirm in part and
reverse in part the order of the District Court and remand for
further proceedings.




       10
           We have considered The Nationalist Movement’s
remaining arguments (that is, those which were at least marginally
covered by the disappointing briefs of both parties, see, e.g., United
States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)), and find them
to be without merit. As such, the District Court’s rulings on these
matters will be affirmed.
                                 12
