Forsyth County, GA v. The Nationalist Movement
Decided on June 19, 1992; 505 US 123


A. Issues Discussed:  1st Amendment (press, speech, association), 14th Amendment 

B. Legal Question Presented: 

Is it constitutionally permitted for a county ordinance to charge differing fees to different groups for public forum usage without any objective standards?

A. Background:

In January 1987, a series of racial integration demonstrations took place in Forsyth County, Georgia (Petitioner), and a total of sixty-six counter-protesters, mostly members of The Nationalist Movement and the Ku Klux Klan (Respondents), were arrested on charges of parading without a permit. Petitioner's county ordinance declared that the cost of protecting participants in such activities exceeded the usual and normal cost of law enforcement and thus should be borne by the participants; requiring every permit applicant to pay a fee of not more than $1,000, empowering the county administrator to adjust the fee's amount to meet the expense. The county attempted to impose such a fee for Respondent's proposed demonstration. Respondent filed suit against the county, claiming that the ordinance violates 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 this case. The Court of Appeals reversed, holding that an ordinance which charges more than a nominal fee for using public forums for public issue speech is facially unconstitutional.

The US Supreme Court granted certiorari to resolve a conflict among the Courts of Appeals concerning the constitutionality of charging a fee for a speaker in a public forum.
B. Counsel of Record:
Opposing Side
Richard Barrett argued the cause and filed a brief for respondent Robert S. Stubbs III argued the cause for petitioner.  With him on the briefs was Gordon A. Smith
C. The Arguments:
Opposing Side
The county ordinance unconstitutionally permitted the county to charge differing fees to different groups without any objective standards to prevent the county from basing the fee on the political views that a group sought to express. The ordinance is content neutral because it is aimed only at a secondary effect - the cost of maintaining public order.
Opposing Side
The American Civil Liberties Union filed an amicus brief in which they contended that a nominal fee of $100.00 sufficed.

Briefs of amici curiae urging affirmance were also filed for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; and for Public Citizen by David C. Vladeck and Alan B. Morrison.
Jody M. Litchford filed a brief for the city of Orlando et al. as amici curiae urging reversal.

"The Forsyth County ordinance requiring a permit and a fee before authorizing public speaking, parades, or assemblies in 'the archetype of a traditional public forum,' is a prior restraint on speech... Although there is a 'heavy presumption' against the validity of a prior restraint... the Court 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... Such a scheme, however, must meet certain constitutional requirements. It may not delegate overly broad licensing discretion 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, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication...

Respondent contends that the county ordinance is facially invalid because it does not prescribe adequate standards for the administrator to apply when he sets a permit fee. A government regulation that allows arbitrary application is 'inherently inconsistent with a valid time, place, and manner regulation because such discretion has the potential for becoming a means of suppressing a particular point of view...'

[T]he county has made clear how it interprets and implements the ordinance. The ordinance can apply to any activity on public property from parades, to street corner speeches, to bike races-and the fee assessed may reflect the county's police and administrative costs. Whether or not, in any given instance, the fee would include any or all of the county's administrative and security expenses is decided by the county administrator...

Based on the county's implementation and construction of the ordinance, it simply cannot be said that there are any 'narrowly drawn, reasonable and definite standards,' guiding the hand of the Forsyth County administrator. The decision how much to charge for police protection or administrative time - or even whether to charge at all - is left to the whim of the administrator. There are no articulated standards either in the ordinance or in the county's established practice. The administrator is not required to rely on any objective factors. He need not provide any explanation for his decision, and that decision is unreviewable. Nothing in the law or its application prevents the official from encouraging some views and discouraging others through the arbitrary application of fees. The First Amendment prohibits the vesting of such unbridled discretion in a government official.

The Forsyth County ordinance contains more than the possibility of censorship through uncontrolled discretion...

[T]he provision of the Forsyth County ordinance relating to fees is invalid because it unconstitutionally ties the amount of the fee to the content of the speech and lacks adequate procedural safeguards; no limit on such a fee can remedy these constitutional violations."

Held: The judgment of the Court of Appeals is affirmed.
Justice Vote: 5 Pro vs. 4 Con

  • Blackmun, H. Pro (Wrote majority opinion)
  • Stevens, J. Pro (Joined majority opinion)
  • O'Connor, S. Pro (Joined majority opinion)
  • Kennedy, A. Pro (Joined majority opinion)
  • Souter, D. Pro (Joined majority opinion)
  • Rehnquist, W. Con (Wrote dissenting opinion)
  • White, B. Con (Joined minority opinion, joined Rehnquist's dissent)
  • Scalia, A. Con (Joined minority opinion, joined Rehnquist's dissent) 
  • Thomas, C. Con (Joined minority opinion, joined Rehnquist's dissent)

The ACLU filed as amicus urging affirmance; the Supreme Court affirmed the ruling of the US Court of Appeals in a 5-4 vote, giving the ACLU an apparent win.

[Editor's Note:  This case is considered a win for the ACLU even though the ACLU’s amicus brief argued that a $100 speech fee sufficed and the court held that no fee should have been applied.  The Win/Loss definition used on this website attributes a win or a loss based on whether or not the side the ACLU supported won or lost.  Please see our Win/Loss methodology for further clarification.  This case in particular is considered a win for the ACLU because its amicus brief supported the Respondent and the Respondent won.]