United States Court of Appeals

For the First Circuit

No. 06-1177

TIMOTHY SULLIVAN and LAWRENCE E. DANSINGER,

Plaintiffs, Appellees,

v.

CITY OF AUGUSTA,

Defendant, Appellant.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

 Boudin, Chief Judge,

Campbell, Senior Circuit Judge,

and Lipez, Circuit Judge.

Stephen E.F. Langsdorf with whom Sigmund D. Schutz and Preti,

Flaherty, Beliveau & Pachios, LLP were on brief for appellant.

David G. Webbert with whom Johnson & Webbert, LLP was on brief

for appellees.

December 14, 2007
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CAMPBELL, Senior Circuit Judge. Defendant-appellant City

of Augusta, Maine ("Augusta" or "the City") appeals from the

judgment entered in favor of plaintiff-appellees Timothy Sullivan

and Lawrence E. Dansinger in the United States District Court for

the District of Maine. The court found that several provisions of

the City's parade ordinance and of its mass outdoor gathering

ordinance (the MOGO) violated the First Amendment.

On appeal, the City challenges the standing of the

plaintiffs and the ripeness of their claims, especially their right

to protest the MOGO. The City also challenges the district court's

rulings that provisions of both ordinances violate the Federal

Constitution. We conclude the plaintiffs did not have standing to

sue regarding the MOGO's alleged defects, hence we vacate all the

rulings of the district court regarding the constitutionality of

that ordinance's provisions. We affirm the court's rulings that

the advance notice and in-person meeting requirements of the parade

ordinance are constitutionally defective and affirm the district

court's ruling that the $478.55 overcharge to Sullivan was

unconstitutional. However, we reverse its rulings that the fee

provision grants excessive discretion to the police and that the

parade permit fee of $100 and associated charges for police traffic

control are unconstitutional insofar as indigents must pay them

without being given an opportunity to seek and secure a waiver on

account of their indigency.
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Background

On February 9, 2004, acting on behalf of a group known as

the March for Truth Coalition, which advocates the "worldwide end

of war and empire-building" and major social and economic reforms,

Sullivan applied to Augusta's City Police Department for a permit

under the parade ordinance, infra, proposing three routes over

Augusta's streets for a protest march. The march would be held on

Saturday, March 20, 2004, between 12:30-2:00 p.m. See Sullivan v.

City of Augusta, 310 F. Supp. 2d 348, 351 (D. Me. 2004) ("Sullivan

I"). The Police Department indicated it would grant the permit,

and, in addition to the $100 base fee, charged Sullivan and the

Coalition, as provided for in the ordinance, for what the Police

Department estimated would be the cost of the extra police officers

and police vehicles needed to control and divert traffic during the

event. The Police Department also required the Coalition to

provide a bond or other insurance.

Claiming the assessed estimate of traffic control costs

and the bond were unconstitutional burdens on the exercise of his

rights under the First Amendment, Sullivan moved on March 15, 2004

in the district court for a temporary restraining order ("TRO")

enjoining the City from imposing these conditions. The same day,

Sullivan filed a complaint in the district court challenging the

constitutionality of certain provisions not only of the City's

parade ordinance, under which he had sought a permit, but also of
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the City's separate MOGO, under which he had not sought a permit.

The district court granted the TRO in part, finding that Sullivan

had standing to challenge the parade ordinance and enjoining

Augusta from enforcing the bond requirement. The court also

considered "the requirements of the application fee and costs of

retaining law enforcement services" and concluded that "these

portions of the ordinance are constitutional as applied." Sullivan

I, 310 F. Supp. 2d at 354-55. The City subsequently amended the

parade ordinance to delete the bond requirement, but left intact

its other provisions. Thereafter, the Coalition paid the required

amounts to the City, the parade permit was issued, and the march

took place as scheduled on March 20, 2004. Sullivan did not seek,

nor is there evidence he ever discussed with the Police, and the

City did not request, that he obtain a second permit, under the

MOGO, for the March 20, 2004 event.

Sullivan then amended his complaint on September 28,

2004, adding a second plaintiff, Dansinger. Dansinger had applied

for a parade permit in August 2004 for a march he wished to hold in

October of that same year. After the City Police Department

responded to his application with a letter requiring him to pay a

fee and costs of almost $2,000, Dansinger responded that he was

unable to pay and sought, without response from the City, a waiver

of the total amount of fee and costs. No permit was issued, and

the proposed October march did not take place.
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Discovery followed the filing of the amended complaint,

and the parties submitted the case to the district court on a

stipulated record and filed cross motions for judgment on

liability. A stipulated record "allows the judge to decide any

significant issues of material fact that he discovers." Boston

Five Cents Sav. Bank v. Sec'y of Dep't of Housing & Urban Dev., 768

F.2d 5, 11-12 (1st Cir. 1986). Here, the agreed-upon record

included depositions of Sullivan, Dansinger, Joe Bandy (the

plaintiffs' expert witness), and Augusta Deputy Police Chief Major

Gregoire ("Gregoire"), and affidavits from Gregoire. Following

oral argument, the district court issued a decision holding that

the plaintiffs had standing to challenge both ordinances, that

their claims were ripe, that various provisions both of the parade

ordinance and of the MOGO violated the First Amendment of the

Federal Constitution, and that there was no need for the court to

abstain from ruling on the challenged ordinances. Sullivan v. City

of Augusta, 406 F. Supp. 2d 92 (D. Me. 2005) ("Sullivan II"). The

City filed this appeal from the district court's judgment entered

in accordance with its decision.

The district court in its decision also found in the

City's favor on plaintiffs' claim that it was violative of the

Federal Constitution for the City to waive the parade permit fee

for an event honoring law enforcement sponsored by the Maine Chiefs
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of Police Association, of which the City is a member. Plaintiffs

did not cross-appeal from that unfavorable finding.

Facts

The following facts are taken from the district court's

findings based on the stipulated record. See Sullivan II, 406

F. Supp. 2d at 95-99. As noted, Sullivan represented the March for

Truth Coalition, which wanted to parade on the streets of Augusta

to advocate for a variety of causes, including opposition to the

Iraq war. The plaintiffs' challenges to the parade ordinance and

the MOGO addressed several elements of both ordinances.

A. Parade Ordinance Fee

Portions of the Parade Ordinance, § 13-5, provide as

follows:

(a) No less than thirty (30) days prior to an intended

parade, march or other use of public ways within the

city, a permit must be applied therefor to the City

Police Chief or his designee. The City Manager may allow

a shorter time frame for good cause shown.

. . .

(c) Within ten (10) days of applying for the permit, as

a condition to its issuance, the applicant must meet with

the Police Chief to discuss and attempt to agree on the

details of the route and other logistics.

(d) The Police chief may deny the permit or alter the

route for traffic or safety reasons and impose reasonable

conditions including, but not limited to, time limits,

requirement to keep moving and on route, no amplification

or sound truck, no explosives, fireworks, or other

artificial noise.

(e) The cost of the permit shall be one hundred dollars

($100.00), plus the costs of traffic control per city
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collective bargaining agreement and clean up costs, as

estimated by the Police Department. The permit fee will

not include the cost of police protection for public

safety. The one hundred dollar ($100.00) fee is payable

at the time the application is submitted and the balance

at the time of its issuance. The City Council may modify

this fee from time to time by Order.

Augusta, Me. Code § 13-5 (1991). "If the permit is denied or

modified, the applicant may appeal in writing within five (5) days

to the City Clerk's office for determination by the City Council."

Id. at § 13-5(g).

B. MOGO

Section 3-116 of the MOGO provides:

(a) It is recognized that a mass outdoor gathering

attended by two hundred (200) or more persons may create

a hazard to public health and safety. Accordingly, it is

deemed to be appropriate and in the interest of the

public welfare to regulate the conduct of such gatherings

in order to protect the public health and safety.

(b) No person shall sponsor, promote or conduct a mass

outdoor gathering with the intent to attract or the

understanding that the gathering may attract two hundred

(200) or more persons until a permit has been obtained

therefor from the Augusta Police Chief or his designee.

The application for a permit must be submitted no less

than thirty (30) days prior to the mass gathering, unless

the City Manager allows a shorter time frame for good

cause shown.

Augusta, Me. Code § 3-116 (1991).

Section 3-117 states:

The Police Chief shall grant a permit to sponsor, promote

or conduct a mass outdoor gathering to be attended by two

hundred (200) or more persons upon written application

therefor unless it appears to the Police Chief within a

reasonable certainty that such gathering will

unreasonably endanger the public health or public safety.
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Id. at § 3-117.

Section 3-118 states:

Prior to the issuance of a permit under this article, the

applicant shall furnish the Police Chief with adequate

proof that the following will be available at the

gathering:

(1) The furnishing of adequate and satisfactory water

supply and sewer facilities;

(2) Adequate refuse storage and disposal facilities,

adequate medical facilities;

(3) Adequate fire and police protection; and

(4) Such other matters as may be appropriate for security

of health and safety.

The Police Chief may review such plans, specifications

and reports as is deemed necessary for a proper review of

the proposed mass gathering.

Id. at § 3-118. The permit fee is $100.00, plus the "cost

estimated by the City for cleanup and traffic control." Id. at §

3-120. The MOGO provisions do not apply "to athletic events

conducted by the Board of Education, Little League or other

organizations, provided alcohol is not available." Id. at § 3-122.

C. Plaintiffs' Applications

i. Sullivan's February 9, 2004 Application

Of the three proposed parade routes in Sullivan's

February 2004 parade permit application, Augusta Deputy Police

Chief Major Gregoire, the officer delegated responsibility, under

the Police Chief's oversight, to handle Sullivan's permit

application, determined the first would require twelve officers and

two police vehicles for traffic control, costing $2,077.44 and the

second, ten officers and two police vehicles, costing $1,761.20.
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In later discussions, Gregoire approved a third route, costing, he

said, $1,543.08. Sullivan II, 406 F. Supp. 2d at 97. To calculate

these costs, Gregoire said he considered only the following

factors: "the route to be taken, the duration of the route, the

estimated number of people who will attend, whether marchers intend

to close the entire road or only one direction of travel, and

whether there are any other events or special circumstances within

the City which could affect traffic." Gregoire testified that he

based his assessment of traffic control needs only on factors

"completely unrelated to the message to be communicated by

marchers." Sullivan and his March for Truth Coalition did not

themselves have the money to pay the permit fee, but they borrowed

the necessary funds from another organization. As already noted,

the fee was paid, the parade permit was issued, and the march went

on as planned on March 20, 2004. At no time did the City intimate

that Sullivan or the Coalition needed a second permit, under the

MOGO, in order to conduct a lawful march.

ii. Dansinger's August 23, 2004 Application

On August 23, 2004, Dansinger applied for a parade permit

to hold a peace march/rally on October 16, 2004, in conjunction

with the Million Worker March scheduled in Washington, D.C., the

next day. Dansinger had agreed he would apply for the permit and

assumed Sullivan and Tony Aman, another protestor, "would be doing

other aspects of the organizing." The Augusta Police Department
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responded to Dansinger's application by letter dated September 15,

2004, advising him that, in addition to the initial application fee

of $100, approval of the parade permit was conditioned on payment

of $1,979.32. Dansinger responded with a September 29, 2004 letter

from his attorney, explaining that the permit fee of almost $2,000

created a substantial financial hardship for him and requesting the

fee be waived because of his limited financial means. This letter

explained that Dansinger's annual income was $8,400, asserted that

he could not afford to pay the additional estimated permit fee, and

requested that Augusta establish an inability to pay exception for

the traffic control fees charged for free speech activities. In

spite of Dansinger's assertions of financial hardship, the Augusta

Police Department did not offer to waive the fee or any part

thereof, Dansinger did not pay the requested amount, no permit was

issued, and the proposed October 16 march was not held.

D. District Court Decision

The district court found that various sections of the

City's parade ordinance and MOGO, on facial challenge, violated the

First Amendment of the Federal Constitution. The court determined

that Section 13-5(e) of the parade ordinance providing that the

cost of the permit will be $100, plus the costs of traffic control

per city collective bargaining agreement and clean-up costs, as

estimated by the Police Department, was unconstitutional because it

vested too much standardless discretion in the police. The court
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held unconstitutional Section 13-5(a) of the parade ordinance and

Section 3-116(a) of the MOGO to the extent that each requires

thirty days' prior notice of a parade or MOGO application, unless

the City Manager allows a shorter time frame for good cause shown.

The court also held unconstitutional Section 13-5(c) of the parade

ordinance to the extent it requires, as a condition of its

issuance, a meeting between the applicant and the police chief

within ten days of applying for the permit to discuss and attempt

to agree on the details of the route and other logistics of the

parade. The court held unconstitutional Section 13-5(e) of the

parade ordinance and Section 3-120 of the MOGO to the extent they

contain no avenue for indigent permit seekers to obtain waivers of

the fees specified therein. The court also held unconstitutional

Section 3-122 of the MOGO, which exempts from permit requirements

"athletic events" conducted by the Board of Education, Little

League or other organizations, provided alcohol is not available.

Finally, the court noted in its opinion that there was no

need for it to abstain from deciding these constitutional questions

just because the plaintiffs had not appealed from the denial or

modification of any of their permit requests to the City Council,

as permitted by the parade ordinance.
We find no merit in plaintiffs' contention that plenary 1

review is reserved only for district court decisions denying First

Amendment challenges, while decisions (as here) providing support

for First Amendment claims are entitled only to more restricted

review.

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Discussion

A. Standard of Review

Our review here of the controverted matters is plenary.

Legal questions of standing and ripeness are obvious candidates for

de novo review, and "where the trial court is called upon to

resolve a number of mixed law/fact matters which implicate core

First Amendment concerns, the review . . . is plenary so that the

court may reduce the likelihood of a 'forbidden intrusion on the

field of free expression.'" AIDS Action Comm. v. MBTA, 42 F.3d 1,

7 (1st Cir. 1994) (quoting New York Times v. Sullivan, 376 U.S.

254, 285 (1964)). Plenary review is called for "simply because the

reaches of the First Amendment are ultimately defined by the facts

it is held to embrace, and we must thus decide for ourselves

whether a given course of conduct falls on the near or far side of

the line of constitutional protection." Hurley v. Irish-American

Gay, Lesbian and Bisexual Group of Boston, 515 U.S. 557, 567

(1995).1

B. Standing and Ripeness

i. Standing to Challenge MOGO

The City of Augusta argues on appeal, as it did below,

that the plaintiffs lacked standing to challenge any part of the
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MOGO. We agree. For standing to challenge the constitutionality

of a particular municipal ordinance such as the parade ordinance or

the MOGO, plaintiffs had to show an objectively reasonable

possibility that the ordinance would be applied to their own

activities. See Osediacz v. City of Cranston, 414 F.3d 136, 143

(1st Cir. 2005). In the case of the parade ordinance, under which

Sullivan sought and actually received a parade permit and Dansinger

sought, but did not obtain, a parade permit, plaintiffs have made

a sufficient showing. But we find no similar showing sufficient to

establish standing to challenge the MOGO, the City's mass outdoor

gathering ordinance. Plaintiffs did not acquire or seek a MOGO

permit. They did not allege, and there was no evidence in the

record that anyone connected with the City ever indicated to

plaintiffs, that they would be required to obtain a permit under

the MOGO as a prerequisite to conducting their proposed street

marches, nor was there evidence or even allegations that, in

addition to a parade permit, plaintiffs needed, or reasonably

believed they needed, a permit under the MOGO in order to conduct

such activities in conformity with existing municipal policy and

law.

As the district court recognized, the relaxation in First

Amendment cases of certain prudential standing requirements does

not mean that plaintiffs can dispense with the need to meet core

Article III standing principles. Osediacz, 414 F.3d at 141; see
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Sec'y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947,

956-57 (1984) ("[I]n the area of freedom of expression, an

overbroad regulation may be subject to facial review and

invalidation, even though its application in the case under

consideration may be constitutionally unobjectionable," but Munson

still must "satis[fy] the requirement of 'injury-in-fact' and

whether it can be expected satisfactorily to frame the issues in

this case [i.e., its case must be 'ripe'].").

"Injury-in-fact" has been described by the Court as "an

invasion of a legally protected interest which is (a) concrete and

particularized . . . and (b) 'actual or imminent, not conjectural

or hypothetical.'" Lujan v. Defenders of Wildlife, 504 U.S. 555,

560 (1992) (citations omitted). Plaintiffs have failed to carry

their burden of showing that they have sustained any injury-in-fact

on account of the MOGO. Without suffering such an injury, they

lack standing to challenge the constitutionality of various

provisions of that ordinance.

The district court recognized that plaintiffs were

required to show injury-in-fact relative to the MOGO, and that to

establish such injury in the present circumstances, they must show

an objectively reasonable possibility they would need a permit

under that ordinance in order to engage lawfully in their intended

street marches. See Osediacz, 414 F.3d at 143. The court believed

that such a showing had been made here. It construed the language
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of the MOGO as overlapping with that of the parade ordinance. It

believed that marches such as plaintiffs sponsored or proposed,

while covered by the parade ordinance, could also be considered to

be mass outdoor gatherings if held with the intent to attract or

with the understanding that the gathering may attract two hundred

(200) or more persons; and that under the language of the MOGO,

Augusta might (although it did not) require a separate MOGO permit

as well as a parade permit.

In the district court's view, the undefined phrase in the

MOGO, "mass gathering," could well include a parade. The City

might want the sponsor of "a large parade" to furnish the health

and safety items specified in the MOGO, i.e., adequate medical

facilities, adequate and satisfactory water supply and sewer

facilities, and refuse storage and disposal facilities. The court

believed that "sewer facilities" could be interpreted to mean

portable toilets and that other terms could likewise be read in a

way relevant to parades and marches.

The district court believed that the deposition testimony

of Deputy Police Chief Major Gregoire, rendered on October 6, 2004,

indicated the City's ambivalence about the MOGO's role. Asked

whether a parade of 3,000 people for a mile down a City street was

a mass gathering, Gregoire replied: "That's--I mean, that's an

interpretation. I don't know. I would have to review what the

ordinance said. They are moving and that type of thing. They
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could be considered a parade. It's a matter of interpretation."

In the court's opinion, this reply was inconsistent with, perhaps

even contradictory of, Gregoire's subsequent affidavit, dated March

15, 2005, in which Gregoire stated positively, "the City interprets

the Mass Outdoor Gathering permit to only apply to a gathering

which occurs at a fixed location."

The two, as it believed, inconsistent statements by

Gregoire led the district court to conclude, "if Major Gregoire

changed his mind once, he could do so again," and to find that

"when plaintiffs applied for their permits, there was a reasonable

possibility that the City might interpret the MOGO to apply to

their conduct." The court ruled that "in light of Major Gregoire's

changing testimony and in the absence of a long-standing municipal

practice, this Court finds the City of Augusta has not adopted an

authoritative interpretation so as to eliminate its application to

marches or parades."

With respect, we do not agree with the district court's

analysis. We do not think plaintiffs have shown a realistic

likelihood that, in addition to a parade permit, the City might

have required them to receive a MOGO permit for the marching

activities reflected in this record. Textually, we do not read the

two ordinances as requiring persons like plaintiffs proposing an

ordinary street march on the City's public streets to obtain more

than a parade permit. And, if there were any question about this,
We note, in addition, the total absence of allegations in the 2

amended complaint, or facts in the stipulated record, indicating

that the MOGO has in any way chilled or affected plaintiffs'

conduct. See infra.

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Gregoire's affidavit as to the City's interpretation,

uncontradicted by anything shown in the record, and supported by

the City's consistent willingness to allow these plaintiffs to

march without requiring more than a parade permit, is entitled to

be credited as reflecting the City's authoritative view that a MOGO

permit was not needed.2

a. Interpretation of the Language of the Ordinances

Looking first at the text of the parade ordinance, it

requires a permit thereunder for "an intended parade, march or

other use of public ways within the City" -- precisely the events

the plaintiffs intended and for which they sought, and in

Sullivan's case received, parade permits. Plaintiffs never sought,

nor were they advised by anyone to obtain, a MOGO permit,

presumably because the parade ordinance alone referred specifically

to parades and marches on the City's public ways, while the MOGO

said nothing about moving events of this character. Rather, the

MOGO addresses the licensing of what it calls, without further

definition, "a mass outdoor gathering with the intent to attract

two hundred (200) or more persons." The MOGO thus addresses an

undefined (except for the 200-person benchmark) generic class of

mass gatherings without any limits as to type or place. In
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comparable circumstances -- given two ordinances, one specific and

the other general -- Maine's courts, like federal and other state

courts, have followed the interpretive rule that "specific

statutory provisions take precedence over general provisions."

Zeigler v. American Maize-Prod. Co., 658 A.2d 219, 222 (Me. 1995)

(quoted with approval in Camps Newfound/Owatonna Corp. v. Town of

Harrison, 705 A.2d 1109, 1115 (Me. 1998)). See also Armstrong v.

Town of Cape Elizabeth, 2000 WL 33675379 (Me. Super., Dec. 31,

2000) (applying foregoing principle to Cape Elizabeth zoning

ordinance). See generally Busic v. United States, 446 U.S. 398,

406 (1980) ("A more specific statute will be given precedence over

a more general one . . . ."). Under this interpretive rule, the

parade ordinance, which regulates in haec verba the very type of

conduct in which plaintiffs intended to engage, i.e., a march on

public ways, would seem likely to be construed -- as in fact it has

been by the City -- to take precedence over the more general MOGO,

which makes no particular mention of conduct of this sort. It

seems unlikely, therefore, that the two ordinances would be

construed in pari materia, viz. as both applying equally to

plaintiffs' proposed marches and as calling for dual permits and
We would add that the language used to describe the MOGO's 3

requirements, while conceivably able to be stretched to large

parades, seems far more apt to fixed locations. "[A]dequate and

satisfactory water supply and sewer facilities" could conceivably

extend to portable toilets, as the court said, but it is

questionable if someone having portable toilets in mind would have

described them in that way. At the very least, if the MOGO was

meant to regulate the parades and marches already regulated by the

parade ordinance, it would seem likely that one of the ordinances

would have cross-referenced the other.

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dual fees, and, in fact, no such construction has ever been 3

advanced by anyone on behalf of the City.

One can speculate, to be sure, as did the district court,

that giant parades or unusually large or lengthy street marches

might give rise to public health concerns similar to those upon

which the MOGO focuses. Such hypothetical events, indeed, might

even require fixed staging areas, in which case the MOGO might

become applicable. But there are neither allegations in

plaintiffs' amended complaint nor evidence in the stipulated record

that plaintiffs' marches implicated gatherings of over 200 persons,

that fixed staging areas or the like were contemplated, or that

plaintiffs' marches were so large or of such duration as to give

rise to public health considerations that might even arguably

implicate a second permit under the MOGO.

Sullivan's application for his march on March 20, 2004

stated it was to last only one and a half hours. Little else can

be discerned from the record about the actual characteristics of

plaintiffs' marches other than that, in Sullivan's case, the march
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occurred and that no suggestion was ever made by anyone that a MOGO

permit, in addition to the parade permit, was required. Indeed,

plaintiffs' amended complaint alleges that "Plaintiff [Sullivan]

was not required in this instance to obtain a Mass Gathering

Permit" and also states, "The only barrier to Sullivan exercising

his right to free speech and assembly in the traditional public

forum of Augusta's streets and sidewalks is his inability to pay

over $2,000 for police salaries, police squad car use, and event

insurance [all items connected with his application for a parade

permit at the time he applied]." Dansinger's march did not occur,

but, again, there is nothing whatever in the record to suggest

that, in his case, anyone, including the Police Department and

Dansinger himself, felt the parade ordinance was by itself

insufficient to meet all the City's and the public's regulatory

requirements. It is worth noting that paragraph (d) of the parade

ordinance allows the Police Chief to "impose reasonable conditions

including, but not limited to [certain conditions spelled out in

the ordinance]" (emphasis supplied). Under paragraph (d), the

Police Chief, without recourse to a separate MOGO permit, could

presumably condition issuance of a parade permit on provision of

specified facilities he thought reasonably necessary to safeguard

public health should he believe the circumstances of a particular

parade or march so required.
The City contends that for it to have read the two ordinances 4

as requiring duplicative permits would also have violated the rule

that statutes should be read so as to avoid constitutional

difficulties. Frisby v. Schultz, 487 U.S. 474, 483 (1988). To

require two permits for one street march would increase the burdens

on those seeking permission to march and would arguably, by that

fact alone, further chill their free speech rights. Additionally,

the MOGO requirements would be open to challenge under the First

Amendment as to whether or not the additional burdens they placed

upon plaintiffs' First Amendment rights were excessive. Without

passing on the validity of such contentions, we note the obvious

fact that an interpretation that each of the two ordinances applied

to plaintiffs would increase the scale of possible constitutional

difficulties, while an interpretation that only the parade

ordinance applies avoids many such difficulties.

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Looking simply at the text of the two ordinances,

therefore, we think it far less likely than did the district court

that they would ever be read as requiring anything but a parade

permit for the marches for which plaintiffs requested permits.4

Significantly, the only allegation in the amended complaint

regarding the MOGO's possible relevance is that it "employs legally

identical requirements on applicants for mass outdoor gatherings"

as does the parade ordinance and is subject to the same

constitutional objections. No concrete facts of any kind are

alleged showing how or why the MOGO, in addition to the parade

ordinance, would apply to plaintiffs' street march activities so as

to cause them to suffer injury-in-fact from that ordinance.

b. The City's Interpretation of the MOGO in Gregoire's

Affidavit

The City's own interpretation of the MOGO, as expressed

in Gregoire's affidavit, has been consistent with the above textual
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reading. And while this interpretation was formally stated only

after this litigation began, plaintiffs have neither alleged nor

produced any evidence that the City, before Gregoire's affidavit,

requested or received from anyone similarly situated to plaintiffs

(much less plaintiffs themselves), a MOGO permit in addition to a

parade permit. In other words, the City's actions have at all

times been consistent with the City's interpretation stated in

Gregoire's affidavit that the MOGO applies only to mass gatherings

at fixed locations.

Deputy Chief Gregoire, who handled both types of permits

for many years, testified to much experience with parades but very

few mass gatherings, from which it would appear that the MOGO was

not widely employed, and, one might infer, was not employed in

duplicate fashion with parades. The fact that Sullivan's March 20,

2004 march took place with only a parade permit, issued without

suggestion from the Police Department that he also needed a MOGO

permit (which, like the parade permit, is handled by the Police

Department), strongly supports the City's position, asserted in

Gregoire's affidavit, that it interprets the MOGO to apply only to

mass gatherings at fixed locations, not to parades and marches. It

is plaintiffs' burden to establish injury-in-fact as an essential

part of their standing -- not the City's burden to disprove it.

See, e.g., FW/PBS v. Dallas, 493 U.S. 215, 231 (1990) (holding that

standing must affirmatively appear in the record and it is the
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burden of the party seeking the exercise of jurisdiction in his

favor clearly to allege facts demonstrating that he is a proper

party to invoke judicial resolution of the dispute). See also

Lujan, 504 U.S. at 560-61; Osediacz, 414 F.3d at 139.

Here the evidence the district court saw as indicative of

an ambivalent City policy to require a MOGO permit in addition to

a parade permit was Gregoire's early deposition testimony,

responding to a question whether a parade of 3,000 people for a

mile down the street was a mass gathering. Gregoire's response was

"That's--I mean, that's an interpretation. I don't know. I would

have to review what the ordinance said." Gregoire then went on to

say, in the same response, "They are moving and that type of thing.

They could be considered a parade . . ." (emphasis supplied). Six

months later, the City submitted to the court Gregoire's affidavit

stating unequivocally, "The City interprets the Mass Outdoor

Gathering permit to only apply to a gathering which occurs at a

fixed location."

Between Gregoire's earlier deposition testimony and his

later affidavit stating the City's final position, we see no

discrepancy such as to warrant the district court's finding that he

had a "change of mind." His deposition response came in answer to

a question that could easily have caught Gregoire by surprise,

about whether an enormous hypothetical 3,000 person parade

extending for a mile would be a mass gathering. Gregoire said, in
-24-

effect, he didn't know -- he would have to review what the MOGO

said. Even so, he then suggested that, "They could be considered

a parade." In the six months that followed, Gregoire had the

opportunity to review the issue, to reread the ordinances, and to

consult with the Police Chief and other City officials, after which

his affidavit was filed stating unequivocally the City's

interpretation of the MOGO. That he consulted with superiors and

spoke for the City, not just himself, can be inferred from the fact

that in the affidavit he purported, under oath, to speak for the

City; it is only reasonable to assume that a ranking officer like

Gregoire would not have purported to speak for the City in

important litigation of this type without first obtaining

authorization. While he was not the Police Chief or City Manager,

he was the second in command in the Police Department, the agency

empowered by the two ordinances to issue both parade and mass

outdoor gathering permits, and, subject to the Chief, was in charge

of reviewing and acting upon applications to hold parades and

marches in Augusta.

As we say, we can see no contradiction between Gregoire's

guarded reply during his earlier deposition and his later

affirmative affidavit. The earlier response at most suggests

uncertainty. He said nothing directly contrary to what he later

represented in his affidavit was the City's interpretation. That

the City interpreted a MOGO permit to apply only to a gathering
-25-

which occurs at a fixed location fits reasonably within the

language of the two ordinances, supra, is consistent with the

City's practices as reflected in this record, and is entitled to be

taken as an authoritative representation of the City's

interpretation of its own ordinance. See Forsyth County v.

Nationalist Movement, 505 U.S. 123, 131 (1992) ("In evaluating

respondent's facial challenge, we must consider the county's

authoritative constructions of the ordinance, including its own

implementation and interpretation of it").

This is not a case where the agency's interpretation

during a lawsuit repudiates its earlier interpretation, suggesting

the later-announced interpretation might be a ploy to end the

lawsuit and leave the agency free to return subsequently to the

very practices that caused the plaintiff to sue. There is

absolutely no evidence to suggest that Gregoire's affidavit of the

City's interpretation constituted a repudiation of or departure

from some earlier different practice of the City, nor have

plaintiffs so alleged. Compare Friends of the Earth, Inc. v.

Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189 (2000) (observing

that defendants' cessation of challenged practice during course of

litigation did not guarantee they would not return to practice

after dismissal). The district court criticized the City for not

establishing that Gregoire's assertion of its interpretation

reflected "a longstanding municipal practice," but the City's
-26-

treatment of these plaintiffs has from the start been entirely

consistent with the interpretation of the MOGO stated in Gregoire's

affidavit, and plaintiffs, whose burden it is, have produced no

evidence of any inconsistency at any time in the City's treatment

of others. We see no reason not to accept the City's asserted

interpretation under these circumstances. 

We hold that plaintiffs did not meet their burden of

establishing a "reasonable possibility" that, in applying to hold

their street marches along City streets, they were or would be held

subject to the MOGO as well. We conclude, therefore, that

plaintiffs lack standing to litigate the various issues they raise

concerning the alleged defects in the MOGO as distinct from those

in the parade ordinance. We vacate the district court's judgment

insofar as it relates to any of the provisions of the MOGO.

Because plaintiffs lack standing to challenge the MOGO,

we need not examine the "ripeness" of their MOGO claims. Without

standing, plaintiffs' challenges to the MOGO provisions must be

dismissed.

ii. Standing to Challenge the 30-Day Advance Application

Requirement in the Parade Ordinance

The City argues that the plaintiffs do not have standing

to challenge the provision in the parade ordinance, § 13-5(a),

requiring applicants to apply for a permit "no less than 30 days

prior to an intended parade, march or other use of public ways
The thirty-day provision, to be sure, is qualified by 5

authorization to the City Manager to "allow a shorter time frame

for good cause shown." But because we find that essentially

standardless provision to be insufficient to redeem the thirty-day

requirement, infra, we believe that Sullivan's complained-of

-27-

within the City." The City does not challenge plaintiffs' standing

to mount constitutional claims as to any other provisions within

the parade ordinance. The City notes that plaintiffs never

demonstrated any intent or need to apply for their parade permits

fewer than thirty days before the marches for which the permits

were being sought. Sullivan made a timely application for his

permit, which ultimately he received. Dansinger never completed

his application for a parade permit, but was timely in his initial

application, so that it does not appear the 30-day requirement was,

for him, a stumbling block. 

But, notwithstanding their apparent ability to comply, we

believe the plaintiffs have standing to challenge, along with other

provisions of the parade ordinance, the constitutionality of the

thirty-day advance application provision. While it is true they

never applied later than the thirty days before the sought-for

permit, a late application is not necessary if injury can otherwise

be surmised. Osediacz, 414 F.3d at 143. Sullivan indicated such

injury in his deposition testimony that in late March 2004, he was

deterred from applying for a permit for an intended April 10, 2004

street march because it was too late for him to comply with the

thirty-day advance notice requirement. Sullivan's testimony was, 5
deterrence suffices to establish injury, especially where there is

no question as to plaintiffs' standing to challenge, on First

Amendment grounds, other aspects of the very same ordinance.

-28-

we believe, enough to permit plaintiffs to pursue a facial

challenge to the thirty-day requirement as part of their overall

attack on various aspects of the parade ordinance.

Because there was a showing of injury sufficient for

standing to attack the thirty-day provision, we need also to

determine the ripeness of this claim.

Ripeness calls for an evaluation of the fitness of the

claim and the hardship to plaintiffs of withholding immediate

judicial consideration. Rhode Island Ass'n of Realtors, Inc. v.

Whitehouse, 199 F.3d 26, 33 (1st Cir. 1999). We have said that

when free speech is at issue, concerns over chilling effect call

for a relaxation of ripeness requirements. El Dia, Inc. v.

Hernandez Colon, 963 F.2d 488, 496 (1st Cir. 1992) (stating that a

"facial challenge of this sort, implicating First Amendment values,

customarily works a relaxation of the ripeness criteria"). The

rationale for this relaxation is said to stem from a fear of

"irretrievable loss." Id. Thus, when First Amendment claims are

presented, "[r]easonable predictability of enforcement or threats

of enforcement, without more, have sometimes been enough to ripen

a claim." New Mexicans for Bill Richardson v. Gonzales, 64 F.3d

1495, 1499 (10th Cir. 1995) (quoting Martin Tractor Co. v. Federal

Election Comm'n, 627 F.2d 375, 380 (D.C. Cir.), cert. denied, 449
-29-

U.S. 954 (1980)). The standing and ripeness concerns are

intertwined, with the core issue being the reasonable fear of

enforcement. Whitehouse, 199 F.3d at 33. Here, Sullivan testified

to believing that the requirement to apply for a parade permit

thirty days before the event blocked his eligibility to receive a

permit for a short-notice street march he wished to hold on April

10, 2004 and that, as a result, he did not apply for a permit and

did not hold the march. His concern as to this provision is

closely linked to other concerns of and alleged injuries to

plaintiffs stemming from the parade ordinance's effect upon them.

We believe plaintiffs' challenge to the thirty-day provision is fit

to be decided now in this litigation, and that it would be a

hardship to plaintiffs were we not to do so. The challenge to the

thirty-day requirement was and is ripe for present review.

C. Parade Ordinance Issues

The district court struck down several provisions in the

parade ordinance as unconstitutional, holding them facially to

violate the First Amendment of the Constitution. Before

considering each of these in turn, we discuss certain generally

applicable principles mentioned also by the district court.

Sullivan II, 406 F. Supp. 2d at 106-07.

The district court properly held that protest street

marches such as the ones plaintiffs conduct are forms of assembly

and expressive speech protected by the First Amendment. See, e.g.,
-30-

Hurley, 515 U.S. at 568. That protection is not absolute, however,

since the First Amendment rights must be harmonized with the

"existence of an organized society maintaining public order without

which liberty itself would be lost . . . ." Cox v. State of New

Hampshire, 312 U.S. 569, 574 (1941). The Supreme Court went on to

say in Cox that regulating the use of the public streets and

restricting the use of highways to promote the public convenience,

"cannot be disregarded by the attempted exercise of some civil

right which in other circumstances would be entitled to

protection." Id. at 574. The Court thus upheld in Cox a

municipality's right to require marchers to obtain a license and

pay a fee (not more than $300, at the time) before parading on

public streets. The Court stated that "the question in a

particular case is whether . . . [the City's] control is exerted so

as not to deny or unwarrantedly abridge the right of assembly and

the opportunities for the communication of thought and the

discussion of public questions immemorially associated with resort

to public places." Id.

A notable aspect of the Supreme Court's analysis in Cox,

as the district court observed, is that a municipality's parade

permit ordinance is not to be reviewed as a "prior restraint" but

as a reasonable regulation of the "time, place and manner in

relation to the other proper uses of the streets." Cox, 312 U.S.

at 576. The Supreme Court has recently reiterated this standard in
In Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989), the 6

Supreme Court explained that "the principal inquiry in determining

content neutrality, in speech cases generally and in time, place,

or manner cases in particular, is whether the government has

adopted a regulation of speech because of disagreement with the

message it conveys." The main inquiry is not whether certain

speakers are disproportionately burdened, but rather, whether the

reason for the differential treatment is, or is not, content-based.

See Hill v. Colorado, 530 U.S. 703, 719-20 (2000).

While acknowledging that the parade ordinance is content- 7

neutral on its face, the plaintiffs have argued to us that Augusta

applied the ordinance in a viewpoint-discriminatory manner by

waiving the parade permit fee for the Maine Chiefs of Police

Association's annual parade. The district court disagreed. It

found that the City's waiver of the fee did not "disfavor or

suppress one viewpoint in favor of another." Rather, it held,

Augusta had merely used its funds permissibly to promote a speaker

deemed to be in the public interest. 

Although plaintiffs now argue against the district court's

resolution of this issue, they have never filed a cross-appeal from

the district court's determination that the waiver of fee for the

Maine Chiefs of Police Association's annual parade is

constitutionally permissible. We therefore lack jurisdiction to

consider plaintiffs' objections to the district court's specific

ruling on this issue. See United States v. Craven, 239 F.3d 91,

103 (1st Cir. 2001); Justice for All v. Faulkner, 410 F.3d 760, 772

(5th Cir. 2005). Cf. Johnson v. Teamsters Local 559, 102 F.3d 21,

28 (1st Cir. 1996) (dismissing late-filed cross-appeal for lack of

appellate jurisdiction). To the extent plaintiffs pursue this

claim on appeal on the ground that we may affirm the district

court's judgment invalidating the fee provision on any basis

supported by the record, we concur with the district court that the

waiver of the permit fee did not constitute viewpoint

discrimination.

-31-

regard to a municipality's content-neutral regulation of parades

and other public assemblies in its parks. See Thomas v. Chicago

Park District, 534 U.S. 316, 322-23 (2002).6

Augusta's instant parade ordinance is plainly contentneutral, as the district court found. Unlike regulations that are 7

not content-neutral, which are reviewed under a harsher strict-
Justice Kennedy, writing for the majority in Ward, emphasized 8

that while narrow tailoring in the content-neutral context was more

relaxed, the regulation may not "burden substantially more speech

than is necessary to further the government's legitimate interests.

Government may not regulate expression in such a manner that a

substantial portion of the burden on speech does not serve to

advance its goals." Ward, 491 U.S. at 799.

-32-

scrutiny standard, e.g., United States v. Playboy Entm't Group,

Inc., 529 U.S. 803, 813 (2000), content-neutral regulations are

reviewed under so-called intermediate scrutiny. Intermediate

scrutiny calls for narrow tailoring to serve a legitimate, contentneutral governmental interest, but the tailoring need not be the

least restrictive nor the least intrusive possible. Ward, 491 U.S.

at 798. See also Casey v. City of Newport, 308 F.3d 106, 110-11

(1st Cir. 2002); Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d

731, 736-37 (1st Cir. 1995). Time, place and manner regulations of

this type are constitutional if they: (1) do not delegate overly

broad licensing discretion to a government official; (2) are

narrowly tailored to serve a significant governmental interest;8

and (3) leave open ample alternatives channels for communication of

the information. Thomas, 534 U.S. at 323; New Eng. Reg'l Council

of Carpenters v. Kinton, 284 F.3d 9, 20 (1st Cir. 2002). We apply

these standards in our review of Augusta's parade ordinance.

We turn now to the constitutionality of the different

parade ordinance provisions.
-33-

i. Traffic Control Fee

Plaintiffs contend, as the district court held, that even

under the intermediate scrutiny afforded content-neutral timeplace-manner regulations, the fee provision of the parade ordinance

is unconstitutional. Section 13-5(e) provides, "The cost of the

permit shall be one hundred dollars ($100), plus the costs of

traffic control per city collective bargaining agreement and clean

up costs, as estimated by the Police Department." The ordinance

further provides, "The permit fee will not include the cost of

police protection for public safety." The $100 fee is payable at

the time the application is submitted and the balance at the time

the permit is issued.

The district court held that the fee provision delegated

overly broad discretion to the Augusta Police Department to

determine the costs of traffic control -- costs which plaintiffs

were required to pay as a part of the total parade permit fee.

Citing Forsyth, 505 U.S. at 132-34, the court ruled that the fee

provisions of the parade ordinance were lacking in narrow,

objective and definite standards sufficient to guide the discretion

of the Augusta Police Department in estimating the costs of traffic

control. Sullivan II, 406 F. Supp. 2d at 116.

The district court refused to consider as supplementing

the ordinance's own standards an affidavit from Deputy Chief Major

Gregoire in which he stated certain of the factors on which he
-34-

based his calculation of the traffic control fee. Id. at 116-17.

The district court ruled that the factors set forth in Gregoire's

affidavit went beyond anything found in the text of the ordinance

itself and were not shown to reflect the City's "well-established

practice," citing City of Lakewood v. Plain Dealer Pub. Co., 486

U.S. 750, 770 (1998). Id. at 117.

The district court also found that "the City charged Mr.

Sullivan $478.55 more than its actual overtime payments" to the

officers who served on the detail assigned to Sullivan's March 20,

2004 parade. This overcharge resulted from the fact that the City

estimated how many officers would be needed for traffic control,

and what they would be paid, before it knew which particular

officers would be available for the parade detail. Id. at 121-22.

The City's collective bargaining agreement requires paying each

officer for a minimum overtime shift of four hours, but the pay

rate of individual officers differs. In the present case, the

original estimate exceeded by $478.55 the cost of paying the

officers who took part in the March 20, 2004 parade detail.

Sullivan paid the original estimate, and no refund was tendered.

The district court rejected the City's argument that the pay

overcharge was offset by the City's not charging Sullivan for

certain of its administrative expenses, such as Gregoire's own time

to schedule and organize the parade detail. There was no evidence

in the record as to the latter costs. Pointing to precedent that
-35-

only a fee defraying actual expenses is permissible, and that

excess fees are unconstitutional, the district court held that the

fee was "overbroad" as it "does not bear a direct or precise

relationship to the actual costs incurred." Id. at 122.

Plaintiffs complained below, as they do now, that the

Police Department's determination of the estimated cost of traffic

control "relies heavily on a judgment call about the number of

officers that are required to provide traffic control" because the

department "has never established any written criteria or formula

for calculating the number of officers or vehicles as part of its

estimate of the traffic control cost." They argue this "broad

subjectivity and discretion" was highlighted by the police

department's increase of "its estimate by twenty percent, from

eight to ten, for the number of police officers needed to provide

traffic control for the parade route used on April 8, 2003 when the

same exact route was proposed for the March 20, 2004 parade." They

additionally argue that the provision's excessive discretion and

overbreadth are demonstrated by the fact the City overcharged them

for the actual cost of the additional officers during the March

2004 parade organized by Sullivan.

a. Excessive Discretion

We disagree with the district court and appellees that

the parade ordinance fee provisions lack sufficiently precise and

definite standards to guide the police. We agree, however, that
 The Court emphasized the total absence of "articulated 9

standards either in the ordinance or in the county's established

practice," to guide the administrator's fee-setting discretion.

"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." 505 U.S. at 133.

-36-

the permit fee charged to and paid for by Sullivan for the March

20, 2004 parade, which the court found was incorrectly inflated by

nearly $500, was, to that extent, unconstitutional as applied.

In deciding that the fee provision in the parade

ordinance granted constitutionally "excessive" or "unfettered"

discretion to the Augusta Police, the district court relied

particularly upon the Supreme Court's holding in Forsyth, 505 U.S.

at 137. In that case, a county ordinance mandated permits for

private demonstrations and other uses of public property, required

advance payment of a daily fee of no more than $1,000, and

empowered the county administrator to "adjust the amount to be paid

in order to meet the expense incident to the administration of the

Ordinance and to the maintenance of public order." Id. at 123.

The Court found the ordinance unconstitutional, noting, inter alia,

(1) the county administrator's "unfettered discretion" to determine

what expenses to include and to set the amount of the fee, and (2) 9

the fact that the ordinance allowed the fee to include the costs of

"necessary and reasonable protection of persons participating in or

observing said . . . activities." Id. at 133. The Court held the
Forsyth involved a content-based, not content-neutral, 10

ordinance, but the analysis of overly broad discretion as discussed

in Forsyth has also been applied in cases involving content-neutral

ordinances. See Thomas, 534 U.S. at 323.

Citing Forsyth and Niemoto v. Maryland, 340 U.S. 268, 271 11

(1951), the Thomas Court stated, "We have thus required that a

time, place and manner regulation contain adequate standards to

guide the official's decision and render it subject to effective

judicial review." 534 U.S. at 323.

-37-

latter costs were an improper charge upon the permittee, equating

it with basing a fee on the content of the speech. Id. at 133-36.10

While Forsyth stands as a clear warning against vesting

governmental officials with excessive discretion in regard to feesetting, and while "even content-neutral time, place and manner 11

restrictions can be applied in such a manner as to stifle free

expression," Thomas, 534 U.S. at 323, the range of fee-setting

discretion granted to the county administrator in Forsyth far

exceeded that granted here to the Augusta Police Chief and Police

Department. In Forsyth, unlike here, the county administrator was

not limited to estimating, as part of the fee, a particular

category of expenses within the administrator's expertise, like the

costs of traffic control. Instead he had discretion to decide the

kind and amount of administrative and policing expenses to include

(or exclude) from the fee, and it appears that he also assumed the

right to charge nominal or no fees to favored groups. Forsyth, 505

U.S. at 131-32 & n.9.
-38-

The fee-setting authority of the Augusta Police

Department is far more confined here. The ordinance provides, "The

costs of the permit shall be one hundred dollars ($100) plus the

costs of traffic control per city collective bargaining agreement

and clean-up" (emphasis supplied). The Police are given no

discretionary authority to estimate and charge costs other than the

costs of traffic control and clean-up, nor are they authorized to

vary the character of the costs as between applicants: the cost of

each permit "shall be" as described, resulting in a uniformlycomputed fee for each applicant. The cost of hiring police

officers for traffic control is "per city collective bargaining

agreement," requiring reference to that agreement for the amount to

be paid to each officer. Finally, the "cost of police protection

for public safety," the item the Supreme Court found to be

improperly included in the Forsyth County ordinance, is expressly

excluded by the parade ordinance from the costs passed on to permit

applicants.

Given the above limitations, the principal area left to

police discretion in estimating the Augusta permit costs lies in

determining the number of extra officers and police vehicles to

assign to a particular parade or march for traffic control

purposes. Plaintiffs complain the City has failed to articulate a

precise "formula" to guide the police in performing this estimate.

However, the plaintiffs have pointed to no evidence that there
-39-

exists any meaningful advance "formula" that could be inserted in

an ordinance to determine the number of needed officers and

vehicles in a given case. Parades and marches obviously vary

enormously in terms of size, timing, duration and location,

resulting often in quite different traffic control needs.

Experienced, professional judgment would seem to be the most likely

way to estimate how many extra officers will be needed. The City

states that the present marches involved the use of very heavily

trafficked streets, requiring diversion of traffic elsewhere during

the event. It is hard to see any purely mechanical means for

determining how many officers would be needed to direct traffic at

the various intersections of differing routes and neighborhoods. 

In any case, plaintiffs have offered no example of the

sort of "formula" they have in mind. In the circumstances, it

seems reasonable for the City to rely upon the experienced judgment

of its Police Department to determine personnel and police

vehicular needs for traffic control at a particular applicant's

parade or march. We take judicial notice that traffic control is

a major responsibility of local police departments around the

nation. Rerouting and directing traffic around construction sites,

accident scenes and the like are tasks the police regularly

perform. The police, moreover, know the traffic patterns and

problems along the different streets in their particular city and

its neighborhoods. Augusta could reasonably believe that its
-40-

Police Chief and his staff had the expertise to estimate, case by

case, the additional personnel and equipment needs for a traffic

control detail established to handle traffic problems caused by a

march on city streets. And once these needs are ascertained, the

City's collective bargaining agreement provides objective pay

information for determining overall costs.

In ruling that the ordinance provided insufficient

standards, the district court refused to take into account

Gregoire's affidavit that in determining the detail needed for

plaintiffs' marches, he was guided by certain implementing

criteria--criteria not unlike those a police officer said he

considered for similar purposes in Stonewall Union v. City of

Columbus, 931 F.2d 1130, 1135 (6th Cir. 1991). Speaking about the

costs charged to plaintiffs, Gregoire stated that the size of the

traffic control detail "is based only on factors which are

completely unrelated to the message to be communicated by marchers"

and includes the route to be taken, the duration of the route, the

estimated number of people who will attend, whether marchers intend

to close the entire road or only one direction of travel, and

whether there are any other events or special circumstances within

the City which could affect traffic.

We need not decide if Gregoire's affidavit should have

been given weight here. Regardless, it is difficult to see that

his stated criteria added much of constitutional import to what can
-41-

be gleaned from the terms of the ordinance itself. See supra. An

ordinance of this type must furnish "narrowly drawn, reasonable and

definite standards" that are "reasonably specific and objective,

and do not leave the decision 'to the whim of the administrator.'"

Thomas, 534 U.S. at 324 (quoting Forsyth County, 505 U.S. at 133).

We believe Augusta's ordinance furnished such standards quite apart

from the matters Gregoire mentioned. 

The parade ordinance directed the Police Department to

calculate the costs of traffic control and clean up relative to the

particular event for which a permit was sought. The making of a

relevant professional judgment of this kind may properly be

delegated to police and other officials. See Kinton, 284 F.3d at

26 (noting that "[p]ublic safety and convenience are

paradigmatically permissible considerations in the issuance of

permits" and judgments about public safety are inherently within

the competence of permitting officials). The factors Gregoire

listed in his affidavit for determining the size of the traffic

control detail -- the parade route, its duration, the estimated

number of people who will attend, whether entire or partial road

closure is involved, and whether there are other events or special

circumstances affecting traffic -- added few if any considerations

that would not seem perfectly obvious to anyone asked to determine

traffic control costs relative to a particular parade or march on

city streets. And, as previously noted, the ordinance itself rules
-42-

out charges that might be said to relate to the message "to be

communicated by the marchers" by excluding altogether from the

permit fee "the cost of police protection for public safety."

To be sure, the ordinance is terse; more extended glosses

provided by written standing orders and the like might arguably be

helpful in some way. But we believe the parade ordinance's fee

provision affords, by itself, sufficient "narrowly drawn,

reasonable and definite standards" so that the fee-setting decision

is not left "to the whim of the administrator." Thomas, 534 U.S.

at 324 (quotation omitted). Our duty is not to determine whether

the ordinance meets ideal standards but whether it passes the

constitutional threshold. 

Plaintiffs, in addition to challenging the wording of the

ordinance on its face for alleged absence of fee-setting standards,

challenged the fee charged to Sullivan as being constitutionally

excessive as applied. The district court agreed. Here, we

believe, both appellants and the court are on firm ground. The

district court found that Augusta charged Sullivan $478.55 more

than the City's actual overtime payments to its officers for the

March 20, 2004 march. The City's defense on appeal (apart from

arguing the overcharge was so small as to be de minimis) is that it

was offset by other expenses not charged plaintiffs by the City,

such as the cost of Gregoire's time in processing Sullivan's permit

application. The City, however, never purported to include this
One way to guard against, or at least correct, a future 12

overcharge of this sort would be to include in the parade ordinance

a provision permitting some type of readily available

administrative review process. Augusta's ordinance allows a parade

permit applicant to appeal in writing to the City Council within

five days if "the permit is denied or modified," § 13-5(g). But

there is no explicit right to appeal from a fee overcharge. See

Forsyth, 505 U.S. at 133 (noting with disapproval that

administrator's fee decision was "unreviewable"); Thomas, 534 U.S.

at 23 (noting with approval fact that the ordinance was

"enforceable on review--first by appeal to the General

Superintendent of the Park District . . . ."). The absence of an

explicit review process for fee overcharge was not raised as a

possible constitutional defect by plaintiffs and hence is not a

matter for our consideration on appeal.

-43-

latter type of expenses in its calculation of traffic control

costs. There is, moreover, no evidence to show what such other

costs were. We agree with the district court that it was too late

in the day for these supposed costs to be plugged into the present

fee equation. A mistaken calculation of nearly $500 cannot in this

context be considered de minimis. Sullivan's overcharge was

contrary to the ordinance's language limiting the fee to $100 "plus

the costs of traffic control per city collective bargaining

agreement and clean up" (emphasis supplied). Amounts estimated 12

in advance but never actually charged to the City are not a part of

the "costs" of traffic control.

The Supreme Court has held that a government cannot

profit from imposing licensing or permit fees on the exercise of a

First Amendment right. Murdock v. Pennsylvania, 319 U.S. 105, 113-

14 (1993). Only fees that cover the administrative expenses of the

permit or license are permissible. Cox, 312 U.S. at 577 (approving
-44-

of a fee "limited to the purpose stated" of meeting "the expense

incident to the administration of the Act and to the maintenance of

public order in the matter licensed"); Citizens Action Group v.

Powers, 723 F.2d 1050, 1056 (2d Cir. 1983) ("Licensing fees used to

defray administrative expenses are permissible, but only to the

extent necessary for that purpose."); Fernandes v. Limmer, 663 F.2d

619, 633 (5th Cir. 1981) (invaliding a $6 per day fee for permit to

distribute religious literature in a municipal airport because of

failure to restrict use of fee receipts to expenses of licensing

process).

It is a violation of the First Amendment to have charged

Sullivan more than the actual administrative expenses of the

license, as set forth in the ordinance. Thus, although we find the

standards for the permit fee to be sufficiently definite to pass

constitutional muster, we uphold the district court's invalidation,

as applied, of the excessive amount charged to Sullivan.

b. Thirty-Day Notice Requirement

The plaintiffs argued successfully below that the parade

ordinance's requirement that applicants apply for a permit "[n]o

less than thirty (30) days prior to an intended parade, march or

other use of public ways within the City," coupled with

authorization to the City Manager to "allow a shorter time frame

for good cause shown" is not narrowly tailored and vests too broad

discretion in City officials. We agree. 
-45-

Notice periods restrict spontaneous free expression and

assembly rights safeguarded in the First Amendment. People may, in

some cases, wish to engage in street marches in quick response to

topical events. While even in such time-sensitive situations, a

municipality may require some short period of advance notice so as

to allow it time to take measures to provide for necessary traffic

control and other aspects of public safety, the period can be no

longer than necessary to meet the City's urgent and essential needs

of this type. American-Arab Anti-Discrimination Comm. v. City of

Dearborn, 418 F.3d 600, 605 (6th Cir. 2005) ("Any notice period is

a substantial inhibition on speech."). Advance notice requirements

that have been upheld by courts have most generally been of less

than a week. See, e.g., A Quaker Action Group v. Morton, 516 F.2d

717, 735 (D.C. Cir. 1975) (two-day advance notice requirement is

reasonable for use of National Park areas in District of Columbia

for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir.

1968) (two-day advance notice requirement for parade is

reasonable); Progressive Labor Party v. Lloyd, 487 F. Supp. 1054,

1059 (D. Mass. 1980) (three-day advance filing requirement for

parade permit approved in context of broader challenge); Jackson v.

Dobbs, 329 F. Supp. 287, 292 (N.D. Ga. 1970) (marchers must obtain

permit by 4 p.m. on day before the march), aff'd, 442 F.2d 928 (5th

Cir. 1971). Lengthy advance filing requirements for parade

permits, such as the present thirty days, have been struck down as
Citing Thomas v. Chicago Park Dist., 534 U.S. 316 (2002), the 13

City points out that the Court upheld a Chicago ordinance allowing

a total of up to 28 days for the Park District to grant or deny a

permit application. However, the facts are not comparable to the

present case, and the question of whether that time period was too

lengthy does not appear to have been directly at issue in Thomas,

id. at 323-34.

-46-

violative of the First Amendment. See American-Arab AntiDiscrimination Comm., 418 F.3d at 605-07 (holding that provision

requiring thirty days' notice is overbroad and is not saved by an

unwritten policy of waiving the provision); NAACP, Western Region

v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) ("[A]ll

available precedent suggests that a 20-day advance notice

requirement is overbroad."). Even five days has been held too long

in certain circumstances. See Douglas v. Brownell, 88 F.3d 1511,

1523-24 (8th Cir. 1996) (city's asserted goals of protecting

pedestrian and vehicular traffic and minimizing inconvenience to

the public does not justify five-day advance filing requirement for

any parade, defined as ten or more persons).

The City argues that its interest in having advance

notice of a parade in order to control traffic, prevent scheduling

conflicts, ensure adequate facilities are available, and assign

personnel to safely close the streets is narrowly tailored. The

City points out that its police force is relatively small, with

only thirty-four officers available for assignment to parade

details.13
-47-

But while those factors are entitled to due weight,

applicants' First Amendment rights have countervailing strength,

and these require the City in time sensitive situations to

accommodate proposed parades and marches much more quickly than

within thirty days. See Church of the American Knights of the Ku

Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir. 2003)

(noting "the reasonableness in general of requiring that a permit

to hold a demonstration on city streets or other public property be

sought in advance of the event," but observing that "the length of

the required period of advance notice is critical to its

reasonableness; and given . . . that political demonstrations are

often engendered by topical events, a very long period of advance

notice with no exception for spontaneous demonstrations

unreasonably limits free speech" (emphasis supplied)). Hence,

while practical considerations, such as the scheduling of

additional needed officers, will justify a short period of advance

notice, a blanket rule requiring the permit application to be made

in all cases no fewer than thirty days prior to an intended parade,

march, or other use of public ways is not narrowly tailored and so

violates the First Amendment.

While the above is clear, the City contends that its

thirty-day rule is not blanket and that it has made a sufficient

exception for the kind of spontaneous demonstrations mentioned

above, as "[t]he City Manager may allow a shorter time frame for
-48-

good cause shown" (emphasis supplied). The district court and

plaintiffs, however, insist that the "good cause" standard is too

vague and subjective to serve as a sufficient guide to the City

Manager's discretion, and that the exception is, therefore,

inadequate to establish the constitutionality of the advance notice

requirement.

We think the exception does not save the unduly lengthy

application period. If the "good cause" exception were attached to

a reasonably short application period, we might rule otherwise.

But as a device to cure a standard requirement of some thirty days,

it is inadequate, requiring, as it does, that all persons desiring

to seek a parade permit within some entitled shorter period

shoulder the burden of convincing the City Manager of the existence

of "good cause." Such a requirement curtails an applicant's free

speech rights, both because of the additional effort the applicant

need make in order to claim those rights and the risk that the City

Manager may not realize from the phrase "good cause" that many

applicants will be entitled, routinely, to a shortening of the

period.

It is true that Gregoire, in a supplemental affidavit,

stated, "[a]s long as the Police Department is physically able to

contact the officers and make the appropriate arrangements to close

the road and have the appropriate traffic officers on duty, the

City would not deny the permit based on the timing of the
Nothing herein, of course, prevents the City from merely 14

urging, as opposed to requiring, the submission of permit

applications, when possible, within some longer advance period like

thirty days, so long as it is clear that an applicant is bound only

by a shorter period, as discussed.

-49-

application." But the district court supportably ruled that

Gregoire's supplemental statement is not shown to constitute a

binding administrative interpretation or evince well-established

practice.14

We affirm the district court's conclusion that the

present thirty-day time period, as drafted, is unconstitutional for

the reasons we have stated.

c. Meet and Attempt to Agree Provision

The plaintiffs argued below that the parade ordinance's

requirement that "[w]ithin ten (10) days of applying for the

permit, as a condition to its issuance, the applicant must meet

with the Police Chief to discuss and attempt to agree on the

details of the route and other logistics," is not narrowly tailored

to serve significant governmental interests because (1) forcing an

in-person meeting with the police chief within ten days from

applying for the permit creates an unreasonable time barrier that

burdens unnecessarily a citizen seeking to promote a spontaneous or

prompt demonstration in response to a time-sensitive issue or

event; and (2) the details of the route may be an important part of

the applicant's expressive activity and thus the applicant should

not be required to negotiate with the government about the manner
-50-

of expression. Plaintiffs also argued that applicants who are

uncomfortable dealing directly with the police chief, such as an

applicant wishing to protest alleged civil rights abuses by police,

might be discouraged from applying for a parade ordinance

altogether. The district court concluded that "the in-person

meeting requirement chills substantially more speech than is

necessary to achieve the end [of promoting public health and

safety]."

The City argues on appeal that while the district court

agreed there is a significant governmental interest in gathering

information on parade logistics, it erroneously applied a least

intrusive means analysis consistent with strict scrutiny, rather

than the more relaxed narrow tailoring analysis appropriate in

intermediate scrutiny. Ward, 491 U.S. at 797-98. 

The City further contends that the most effective way to

arrange a parade route with the police department is to do so in

person and states that it has a policy of not rigidly adhering to

the requirement of a face-to-face meeting if it is not necessary to

serve the stated purposes of the ordinance. The plaintiffs reply

that there are no guidelines to suggest when such a waiver would be

granted and that the supposed policy of not rigidly adhering to the

meeting requirement (which the ordinance states is "a condition" to

issuance of the permit) is unsupported by any written criteria,

evidence of established practice, or specific precedent. 
-51-

While the question is close, we believe the provision is

overbroad in certain respects, especially given its unyielding

language (the applicant "must meet with the Police Chief" and do so

"as a condition to [the permit's] issuance"--the latter seeming to

rule out the police department's alleged policy of not always

requiring a face-to-face meeting). We agree with the City,

however, that meeting face-to-face with the Police Chief is not an

unreasonable way in most instances to work out a route, and that

this requirement, as a general rule, is constitutionally

acceptable, provided provision is made for reasonable exceptions.

For one, it would seem necessary to allow for meeting with the

Chief's delegate in case the chief is unavailable. For another, it

may be unduly burdensome for a parade organizer who lives, or whose

work takes him, some distance away from the City, to sit down with

the Chief or his delegate. And there is the possibility that some

activist leaders may experience the kind of acute discomfort that

plaintiffs hypothesize at sitting down with the Chief because of

the nature of their cause. All of these concerns, to a greater or

lesser degree, suggest that in this age of e-mail, express mail,

fax and telephone, requiring, inflexibly, meeting with the Chief in

person within the specified ten-day period as a mandatory condition

of issuance of the permit burdens substantially more speech than is

necessary. Ward, 491 U.S. at 799.
-52-

The City can address the problem in various ways. One

way, of course, is simply to provide some acceptable alternatives

to meeting with the Chief. Another would be to provide that an

applicant may, if good cause existed, request an alternative, and

the Chief or his delegate should allow the request if reasonable

and practicable to do so. To take the above concerns into account

is not equivalent to applying the inappropriate least-restrictive

means test, see Ward, 491 U.S. at 797-98, but rather applies the

principle that a regulation of this type may not burden

substantially more speech than is necessary to further the

government's legitimate interests. Ward, 491 U.S. at 799. Hence,

one or more alternatives to a face-to-face meeting with the Chief

need to be provided. Lacking such alternative or alternatives, the

meeting provision as it currently stands is overbroad.

d. Absence of Waiver of Fees for Indigent

The plaintiffs argued below that the parade ordinance is

unconstitutional on its face and as applied because it does not

provide any exception or reduction to the potentially large permit

fee for citizens or groups for whom the fee causes a substantial

hardship. They argued successfully to the district court that the

lack of a financial exemption leaves those citizens and groups

unable to pay the fee without "open, ample alternatives for

communication." Where, as here, however, there are ample

alternative forums for speech, we see insufficient justification
-53-

for the district court's ruling that the Constitution mandates an

indigency exception, in effect forcing general taxpayers to support

financially a particular organizer's event.

i. District Court's Analysis

The district court relied on the Supreme Court's

assertion in Murdock, 319 U.S. at 111, that "[f]reedom of speech,

freedom of press, freedom of religion are available to all, not

merely to those who can pay their own way." The district court

observed that in cases where bonds and insurance premiums are

required for a parade permit, courts have found that the

requirements imposed financial demands that burdened the expressive

activities of those with insufficient financial means more than

necessary to achieve the governmental interest. The district court

asked whether the sidewalks and parks of a city represent a

reasonable alternative to the streets and concluded, based on the

testimony of a sociologist called as an expert witness by the

plaintiffs, that sidewalks have less symbolic significance than do

streets and are inadequate as alternatives for logistical reasons.

Plaintiffs' expert witness was an assistant professor of

sociology at Bowdoin College, who testified that sidewalks were not

a satisfactory alternative location for parades. He testified,

inter alia, that street marches attract more attention as they are

more likely to inconvenience the general public by interrupting

traffic and disrupting routines. He further testified that street
-54-

marches also have positive connotations because of the American

tradition of successful protest marches, such as the 1963 March on

Washington. By contrast, he thought, sidewalk marches have less

symbolic significance and provide logistical challenges because

sidewalks are narrower and prevent the carrying of large banners.

The district court also expressed concern that Augusta's

parade ordinance arguably requires the securing of permits for

sidewalk marches as well as for street marches, despite the City's

insistence that permits were not needed for sidewalk marches. The

language of the ordinance refers to the "use of public ways within

the city," which could, the district court said, easily be

construed to include sidewalks.

ii. Analysis

We disagree with the district court's conclusion, and

that of our dissenting colleague, Judge Lipez, that sidewalk

marches and other alternatives to street marches are so lacking as

to necessitate an indigency exception to the parade permit fee. We

also find no reason to reject the City's insistence that sidewalk

parades do not require permits under Augusta's parade ordinance.

In a case not unlike the present, the Sixth Circuit similarly

concluded that an indigency exemption or waiver was not required

for a parade ordinance where, as here, the sidewalks and parks of

the city were available without charge for related speech

activities. Stonewall, 931 F.2d at 1137. The Sixth Circuit
The district court cited Cent. Florida Nuclear Freeze 15

Campaign v. Walsh, 774 F.2d 1515, 1523-24 (11th Cir. 1985), which

held a city ordinance unconstitutional in part because there was no

provision exempting indigents from paying the cost for police

protection, but that case also found that "alternative means of

exercising First Amendment rights" were not available, which is not

the case here. Invisible Empire of the Knights of the Ku Klux Klan

v. Town of Thurmont, 700 F. Supp. 281, 286 (D. Md. 1988), which

found that the requirement of reimbursing the town for police

protection and cleanup was unconstitutional because it was not

"waived or modified for indigents" relied on Walsh for its holding.

Both cases were decided before Forsyth, which emphasized that a

license fee that was more than "nominal" was not inherently

unconstitutional. 505 U.S. at 136-7. Wilson ex rel U.S.

Nationalist Party v. Castle, 1993 WL 276959 at *4 (E.D. Pa. July

15, 1993), holding that an insurance requirement was not narrowly

tailored as applied to persons "who are financially and otherwise

unable to obtain coverage," involved an insurance requirement,

which implicates issues of viewpoint discrimination as an insurance

company may charge more depending on the group being covered, and

a strict scrutiny analysis not applicable here. Likewise, in

Invisible Empire Knights of the Ku Klux Klan v. City of West Haven,

600 F. Supp. 1427, 1435 (D. Conn. 1985), holding a bond requirement

unconstitutional as applied to those who could demonstrate their

inability to obtain a bond, the case involved the potential of a

viewpoint discriminatory "heckler's veto" in the application for a

bond and thus implicates issues not at play here. Plaintiffs

additionally rely on E. Conn. Citizens Action Group, 723 F.2d at

1056-57, which was also decided before Forsyth and held that the

-55-

stated, "Because we believe the availability of the sidewalks and

parks provides a constitutionally acceptable alternative for

indigent paraders, we find that the lack of an indigency exception

does not render the ordinance constitutionally invalid." Id. We

agree with that analysis and find the situation in Augusta

analogous. Plaintiffs have cited several circuit and district

court cases in support of their contrary position, but these, of

course, are not binding upon us and are, moreover, largely

distinguishable.15
defendant government agency could not charge an administrative fee

for the sole purpose of deterring frivolous requests but rather

could charge the fee only to the extent it could demonstrate "its

necessity as a means of offsetting expenses associated with

processing applications for access to property under its control."

Likewise, the plaintiffs' reliance on Lubin v. Panish, 415 U.S.

709, 718 (1974) is inapplicable here where the Court found that "in

the absence of reasonable alternative means of ballot access, a

State may not, consistent with constitutional standards, require

from an indigent candidate filing fees he cannot pay." The

plaintiffs here have alternate means of expressing their views in

the city of Augusta. The case perhaps most helpful to the

plaintiffs is Van Arnam v. GSA, 332 F. Supp. 2d 376, 406 (D. Mass.

2004), where the district court, relying on several of the above

cases, held unconstitutional an indemnification/hold harmless

requirement on the grounds that the absence of an indigency waiver

suppressed more speech than was necessary and thus was not narrowly

tailored. 332 F. Supp. 2d at 406. The analysis did not thus turn

on the availability of alternative means of expression (which the

district court had found were available). To the extent that the

two cases are comparable, we disagree with the narrow tailoring

conclusion in Van Arnam.

-56-

1. Ample Alternatives

Augusta argues that it provides numerous alternative

avenues of communication to persons unable to afford a parade

permit, including (a) use of sidewalks, (b) gatherings on state

land such as the statehouse steps (Augusta is the state capital),

(c) hand-held banners or signs, (d) leafleting, (e) vehicular

processions, and (f) mass outdoor gatherings of fewer than 200

people. None of these alternatives requires payment of a fee, and

only one -- a rally on the state house steps -- requires a permit,

which is freely obtained.

Although the district court acknowledged the alternatives

offered by the City, it believed the sidewalks -- an alternative
-57-

especially emphasized -- were insufficient because they are too

narrow and marginal as compared with main streets, thereby perhaps

dampening the number of protestors able to march and the amount of

attention attracted. But while a sidewalk march might, for these

and other reasons, seem less appealing to some protestors than a

street march, it nonetheless provides a prominent route along major

thoroughfares for dissemination of a message. As Gregoire stated

in his affidavit, several groups have used sidewalk marches to

engage in expressive activities, indicating the availability of the

sidewalk alternative and its appeal to some persons.

Further, as in Stonewall, the availability of gathering

places for protests, here including especially the state house

steps, with its potential for media coverage, demonstrates the

ample range of speech alternatives in the City. "While the First

Amendment does not guarantee the right to employ every conceivable

method of communication at all times and in all places, a

restriction on expressive activity may be invalid if the remaining

modes of communication are inadequate," Members of City Council of

City of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789, 812

(1984) (citation omitted), but an ordinance does not fail for lack

of adequate alternatives so long as there are avenues for "the

general dissemination of a message." Frisby, 487 U.S. at 483-84

(ban on picketing in public forum upheld where alternatives

included entering neighborhoods alone or in groups, going door-to-
-58-

door, distributing literature through the mails, or contacting

residents by telephone). 

This Circuit has upheld in other contexts alternative

means of communication despite diminution in the quantity of

speech, a ban on a preferred method of communication, and a

reduction in the potential audience. Globe Newspaper Co. v. Beacon

Hill Architectural Comm'n, 100 F.3d 175, 192-94 (1st Cir. 1996)

(holding that a ban on newspaper boxes in historic district met the

intermediate scrutiny test in that it was narrowly tailored and

newspapers had ample alternative channels of communication in the

same area); see also D.H.L. Assocs., Inc. v. O'Gorman, 199 F.3d 50,

59 (1st Cir. 1999) ("The essence of this question is not 'whether

a degree of curtailment' of speech exists, but rather 'whether the

remaining communicative avenues are adequate.'" (quoting Nat'l

Amusements, 43 F.3d 731, 745 (1st Cir. 1995)). In upholding a ban

on newspaper boxes in the historic Beacon Hill neighborhood of

Boston, we concluded, "The First Amendment does not guarantee a

right to the most cost-effective means of distribution or the rentfree use of public property." Globe Newspaper Co., 100 F.3d at

193.

The plaintiffs have access to numerous speech

alternatives, making a fee waiver to march in the streets

unnecessary. Before ending the inquiry, however, we address the
-59-

district court's reference to the possibility that sidewalks might

themselves be subject to a parade permit requirement.

2. Free Availability of Sidewalks

The district court's conclusion that sidewalk marches "at

least arguably" may be subject to permitting (and thus subject to

attendant fees) is not unreasonable based simply on the language of

the ordinance, but it contradicts the overwhelming evidence in the

record that Augusta does not interpret, and has not interpreted,

its own parade ordinance in this manner. Gregoire testified in his

March 2004 affidavit that sidewalk marches are free and require no

permit. In his 2005 supplemental affidavit, he said he had

informed Sullivan of that fact in anticipation of the planned March

2004 protest and offered to assist his group with a free sidewalk

march prior to the start of the instant litigation. Though certain

other of Gregoire's proffers of limiting constructions regarding

other provisions of the parade ordinance, supra, came too late or

were too vague to be considered authoritative interpretations, his

interpretation of the sidewalk marches is one apparently followed

by the City from before the litigation. Gregoire's supplemental

affidavit in 2005 listed seven permit-fee and fee-free sidewalk

marches which had taken place in the previous year, indicating a

well-established practice of allowing sidewalk marches without

requiring a permit or a fee. We accordingly disagree with the

district court's suggestion that sidewalk marches might be excluded
-60-

as genuine alternatives for persons unable to afford a permit to

march on city streets.

It is obviously not simple to select out those people and

causes whose indigency is such as to warrant giving them, as it

were, a free pass. Such provisions for indigency exceptions do

exist in the ordinances of some cities, e.g., Pittsburgh,

Minneapolis, and Los Angeles. Whether a particular city, like

Augusta, wishes to enact and deal with the administration of such

an exception is up to it and its government. Our conclusion is

simply that there are sufficient alternatives for speech as not to

require, constitutionally, that Augusta provide an indigency

exception here.

In all events, the Supreme Court has addressed the

question of parade permit fees in some detail in Forsyth. It has

not suggested that an indigency exception is constitutionally

required. If one is to be created under the aegis of the First

Amendment, surely that is for the Supreme Court to decide in the

first instance. There is a vast number of areas in which a lack of

funds may disadvantage an individual, and a constitutional

determination that in civil matters an indigent need not pay costs

ordinarily imposed on others is a matter to be approached with some

caution.
-61-

e. Abstention and Saving Constructions

The district court observed that it did not take lightly

its conclusion that the ordinances at issue here are

unconstitutional. It dismissed the possibility of abstention or

certification to the state court, however, because the resolution

is not "fairly subject to an interpretation which will render

unnecessary or substantially modify the federal constitutional

question." Bd. of Airport Comm'rs v. Jews for Jesus, Inc., 482

U.S. 569, 575-76 (1989). A district court's abstention ruling is

reviewed on appeal for abuse of discretion. Sheerbonnet, Ltd. v.

American Express Bank, 17 F.3d 46, 48 (2d Cir. 1994). The court

did not abuse its discretion here in declining to abstain or

certify any of the issues to the state court.

D. Conclusion

We affirm the district court's determination that

sections 13-5(a), to the extent that it requires thirty days'

advance notice, and 13-5(c), to the extent that it requires a

permit applicant to meet with the Police Chief, are

unconstitutional; and reverse the district court's invalidation

(for grant of excessive discretion) of 13-5(e), the fee provision.

We affirm, however, the district court's holding that the $478.55

fee overcharge to Sullivan was unconstitutional. We reverse the

district court's determination that plaintiffs had standing to

challenge the MOGO and that the absence of an indigency requirement
-62-

in section 13-5(e) is unconstitutional. We vacate the district

court's rulings that provisions of the MOGO are unconstitutional.

Each side shall bear its own costs.

- Dissenting Opinion Follows -
-63-

LIPEZ, Circuit Judge, dissenting in part. I agree with

Judge Campbell's excellent opinion in all but one respect. Because

there is a world of difference between marching down the main

street of a city and being confined to a sidewalk or park to

communicate one's message, I do not agree that the City's parade

ordinance complies with the First Amendment without an indigency

exception. All citizens, not only those who can afford the cost of

traffic control, have a right to express their views on matters of

public concern in the most powerful of our nation's traditional

public fora. See Murdock v. Pennsylvania, 319 U.S. 105, 111 (1943)

("Freedom of speech . . . [is] available to all, not merely to

those who can pay their own way."). Therefore, I respectfully

dissent from that portion of the majority opinion allowing Augusta

to impose parade permit fees without regard to an applicant's

ability to pay.

I.

A. Fundamental Rights and Indigents

The right to free speech embodied in the First Amendment

is a fundamental constitutional guarantee, and access to public

spaces to speak on matters of public concern has long been a

concomitant privilege of the right of expression. The Supreme

Court has recognized that use of the streets and other public

places has

from ancient times, been a part of the

privileges, immunities, rights, and liberties
-64-

of citizens. . . . [S]treets and parks . . .

have immemorially been held in trust for the

use of the public and, time out of mind, have

been used for purposes of assembly,

communicating thoughts between citizens, and

discussing public questions.

Hague v. CIO, 307 U.S. 496, 515 (1939) (opinion of Roberts, J.);

see also Hurley v. Irish-American Gay, Lesbian and Bisexual Group

of Boston, 515 U.S. 557, 579 (1995) ("Having availed itself of the

public thoroughfares 'for purposes of assembly [and] communicating

thoughts between citizens,' the [petitioner] is engaged in a use of

the streets that has 'from ancient times, been a part of the

privileges, immunities, rights, and liberties of citizens.'")

(quoting Hague, 307 U.S. at 515); Perry Educ. Ass'n v. Perry Local

Educators' Ass'n, 460 U.S. 37, 45 (1983) (noting that streets and

parks are "[a]t one end of the spectrum" among "places which by

long tradition or by government fiat have been devoted to assembly

and debate").

In this case, plaintiffs claim that their access to the

"public streets, the quintessential traditional public fora," Int'l

Soc. for Krishna Consciousness v. Lee, 505 U.S. 672, 676 (1992)

(citation omitted), may not be denied based on their inability to

pay the required fees. In many contexts, disparities attributable

to wealth are not of constitutional significance. See Kadrmas v.

Dickinson Pub. Schs., 487 U.S. 450, 458 (1988) ("We have previously

rejected the suggestion that statutes having different effects on

the wealthy and the poor should on that account alone be subjected
-65-

to strict equal protection scrutiny."). Nevertheless, in multiple

settings involving fundamental rights, the Supreme Court has held

that it is unconstitutional to deny access to indigents. See,

e.g., M.L.B. v. S.L.J., 519 U.S. 102, 114-16, 123-24 & n.14 (1996)

(striking down Mississippi statute conditioning appeal of order

terminating parental rights on advance payment of court fees and

noting that "fee requirements ordinarily are examined only for

rationality" but that exceptions have been made under equal

protection principles when a "fundamental interest [is] at stake");

Lubin v. Panish, 415 U.S. 709, 718 (1974) ("[I]n the absence of

reasonable alternative means of ballot access, a State may not,

consistent with constitutional standards, require from an indigent

candidate filing fees he cannot pay."); Boddie v. Connecticut, 401

U.S. 371, 374 (1971) (relying on due process principles to hold

that the State may not deny a divorce to a couple based on

inability to pay court costs); Griffin v. Illinois, 351 U.S. 12,

17-19 (1956) (relying on due process and equal protection

principles to invalidate a state requirement that a defendant pay

for a trial transcript as a prerequisite to appeal and holding that

an indigent defendant has an equal right of access to appellate

review of a conviction where a State generally affords such

review); cf. Kadrmas, 487 U.S. at 465 (rejecting plaintiffs'

claimed entitlement to free school bus transportation because "the
The dual rationale arises in the judicial access cases, 16

where the due process concern relates to the "essential fairness of

the state-ordered proceedings anterior to adverse state action" and

the equal protection concern "relates to the legitimacy of fencing

out would-be appellants based solely on their inability to pay core

costs." M.L.B., 519 U.S. at 120. However, Justice Ginsburg noted

in M.L.B. that most of the decisions used an equal protection

framework. Id.

-66-

statute challenged in this case discriminates against no suspect

class and interferes with no fundamental right").

In concluding that some degree of public subsidy is

necessary in these contexts, the Court relied on equal protection

or due process principles, or both, and applied heightened review 16

because of the fundamental interests at stake. See M.L.B., 519

U.S. at 115-16 (noting that, "[a]bsent a fundamental interest or

classification attracting heightened scrutiny, . . . the applicable

equal protection standard 'is that of rational justification'")

(quoting Ortwein v. Schwab, 410 U.S. 656, 660 (1973) (per curiam)).

Under such heightened review, "the State's need for revenue to

offset costs" was insufficient justification for denying equal

access to individuals of limited economic means. See M.L.B., 519

U.S. at 123.

The Court's discussion in M.L.B. sheds light on the

nature of the rights triggering heightened scrutiny of government

fees. There, the respondents had asserted that prior case law

established that the government "'need not provide funds so that

people can exercise even fundamental rights'" and argued that a
Among the cases cited were Regan v. Taxation with 17

Representation of Wash., 461 U.S. 540 (1983), which rejected a

nonprofit organization's claims, on First Amendment and equal

protection grounds, that they were entitled to receive tax

deductible contributions to support their lobbying activity, and

Harris v. McRae, 448 U.S. 297 (1980), which held that women seeking

medically necessary abortions were not entitled to Medicaid

funding.

-67-

subsidy for the M.L.B. parent would conflict with cases

"recognizing that the Constitution 'generally confer[s] no

affirmative right to governmental aid, even where such aid may be

necessary to secure life, liberty, or property interests of which

the government itself may not deprive the individual.'" 519 U.S.

at 124-25 (citation omitted). In response, the Supreme Court 17

distinguished the cited cases as involving efforts to obtain "state

aid to subsidize their privately initiated action or to alleviate

the consequences of differences in economic circumstances that

existed apart from state action." Id. at 125.

The plaintiffs here neither claim entitlement to benefits

the state has made available in limited circumstances – such as tax

breaks or Medicaid funding – nor otherwise invoke an "affirmative

right" to governmental assistance to meet personal needs or private

concerns. To the contrary, they invoke an explicit constitutional

right to speak in a forum that the government holds in trust for

just such a purpose. Their claim to this forum implicates core

First Amendment values. The plaintiffs sought to speak on matters

of public concern relating to national and international affairs.
-68-

"[T]he Court has frequently reaffirmed that speech on public issues

occupies the 'highest rung of the hierarchy of First Amendment

values,' and is entitled to special protection," Connick v. Myers,

461 U.S. 138, 145 (1983) (quoting NAACP v. Claiborne Hardware Co.,

458 U.S. 886, 913 (1982); Carey v. Brown, 447 U.S. 455, 467

(1980)). The First Amendment's explicit right "peaceably to

assemble" lends further weight to their interest in a public

gathering to address common concerns. See, e.g., Cox v. New

Hampshire, 312 U.S. 569, 574 (1941) (noting that regulation of use

of the streets implicates "the right of assembly and the

opportunities for the communication of thought and the discussion

of public questions").

Moreover, public speech is not a self-centered pursuit;

it is speech for "the public." Any assumption that the speaker is

the primary beneficiary when he uses a public forum is incorrect:

This assumption ignores the benefit of the

speaker's activities for the entire society.

His activities are part of the process by

which a democratic society makes informed

decisions. He speaks so that society can

listen and decide for itself.

David Goldberger, A Reconsideration of Cox v. New Hampshire: Can

Demonstrators Be Required to Pay the Costs of Using America's

Public Forums?, 62 Tex. L. Rev. 403, 413 (1983) (hereinafter

"Goldberger"). An individual who seeks a permit to disseminate a

message about matters of public concern in a traditional public

forum is thus exerting free speech rights that not only are
-69-

explicitly promised by the Constitution but also are of value to

the community as a whole. Where such communal benefits exist, the

government's countervailing interest in recouping costs solely from

the individual is weaker.

First Amendment rights are not absolute, however, and

indigency does not alter that principle. As the majority explains,

the government may impose reasonable time, place and manner

restrictions on the exercise of First Amendment rights, "provided

the restrictions 'are justified without reference to the content of

the regulated speech, that they are narrowly tailored to serve a

significant governmental interest, and that they leave open ample

alternative channels for communication of the information.'" Ward

v. Rock Against Racism, 491 U.S. 781, 791 (1989) (quoting Clark v.

Community for Creative Non-Violence, 468 U.S. 288, 293 (1984)); see

also City Council of Los Angeles v. Taxpayers for Vincent, 466 U.S.

789, 812 (1984) ("[A] restriction on expressive activity may be

invalid if the remaining modes of communication are inadequate.");

Globe Newspaper Co. v. Beacon Hill Architectural Comm'n, 100 F.3d

175, 186 (1st Cir. 1996). I therefore must consider whether the

fee requirement in the parade ordinance satisfies this three-part

inquiry.

The first prong is easily met here. It is undisputed

that Augusta's parade ordinance is content neutral. On its face,

the ordinance also is narrowly tailored to serve the government's
 My analysis considers only speech on matters of public 18

concern, the type of expression for which the plaintiffs in this

case sought parade permits. 

-70-

recognized interest in recovering the costs of administration,

traffic-control and clean-up associated with parades held on public

streets. See Forsyth County v. Nationalist Movement, 505 U.S. 123,

136 (1992) ("[R]aising revenue for police services . . .

undoubtedly is an important government responsibility . . . .");

Cox, 312 U.S. at 576 (approving fees limited to administrative

expenses and "'to the maintenance of public order in the matter

licensed'") (quoting state court's construction of the challenged

statute). As discussed above, however, such fees are subject to

heightened review in the context of First Amendment rights. See

M.L.B., 519 U.S. at 115-16; Casey v. City of Newport, 308 F.3d 106,

110-11 (1st Cir. 2002). They cannot survive such scrutiny if

individuals unable to pay the fees would be denied an adequate

public forum for speaking on issues of public importance – the

concern addressed by prong three of the time, place and manner

inquiry.

Plaintiffs' claim that they are constitutionally entitled

to a fee waiver thus turns on whether the City offers an adequate

alternative to a street march for disseminating a message that

concerns a public issue. As I shall explain, I share the district 18

court's view that the options proffered by the City fall short of
 The majority opinion notes that, despite the Supreme Court's 19

consideration of parade permits in some detail in Forsyth, the

Court did not there "suggest[] that an indigency exception is

constitutionally required." The indigency issue was not before the

Court in Forsyth. The Court granted certiorari in Forsyth "to

resolve a conflict among the Courts of Appeals concerning the

constitutionality of charging a fee for a speaker in a public

forum." 505 U.S. at 129. The five justices in the Forsyth

majority bypassed the question of the permissible size of a fee,

concluding that the challenged ordinance was invalid because it

lacked procedural safeguards and tied the fee to the content of

speech. Id. at 137.

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the constitutional standard. See Sullivan v. City of Augusta, 406

F. Supp. 2d 92, 126 (D. Me. 2005).19

B. The Adequacy of the Available Alternatives

In finding that Augusta offered plaintiffs no adequate

alternatives to a street march, the district court concluded that

the parade ordinance arguably embraced sidewalks as well as

streets. I agree with the majority that the ordinance should not

be read in that manner. The City's past practice sufficiently

demonstrates that the ordinance does not extend to sidewalks and

that sidewalks are thus an available free alternative to the

streets, along with parks and the Statehouse steps. The question

thus becomes whether streets provide such a unique forum for the

communication of views that other public fora, including sidewalks,

cannot be deemed adequate alternatives.

That assessment necessarily requires an examination of

the speaker's objectives – both in terms of the message she wishes

to communicate and the audience she seeks to reach. Still, the
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match between the desired forum and a substitute need not be

perfect: "'[T]he lens of inquiry must focus not on whether a

degree of curtailment exists, but on whether the remaining

communicative avenues are adequate.'" Globe Newspaper, 100 F.3d at

193 (quoting Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d 731,

745 (1st Cir. 1995)).

In assessing adequacy, we have been particularly

sensitive to the ability of a party to disseminate its message to

the same general audience despite the restrictions at issue. In

Globe Newspaper, we considered the validity of a ban on newsracks

in the Beacon Hill Historical District of Boston. 100 F.3d at 178.

We noted that the regulation did not prevent the plaintiff

newspapers from selling their publications in the District by means

of street vendors, thereby accomplishing their objective "in the

very public forum – the District's sidewalks – from which the

newsracks are banned." 100 F.3d at 193.

The Supreme Court reached a similar conclusion in City

Council of Los Angeles v. Taxpayers for Vincent, 466 U.S. 789

(1984), which involved a challenge to an ordinance banning all

posted signs, including political campaign posters, in the City of

Los Angeles. The Court found that the ban did "not affect any

individual's freedom to exercise the right to speak and to

distribute literature in the same place where the posting of signs

. . . is prohibited." Id. at 812. Similarly, in National
 Plaintiffs' Statement of Material Facts reported that 20

Sullivan sought to participate in the march "as a way of expressing

his opposition to the war in Iraq and as a way of publicly

advocating the need for affordable health care, veterans' rights

and benefits, and living wage jobs, and as a way of associating

himself publicly with individuals and groups who share his views."

According to the Statement, Dansinger sought to march "as a way of

-73-

Amusements, we upheld a town bylaw prohibiting the showing of

movies between 1 a.m. and 6 a.m. despite the appellant's assertion

that the regulation "foreclose[d] the opportunity to communicate

its message to a distinct segment of the movie-going public" –

those who would attend only a midnight showing. 43 F.3d at 745.

Although we acknowledged that the bylaw would "diminish[] the total

quantity of appellant's speech in some measure, and simultaneously

curtail[] its opportunity to communicate" with patrons who

preferred midnight shows, we concluded that "thwarting such an

idiosyncratic preference cannot be equated with a denial of

adequate avenues of communication." Id. In each of these cases,

while some potential recipients of the message may have been

missed, the message could still reach the intended audience.

In this case, plaintiff Sullivan sought a parade permit

in February 2004 on behalf of a group known as the March for Truth

Coalition, which advocates the "worldwide end of war and empirebuilding" as well as social and economic reform. Plaintiff

Dansinger sought a permit to hold a peace march and rally in

conjunction with the Million Worker March to be held in Washington,

D.C., in October 2004. Both proposed parades were thus aimed at 20
expressing his opposition to the war in Iraq, supporting the

Million Worker march and publicly advocating the need for economic

justice in America, and to associate with others to advocate

effectively for those goals."

-74-

shaping public attitudes about matters of public policy – the type

of political speech that long has been associated with street

marches.

Of the available free alternatives, it is easy to

conclude that parks and similar fixed sites where speakers may

congregate are not adequate alternative locations for achieving the

objectives of street marches. A stationary gathering whose message

will be delivered to only the finite group of non-participants who

also happen to be in that spot or travel by it is considerably

different from a march that inevitably will come into contact with

waves of outsiders. A march down Main Street will display the

message to pedestrians, business owners, customers, and even

motorists who encounter the periphery of the procession while being

re-routed. Although television and newspaper coverage could

enlarge the audience for a stationary protest, that possibility

depends on the editorial judgments of the media, and any message

actually disseminated would be both limited in scope and lacking

the immediacy of personal contact. If plaintiffs' objective had

been to demand that state legislators take particular action on

pending legislation, the City's assertion that the Statehouse steps

were an adequate alternative would have more force. Plaintiffs,
-75-

however, sought to persuade as many members of the public as they

could reach to join their efforts to advocate for changes in public

policy.

In finding that the City could not constitutionally

"block indigents from using the public streets to convey their

message," the district court relied on the opinion of plaintiffs'

expert, Joe H. Bandy, III, a sociology professor at Bowdoin College

with a special expertise in the study of social movements. See

Sullivan, 406 F. Supp. 2d at 124-25. Professor Bandy confirmed the

superiority of "moving speech" for communicating a political

message:

With a march that moves through public

streets, the demonstrators can bring their

protest message to a variety of different

audiences, audiences that are not a part of

the activists' direct constituency but the

broader public. . . . [B]y protesting through

a format that moves through different public

spaces, a march is more likely to gain the

attention of the media and political leaders

than if the demonstration were localized in

one area that did not inconvenience the

general public in some way.

Bandy Declaration, 1/20/05, at 3, App. at 111.

While large gatherings in public places can sometimes

attract similar attention, the force of a message conveyed by the

more typical small protest group will be much greater if the group

is marching down the city's main thoroughfares, displacing other

people's daily routines, than if it is confined to a park or the

Statehouse steps. See Gary Wiseman, Note, Paying for Free Speech:
 Mass marches alongside well traveled roads also have a long 21

history and can have dramatic communicative effect. See, e.g.,

Williams v. Wallace, 240 F. Supp. 100, 104-05, 107-08 (D.C. Ala.

1965) (describing disrupted Selma-to-Montgomery voting rights march

on March 7, 1965, and proposal for a subsequent march later that

month).

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The Continuing Validity of Cox v. New Hampshire, 64 Wash. U.L.Q.

985, 988 n.16 (1986) (hereinafter "Wiseman") ("In the absence of

spectators, even the most exciting demonstration lacks force.").

Therefore, when a speaker seeks to motivate the general public

about a matter of public policy, the opportunity to communicate

from a fixed location will rarely be an adequate substitute for a

march down city streets.

Sidewalks, however, present a closer question. Like the

street march, a sidewalk march provides access to a constantly

changing audience that will likely include many of the same

individuals who would observe a procession moving down the middle

of the street. Although the City notes that a sidewalk procession

would be viewed by more motorists than a street march because the

streets would be open and cars would be able to travel directly

past the procession, that theoretical advantage is illusory. Such

motorists will of necessity be focused on traffic conditions and

will be unable to give other than incidental attention to the

parade.21

Moreover, it is not only the size of the crowd on the

sidelines that affects the message being conveyed. If a march is
-77-

confined to the sidewalks, the perception that space is limited,

and that fewer marchers can therefore be accommodated, will reduce

the number of participants. The district court reasonably accepted

appellees' assertion that safety concerns "may deter some would-be

participants" from joining a sidewalk march because of the need to

cross traffic and the lesser police presence. Sullivan, 406 F.

Supp. 2d at 125. Indeed, such concerns are likely to suppress the

number of spectators as well, with shoppers and others altering

their routes to avoid the sidewalk congestion. The resulting

reduction in the number of marchers, as well as spectators, dilutes

the message that is delivered:

[B]y reducing the number of participants or

spectators, a speaker forfeits other

advantages of size. A mass demonstration

"conveys an image of power to bystanders and

participants alike, reinforces the group's

commitment to its cause, . . . and appears to

circumvent the elite's power to control mass

communication."

Wiseman, 64 Wash. U.L.Q. at 988 n.16 (quoting Stanley Ingber, The

Marketplace of Ideas: A Legitimizing Myth, 1984 Duke L.J. 1, 41

n.7); see also Eric Neisser, Charging for Free Speech: User Fees

and Insurance in the Marketplace of Ideas, 74 Geo. L.J. 257, 297

(1985) (hereinafter "Neisser") ("[T]hose who hold unpopular,

unknown, or unrepresented views can express the strength of their

position (when allowed in the public marketplace of ideas) only

through their numbers.").
-78-

Street marches have the distinct advantage of allowing

more participants to march side-by-side, giving the demonstration

– and its message – a more commanding presence. Professor Bandy

observed that the narrowness of sidewalks can affect both the

logistics of a march and the strength of the message: "[A]s a

matter of logistics, having a large number of people file in a very

narrow pathway would make a more snake-like procession rather than

a mass rally procession. This narrowing of the demonstration would

likely dampen the message because the demonstration would not look

as large to passers by or the media." See Bandy Declaration at 5,

App. at 113.

The large signs and banners we have come to expect as

part of a parade cannot be displayed across the narrower width of

a sidewalk, and the logistical difficulty of carrying such

oversized messages front-to-back along the edge of the sidewalk

undoubtedly would discourage their use. No matter how long the

procession, a small band of protesters carrying small signs simply

does not communicate the same dramatic image of massive support as

a crowd walking six or eight abreast carrying street-wide signs.

Thus, excluding speakers from the streets does not simply relocate

their message. The strength of the message is measurably
 From a case-specific perspective, the sidewalk option here 22

was particularly limiting. Deputy Police Chief Gregoire stated in

his deposition that the sidewalks along the appellees' proposed

parade route had room for two, perhaps three, people of average

size to walk side-by-side. 

-79-

diminished by the perception that it lacks support from the

"masses." See Bandy Declaration at 5, App. at 113. 

22

While the numbers – both real and perceived – are

important, they are not the only relevant factor. The tradition of

a parade as a public event means that a street march commands our

attention in a way that a sidewalk procession does not. As a

community, we look forward to parades, we are attentive to them,

and we interrupt our everyday lives to accommodate them. A parade

is a significant community event – whether its purpose is to

recognize Irish heritage on St. Patrick's Day, to celebrate a

sports championship, or to express gratitude to soldiers on

Veterans Day. A marcher confined to the sidewalk is thus denied

the public forum that we historically have used to express our

collective sentiment. See Timothy Zick, Space, Place, and Speech:

The Expressive Topography, 74 Geo. Wash. L. Rev. 439, 460 (2006)

(hereinafter "Zick") ("In terms of communicative behavior, place is

as critical to expressive experience as voice, sight, and auditory

function.").

Moreover, in recent decades, streets have acquired

powerful symbolism as a forum for protest and political expression.

The images of 1960s civil rights activists marching through the
-80-

streets remain vivid, and those marches continue to inspire the

current generation of street protests on matters of global

importance – including racial injustice, war and peace, and the

inattentiveness of a community to its poor. See, e.g., Iraq Vets

Lead Syracuse March, People's Weekly World, Oct. 11, 2007

(describing September 2007 march through streets of Syracuse, N.Y.,

by more than 2,500 peace activists, including members of Fort Drum

chapter of Iraq Veterans Against the War); Rallies Support Jena

Teens, San Jose Mercury News, Sept. 21, 2007 (from New York Times

news service) (describing a "slow-moving march that filled streets,

spilled onto sidewalks and stretched for miles," with more than

10,000 demonstrators, protesting the treatment of six black

Louisiana teenagers arrested in the beating of a white classmate);

Janitors to March for Pay Increases, San Mateo County Times, June

14, 2007 (describing planned street march by "[t]housands of

Silicon Valley janitors" from East Palo Alto to "the heart of Palo

Alto's affluent downtown" as part of International Justice for

Janitors Day); Demonstrators to Turn Out for Immigration Reform,

Denver Rocky Mountain News, May 1, 2007 (reporting that "Denver and

other cities across the nation will host another round of marches

today to demonstrate that the campaign for immigration reform is

still under way"). Indeed, "taking it to the streets" is itself

part of the activist message, i.e., that ordinary people have the

power to take over the public way in their pursuit of social
-81-

change. See Zick, 74 Geo. Wash. L. Rev. at 471 ("Parades,

protests, and demonstrations are . . . akin to temporary

appropriations of the streets. They express specific social and

political messages and give public voice to sentiments about

existing power relations.").

Sidewalk protests, by contrast, are commonly associated

with more particularized dissent. A sidewalk demonstration is

often linked to a specific business or institution, focusing

attention on what is occurring at that moment at that place –

targeting, for example, a business that refuses to serve or hire

members of minority groups, an abortion clinic, or an employer

engaged in a labor dispute.

There are exceptions, of course. As the City points out,

the civil rights movement used sidewalk marches on multiple

occasions during the 1960s. The successful Selma-to-Montgomery

voting rights march along Highway 80 in late March 1965 could not

have been more powerful if the thousands of marchers had been

walking down the middle of the road. Although such marches had

enormous impact during an extraordinary time in our country's

history, when equal rights demonstrators had widespread support and

the world's attention, the fact remains that a sidewalk march is

usually an inadequate substitute for the streets when the message

to be disseminated is unrelated to a specific locale.
 Professor Neisser also noted the importance of ensuring free 23

public fora:

The first amendment may not mandate or even tolerate

affirmative government action to overcome the disparities

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The stakes in access to the free public forum have also

become higher as other methods for reaching mass audiences have

grown more expensive and out of reach for the average citizen.

[A]ll speakers cannot gain access to all

forums. For example, many speakers cannot

afford television or radio broadcasting time,

and speakers espousing unconventional views

may find the mass media unreceptive. For this

reason, public streets and parks, which are

accessible to speakers regardless of their

financial resources or media appeal, are

vitally important public forums. Maintaining

free access to public streets and parks helps

insure a market composed of a wide range of

competing ideas.

Wiseman, 64 Wash. U. L. Q. at 986 (footnotes omitted); see also

Santa Monica Food Not Bombs v. Santa Monica, 450 F.3d 1022, 1036

(9th Cir. 2006) ("As traditional public fora, parks, sidewalks, and

streets 'provide a free forum for those who cannot afford newspaper

advertisements, television infomercials, or billboards.' Those

fora must not be regulated too restrictively, lest they become

unavailable to those who have little or no recourse to other, often

costly, areas for public discourse.") (citation omitted)); Bandy

Declaration at 7, App. at 115 ("[S]ocial movements have none or

very few alternative methods to communicate their message other

than low-cost demonstrations in public spaces and streets.");

Neisser, 74 Geo. L.J. at 297.23
in communicative effectiveness wrought by the

marketplace's pricing structure and the differing

financial resources of competing groups. Yet, if the

first amendment is to assure a safety valve for

dissatisfaction, genuine discussion of public policy,

ascertainment of new scientific truths or cultural forms,

and individual self-development, the public system of

expression must, at a minimum, avoid replicating the

private market's price structure and thereby reinforcing

its inequities.

74 Geo. L. J. at 297 (footnotes omitted). 

-83-

Although the internet has provided new fora for

communicating with large numbers of people, websites, blogs and

other publicly accessible online opportunities are not substitutes

for the face-to-face experiences that have, "from ancient times,

been a part of the privileges, immunities, rights, and liberties of

citizens." See Menotti v. Seattle, 409 F.3d 1113, 1174 (9th Cir.

2005) (Paez, J., concurring in part and dissenting in part)

("'[T]here is no internet connection, no telephone call, no

television coverage that can compare to attending a political rally

in person . . . .' Public protests are at the heart of the First

Amendment and are critical for incubating civic engagement and

encouraging spirited debate." (quoting Hodgkins v. Peterson, 355

F.3d 1048, 1063 (7th Cir. 2004)); Thomas P. Crocker, Displacing

Dissent: The Role of 'Place' in First Amendment Jurisprudence, 75

Fordham L. Rev. 2587, 2590 (2007) ("[T]he Internet does not provide

for serendipitous occasions to encounter others face-to-face or to

discover the new or the strange in both a social and public
-84-

setting."); Zick, 74 Geo. Wash. L. Rev. at 484 ("There is no

question that an abundance of speech takes place in these new

places; but courts must recognize that this speech is qualitatively

and, quite often, quantitatively different from speech in real

places."). The streets thus remain the only publicly accessible

forum that offers speakers both the immediacy of personal contact

and – in contrast to sidewalks – the realistic potential for

attracting a large audience and widespread attention with a

powerful message undiluted by space constraints. 

To be sure, the Constitution does not guarantee every

speaker her forum of choice. See, e.g., Heffron v. Int'l Soc. for

Krishna Consciousness, 452 U.S. 640, 647 (1981) ("It is [] common

ground . . . that the First Amendment does not guarantee the right

to communicate one's views at all times and places or in any manner

that may be desired."). As noted earlier, an alternative need not

have precisely the same impact to be "ample," see Taxpayers for

Vincent, 466 U.S. at 812; Globe Newspaper, 100 F.3d at 193.

However, under any meaningful standard of heightened review, that

alternative forum cannot be ample if it lacks the qualities that

make the streets a uniquely powerful forum for expression, and

thereby leaves indigent speakers and the public they seek to

influence with a substantially different and diminished First

Amendment experience. In upholding the sign ordinance in Taxpayers

for Vincent, the Court concluded that there was "no reason to
-85-

believe" the expressive benefits of posting signs on public

property could not be obtained through other means. 466 U.S. at

812. Noting the absence of a traditional right of public access to

utility poles for purposes of communication "comparable to that

recognized for public streets and parks," id. at 814, the Court

observed:

Notwithstanding appellees' general assertions

in their brief concerning the utility of

political posters, nothing in the findings

indicates that the posting of political

posters on public property is a uniquely

valuable or important mode of communication,

or that appellees' ability to communicate

effectively is threatened by ever-increasing

restrictions on expression.

Id. at 812.

Here, by contrast, we are considering access to

"'[t]raditional public forum property,'" which "'occupies a special

position in terms of First Amendment protection,'" id. at 813

(quoting United States v. Grace, 461 U.S. 171, 180 (1983)). And,

as I have described, the communication difference between the

streets and sidewalks is substantial, despite their physical

proximity. A speaker whose march may proceed down the middle of

Main Street has numerous advantages – larger numbers of spectators

and participants, the space to accommodate bolder and bigger signs,

the focused attention drawn by a parade, and the symbolic power of

"taking it to the streets."
-86-

This case implicates what Taxpayers for Vincent did not:

"a uniquely valuable or important mode of communication," 466 U.S.

at 812, that has "immemorially been held in trust for the use of

the public," Hague, 307 U.S. at 515. Because a message

communicated in the streets is uniquely powerful, a speaker in

Augusta who is unable to pay the permit fee to hold a street march

has no adequate alternative. That fee barrier is particularly

unacceptable given the government's role as trustee for the public

in providing safe access for expressive and other uses of the

streets. See Cox, 312 U.S. at 574. Consequently, the Constitution

requires that the city's parade ordinance include an indigency

exception.

II.

The City maintains that providing a fee exception for

indigents would be virtually impossible to administer. Without

minimizing the challenges of designing and implementing such a

system, there is experience to the contrary. Other cities have

included indigency waiver provisions in their schemes, and have

adopted various approaches for determining eligibility. In

Pittsburgh, for example, a sponsor of a parade or other expressive

event protected by the First Amendment will not be charged the

application fee or any other costs – including for traffic control

– upon a showing of indigency. To establish indigency, the event

sponsor must submit a notarized affidavit certifying that:
 Pittsburgh's application fee for "First Amendment Activity" 24

is set at an amount that "reflects the cost of evaluation and

scheduling the event." § 470.04. The city also requires payment

of "cost recovery fees" for the cost of providing public safety and

public works services. § 470.06. The total for the application

and cost recovery fees for parades may not exceed specified amounts

that vary depending on the parade's timing and duration. For

example, the maximum charge for a weekday parade lasting no more

than two hours is $500 while the maximum is $3,000 for a parade on

a weekend or city holiday that lasts more than two hours. § 470.04.

However, the city assumes the first $750 of "all costs associated

with First Amendment Activity, Parades, community events and block

parties." § 470.06(d). Costs for city services that exceed $750

are split equally between the City and the Special Event sponsor,

with parades being subject to the maximum fees stated in § 470.04.

Id. 

-87-

(1) The costs to be imposed exceed the

available resources of the

sponsor/ o r g a n i z a t i o n a nd the

sponsor/organization does not reasonably

foresee such funds becoming available within a

reasonable period after the Event; and

(2) The sponsor is not charging participation

fees or other admittance fees to the general

public for the Special Event and has no other

sponsor that is underwriting costs.

Pittsburgh, Pa., Code of Ordinances § 470.06(d)(1), (2). The 24

Minneapolis ordinance sets a $25 parade permit fee and also

requires applicants – without expense to the city – to

(1) . . . provide either authorized civilian

or police personnel at all intersections

requiring traffic-control personnel.

(2) . . . provide volunteers to monitor the

barricades at all intersections not requiring

traffic-control personnel, as determined by

the department of public works and the police

department.

(3) . . . provide, install and remove the

barricades, signs and delineation equipment as

directed by either the director of public

works or the chief of police or their

designees.
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(4) . . . defend and hold the city harmless

from all claims, demands, actions or causes of

action, of whatsoever nature or character,

arising out of or by reason of the conduct of

the activity authorized by such permit,

including attorney fees and expenses.

Minneapolis, Minn., Code of Ordinances § 447.120. However, the

city provides an indigency exception "[f]or individuals and

organizations with limited financial means" if "such burdens

substantially threaten the ability of such individuals and

organizations to obtain a parade permit." § 447.150. The director

of public works may waive the parade requirements under the

following circumstances:

(1) All parade applications. The parade

applicant and each person responsible for

organizing the parade must certify that each:

(1) receives public assistance, or (2)

receives average family income which is less

than one hundred twenty-five (125) percent of

the federal poverty line, or (3) cannot

support his or her family and his or herself

and also satisfy the requirements of section

447.120 without substantial hardship. . . .

(2) Parade applicants for organizations. In

addition, if the proposed parade is to be

conducted for, on behalf of, or by an

organization, the applicant shall disclose

assets held in the name of such organization.

The parade applicant must certify to the best

of his or her knowledge that the mission,

operation, or existence of the organization

will be substantially threatened if the

requirements of section 447.120 must be

satisfied by the organization.

 

Id.

There are undoubtedly threshold difficulties in these

systems of deciding who, in fact, qualifies for the fee exemptions.
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A determination that fees "exceed the available resources of the

sponsor/organization," or that the "existence of the organization

will be substantially threatened" if it is required to pay a parade

fee involves subjective judgments about allocation of limited

resources. Does a nonprofit need to forego mailing this month's

newsletter so the cost of postage can be reallocated to parade

expenses? Does it need to reassign parade participants who

otherwise would be carrying placards to traffic control duties?

See Goldberger, 62 Tex. L. Rev. at 410-11 (noting that "Cox

provides no standards for determining what constitutes an

oppressive charge" and that the Court did "not indicate whether a

charge that might deplete ten percent, twenty-five percent, or

fifty percent of a speaker's treasury is excessive or whether such

a charge is tolerable"); see Bandy Declaration at 7, App. at 115

("[T]here have been cases where fees imposed on movements for poor

people and the homeless in order to hold public demonstrations had

the effect of substantially straining the resources of those

organizations because they rely heavily upon volunteer organizers

and have no offices or regular sources of income.").

These sorts of questions, however, speak to the problems

inherent in charging anyone for the exercise of First Amendment

rights in streets and other public ways. Even those for whom a

parade fee is affordable may be deterred by the prospect of paying

several thousand dollars to finance their message. Indeed, the
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fees deemed permissible – for traffic control, for example – are

for "the same services [] routinely provided without charge to

nonspeech users of streets, sidewalks, and parks," thereby

"devalu[ing] speech activities in comparison to nonspeech

activities." Id. 411; see also Neisser, 74 Geo. L.J. at 332

("[P]olice service fees inherently discriminate against planned

public gatherings for expressive purposes, which the first

amendment is designed to protect.").

Hence, there is a plausible policy argument that the

responsibility for financing First Amendment activities in public

fora should belong to the community at large. At a minimum, a

government subsidy is a First Amendment imperative when individuals

who lack the means to pay required fees seek access to a uniquely

powerful public forum for the purpose of speaking on a matter of

public concern.

The costs need not be prohibitive for local governments, nor

necessarily borne by a single entity. As the likely target of

protestors with statewide concerns, a city that serves as the state

capital – like Augusta – reasonably could look to state coffers to

help finance street marches drawing residents from throughout the

state. See Neisser, 74 Geo. L.J. at 340-42. Alternatively,

allowing indigent applicants to provide their own traffic monitors

– perhaps with prior training provided by the police department –
 Professor Neisser reported that such an approach was adopted 25

by the City of Palo Alto, California. See Neisser, 74 Geo. L.J. at

339 n.387.

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could help reduce the cost of monitoring parades. Other 25

approaches for balancing the government's interest in recouping

costs and the speaker's right of access to the streets also seem

viable: applicants for permits who lack resources may be able to

meet city fee requirements through on-the-scene fund raising if

offered the opportunity to pay after their event, or perhaps

shorter routes or time periods could be designated for such

marches, so long as the speaker's message is not improperly

compromised. Creative government officials could devise additional

solutions that meet constitutional requirements.

III.

When fundamental interests are at stake, the Supreme Court has

held repeatedly that the government may not deny equal access to

indigents based solely on their inability to pay required fees. 

The right to march in the streets to disseminate a message of

public concern is at the core of the First Amendment and could not

be more fundamental. Thus, a parade ordinance that conditions

access to the streets on ability to pay cannot withstand the

heightened scrutiny applicable to such limitations because, for the

reasons I have explained, the streets are a uniquely powerful forum

for reaching a wide audience to express views on public policy. No

speaker may be denied access for such expression in that forum
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based on an inability to pay the associated costs. The district

court held correctly that "the Parade Ordinance must afford a fee

waiver for those unable to pay." 406 F. Supp. 2d at 126. I

respectfully dissent from the majority's contrary conclusion.