2007 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

3-21-2007

Nationalist Movement v. York

Precedential or Non-Precedential: Precedential

Docket No. 06-2184

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Recommended Citation

"Nationalist Movement v. York" (2007). 2007 Decisions. Paper 1379.

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*

 The Honorable Dickinson R. Debevoise, Senior District

Judge, United States District Court for the District of New Jersey,

sitting by designation. 

1

PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

 

No. 06-2184

 

THE NATIONALIST MOVEMENT,

 Appellant

v.

CITY OF YORK

 

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF PENNSYLVANIA

D.C. Civil No. 02-cv-01917

District Judge: The Honorable Yvette Kane, Chief Judge

 

Argued: January 30, 2007

 

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

District Judge

(Opinion Filed: March 21, 2007)

 
2

Richard Barrett, Esq. (Argued)

P.O. Box 2050

Learned, MS 39154

Counsel for Appellant

James D. Young, Esq. (Argued)

Lavery, Faherty, Young & Patterson

225 Market Street

Suite 304, P.O. Box 1245

Harrisburg, PA 17108

-ANDDonald B. Hoyt, Esq.

Blakely, Yost, Bupp & Rausch

17 East Market Street

York, PA 17401

Counsel for Appellee

 

OPINION OF THE COURT

 

BARRY, Circuit Judge

Appellant, The Nationalist Movement, challenges the

constitutionality of section 741.03 of the Codified Ordinances of

the City of York (“section 741.03” or “the Ordinance”), which

requires, in certain circumstances, that prospective users of

public land within the City file an application, pay certain fees,

and agree to a variety of conditions before permission for the use

of that land is granted. The District Court ruled that two

provisions of the Ordinance were unconstitutional, a ruling the

City has not appealed, but the Court upheld the remainder of the

Ordinance and granted summary judgment for the City. We will

affirm in part and reverse in part.
1

 The District Court found the security deposit and

certificate of insurance provisions to be unconstitutional, a finding,

as noted above, the City has not appealed. 

2

 Schaad was a Caucasian rookie police officer who was

shot and killed during race rioting in York in July 1969. 

3

I.

As relevant here, section 741.03, the Public Meetings

provision, prohibits persons from “[c]onduct[ing] a public

assembly, parade, picnic, or other event involving more than

twenty-five individuals” on public land without first obtaining a

permit. § 741.03(c)(1)(A). In order to obtain a permit, an

applicant must file a written application and tender an

application fee, § 741.03(d), which is $50 for city residents and

$100 for non-residents. In addition, an applicant must sign an

agreement “in which the applicant shall promise and covenant to

bear all costs of policing, cleaning up and restoring the park; . . .

to reimburse the City for any such costs incurred by the City;

and to indemnify the City and hold the City harmless from any

liability to any person resulting from any damage or injury

occurring in connection with the permitted event proximately

caused by the action of the permittee” or its agents, §

741.03(d)(6), and pay “a user fee,” § 741.03(d)(8). The

Ordinance provides that the requirements “for a user fee,

security deposits, or certificate of insurance shall be waived . . .

if the activity is protected by the First Amendment of the United

States Constitution and the requirement would be so financially

burdensome that it would preclude the applicant from using Park

property for the proposed activity.” § 741.03(f)(3).1

 Completed

applications will “be processed in order of receipt,” §

741.03(e)(1), and grounds for denial, § 741.03(e)(5), deadlines,

and procedures for review and appeal, § 741.03(f), are set forth. 

On June 14, 2002, The Nationalist Movement submitted

an application to hold Henry Schaad Day2

 and a King Holiday

Protest at York City Hall on January 20, 2003. On that

application, it objected to the various fees as a “violation of the

First Amendment,” but did not indicate that it was financially
4

unable to pay the fees and did not request a waiver form. The

City denied the application as incomplete and a series of letters

then passed between the parties. Following the final rejection of

the application, The Nationalist Movement first requested a

waiver form and, on October 25, 2002, filed this action in the

District Court. 

The City moved to dismiss and The Nationalist

Movement moved for a temporary restraining order and a

preliminary and permanent injunction. Prior to the hearing on

the injunction, the parties agreed that The Nationalist Movement

could hold its event on January 20, 2003 without obtaining a

permit or paying more than a $1 nominal fee. The City did not

concede any defects in the Ordinance, but, rather, represented to

the Court that the Ordinance did not apply because the event

would have less than twenty-five participants. The event took

place without incident. The Nationalist Movement subsequently

filed applications to hold events in 2004 and 2005, applications

which have been held in abeyance pending resolution of this

case.

On May 5, 2003, the City moved to dismiss based on the

“settlement agreement” which had been reached with The

Nationalist Movement. That motion was denied. The parties

then moved for summary judgment. By Memorandum and

Order dated March 24, 2006, the District Court ruled that the

requirements that a security deposit be paid and a certificate of

insurance obtained before a permit could issue violated the First

Amendment of the Constitution because they essentially allowed

the City to charge higher fees based on the content of the

applicant’s message. The Court upheld all of the other

challenged provisions as constitutional and granted summary

judgment for the City. In addition, the Court rejected The

Nationalist Movement’s as-applied challenge and equal

protection arguments. Resolution of The Nationalist

Movement’s request for attorneys’ fees was stayed pending this

appeal.

We have jurisdiction over The Nationalist Movement’s

appeal pursuant to 28 U.S.C. § 1291. We exercise plenary

review of a district court’s order granting summary judgment.
3

 Although we find that The Nationalist Movement can

maintain its facial challenge, we find its as-applied challenge to be

completely without merit. As noted above, the City allowed Henry

Schaad Day to take place as scheduled and charged The Nationalist

Movement a $1 nominal fee. As such, The Nationalist Movement

has no legitimate basis to challenge the application of the

Ordinance to it. Furthermore, the contention that the City

improperly failed to waive the application fee is belied by the

record. The Nationalist Movement did not comply with the

procedures in the Ordinance and it did not even request a waiver

form until after the final rejection of its application. 

5

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

2006). 

II.

We decide, first, whether The Nationalist Movement can

bring a facial challenge to the Ordinance. Although the 2003

Henry Schaad Day went forward as planned, the Supreme Court

has long held that statutes which threaten to chill First

Amendment speech may be facially challenged without the

necessity of the speaker being denied, or even having applied

for, a permit. City of Lakewood v. Plain Dealer Publ’g Co., 486

U.S. 750, 755–59 (1988); Shuttlesworth v. City of Birmingham,

394 U.S. 147, 150–51 (1969). As the Court explained in Plain

Dealer Publishing Co., “a facial challenge lies whenever a

licensing law gives a government official or agency substantial

power to discriminate based on the content or viewpoint of

speech by suppressing disfavored speech or disliked speakers.”

Plain Dealer Publ’g Co., 486 U.S. at 759. Because we agree that

the Ordinance chills speech on the basis of its content, The

Nationalist Movement has standing to maintain its facial

challenge.3

We turn, then, to the constitutionality of the Ordinance. 

In Forsyth County v. Nationalist Movement, 505 U.S. 123, 130

(1992), the Supreme Court held that an “ordinance requiring a

permit and a fee before authorizing public speaking, parades, or

assemblies” in traditional public fora “is a prior restraint on
6

speech” and therefore subject to a heavy presumption against its

validity. Because the government does, however, have an

interest in regulating competing uses of public space, such a

prior restraint will be found constitutional where it does “not

delegate overly broad licensing discretion to a government

official” and is a valid time, place, and manner restriction, i.e., it

leaves open ample alternatives for communication and is

content-neutral and narrowly tailored to serve a significant

governmental interest. Id. 

In Forsyth County, the Court was faced with a statute

which allowed the levying of a permit fee of up to $1000 per day

which was designed to defray administrative costs and the cost

of necessary law enforcement at the planned event. The Court

found such a variable fee to be violative of the First Amendment

for a number of reasons. First, there were no standards directing

the setting of the fee, such that it was “left to the whim of the

administrator.” Id. at 133. “The First Amendment prohibits the

vesting of such unbridled discretion in a government official”

because such power could be easily used in a political fashion.

Id. Second, and alternatively, the fee was, in part, based on the

content of the speech.

Significantly, however, the Court did not rule that

application or permit fees are unconstitutional. In fact, the Court

cited its earlier decision in Cox v. New Hampshire, 312 U.S. 569

(1941), in which it stated that “[t]here is nothing contrary to the

Constitution in the charge of a fee limited” to “meet the expense

incident to the administration of the Act and to the maintenance

of public order in the matter licensed.” Cox, 312 U.S. at 577.

There is no discretionary component involved in setting

the application fee here. The fee is $50 for residents and $100

for non-residents and, absent waiver, is applied across the board

to all prospective users of “Park property.” This fee is nominal,

is not content based, and is narrowly tailored to allow the city to

recoup the cost of processing the application. Under Forsyth

County, there is nothing about the application fee that is
4

 The Nationalist Movement also challenges the $50/$100

application fee differential as violative of the Equal Protection

Clause. The District Court rejected this challenge, finding that the

lower fee for residents furthered the legitimate government purpose

of encouraging residents to hold events locally. The Supreme

Court has upheld residency requirements such as this under a

rational basis test where, as here, there was no contention that

fundamental rights were at issue. See, e.g., Martinez v. Bynum,

461 U.S. 321, 328–29 (1983) (school residency requirement);

Baldwin v. Fish & Game Comm’n of Mont., 436 U.S. 371, 388–92

(1978) (hunting permit for sport). The Nationalist Movement has

not shown that the rational basis test does not apply to this contentneutral minimal application fee, much less that, under that test, the

differential does not pass muster. 

5

 The City further acknowledged that the Ordinance should

be amended to more clearly reflect this interpretation of its scope.

It also acknowledged its understanding that the waiver provision

applies to the reimbursement and hold-harmless provisions. We are

skeptical as to how the waiver provision, in its current form, could

be read in such a fashion, and expect that during the amendment

process the City will rework that provision such that its scope is

clear. 

7

violative of the First Amendment.4

Furthermore, at oral argument the City conceded that it

reads the provision in the Ordinance waiving a user fee, security

deposit, or certificate of insurance to apply as well to the

application fee, despite the seemingly contrary language in the

waiver provision itself.5

 See Forsyth County, 505 U.S. at 131

(stating that courts must consider the government’s

“authoritative constructions of the ordinance, including its own

implementation and interpretation of it”). As such, as construed

by the City, the application fee does not unconstitutionally

burden the free speech rights of those speakers too indigent to

afford its payment. See Cent. Fla. Nuclear Freeze Campaign v.

Walsh, 774 F.2d 1515, 1523–24 (11th Cir. 1985) (discussing

Lubin v. Panish, 415 U.S. 709 (1974)). 
6

 We reject the City’s argument that this provision is

constitutional because it is identical to a provision in the Chicago

Park District ordinance, an ordinance unanimously upheld by the

Supreme Court. Thomas v. Chi. Park Dist., 534 U.S. 316 (2002).

In Thomas, however, the ordinance was challenged only on the

ground that the rigid procedural requirements of Freedman v.

Maryland, 380 U.S. 51 (1965), should apply. The Court rejected

that challenge and noted that the petitioner did not argue that the

ordinance was not content-neutral or otherwise invalid as a time,

place, and manner restriction. Thomas, 534 U.S. at 323 n.3.

7

 At first blush, a provision that charges for the policing of

an event seems like a content-neutral restriction because it serves

a purpose unrelated to content, even though it places a greater

8

In addition to the payment of an application fee,

applicants must sign an agreement “in which the applicant shall

promise and covenant to bear all costs of policing, cleaning up

and restoring the park” and “reimburse the City for any such

costs incurred by the City.” § 741.03(d)(6). We find that this

reimbursement provision is unconstitutional, and that the District

Court erred in finding to the contrary.6

 

It is beyond peradventure that a city can establish a permit

scheme whose goal is to “assure financial accountability for

damage caused by” an event, Thomas v. Chi. Park Dist., 534

U.S. 316, 322 (2002), and can take into account the resulting

expense of an event in assessing a fee. Thus, for example, a

circus or other large parade can be assessed a larger fee than a

small parade, because the former would cause a larger expense

to the government than the latter. Cox, 312 U.S. at 577; see also

Murdock v. Pennsylvania, 319 U.S. 105, 116 (1943); Church of

the Am. Knights of the Ku Klux Klan v. City of Gary, 334 F.3d

676, 682 (7th Cir. 2003). 

Such expenses, however, cannot be based on the content

of the proposed speech. In Forsyth County, the Court found a

permit fee that was based, in part, on the need to defray the cost

of providing police protection to the speaker to be an

unconstitutional content-based fee.7

 The Court ruled that such a
burden on some speakers. See Ward v. Rock Against Racism, 491

U.S. 781, 792 (1989). The Court in Forsyth County, however,

dispelled any such idea, finding that “it cannot be said that the fee’s

justification has nothing to do with content” given that an accurate

estimation of the necessary security would “necessarily” involve an

examination of the content of the speech, an estimate of the

response of others, and a determination of the “number of police

necessary to meet that response.” Forsyth County, 505 U.S. at 134.

8

 At that point in its analysis, the Court did not note the

standard that it was applying. Content-based regulations are

subjected to a higher standard of review than content-neutral ones.

The government must show that the regulation is necessary to serve

a compelling state interest and is narrowly drawn to achieve that

end. See Ark. Writers’ Project, Inc. v. Ragland, 481 U.S. 221, 231

(1987).

9

fee is necessarily based on the content of the speech because the

anticipated cost would need to be determined by estimating the

public’s reaction to the speech. Forsyth County, 505 U.S. at 134. 

For instance, “[t]hose wishing to express views unpopular with

bottle throwers . . . may have to pay more for their permit.” Id.

The Court held that raising revenue for police services could not

justify such a content-based fee.8

 Id. at 136; see also Church of

the Am. Knights, 334 F.3d at 680–82; Cent. Fla. Nuclear Freeze

Campaign, 774 F.2d at 1524–25; Invisible Empire Knights of the

Ku Klux Klan v. City of West Haven, 600 F. Supp. 1427,

1433–34 (D.Conn. 1985).

Applying this principle, the District Court found that the

security deposit and insurance requirements imposed an

unconstitutional content-based restriction because the City based

the required amounts of the security deposit and insurance

coverage on the “group’s reputation” and the “unpopularity of

the group’s message.” Memorandum at 16 & n.6. This, the

Court held, “threatens to dissuade unpopular groups from

utilizing traditional public forums by placing a premium

on—what the city views as—unpopular speech” and is therefore

unconstitutional. Id.
9

 This broad language can be contrasted with the

Ordinance’s hold-harmless clause, which requires the speaker to

agree “to indemnify the City and hold the City harmless from any

liability to any person resulting from any damage or injury

occurring in connection with the permitted event proximately

caused by the action of the” speaker. § 741.03(d)(6). On its face,

this clause applies only to damages for which the speaker can

legally be held liable, and, as the District Court pointed out,

Pennsylvania law provides that such provisions must be strictly

construed and “limited in scope to matters expressly covered

therein.” Fulmer v. Duquesne Light Co., 543 A.2d 1100, 1104 (Pa.

Super. Ct. 1988). As such, the hold-harmless clause here is

significantly narrower in scope than one recently upheld by the

Ninth Circuit. In Santa Monica Food Not Bombs v. City of Santa

Monica, 450 F.3d 1022 (9th Cir. 2006), the Court, over a strong

dissent, upheld a hold-harmless clause which was so broad as to

require a speaker to indemnify the city for the defense of frivolous

suits and for damages caused “by the conduct of an opponent of the

demonstration through no fault of the [speaker].” Id. at 1056.

While we need not comment on much less pass upon the

constitutionality of the provision at issue in that case, we note that

the hold-harmless clause at issue here would cover neither of these

situations. 

10

The reimbursement provision is similarly

unconstitutional. As the City conceded at oral argument, the

reimbursement provision is the flip side of the same coin as the

unconstitutional security deposit and insurance requirements. 

Unlike those requirements, which require a speaker to incur

costs calculated at least partially on estimates linked to the

content of the proposed speech before its event takes place, the

reimbursement provision requires a speaker to pay, after its

event has taken place, the actual costs incurred by the City. We

find that this distinction is not constitutionally significant, at

least not in this case. 

The broad language of the reimbursement provision

clearly allows the City to charge a speaker not only for costs

rightfully associated with its event, but with numerous other,

content-based, costs.9

 For example, the City would incur
We recognize that even a narrowly-confined hold-harmless

clause can have an inhibiting effect on speech, particularly speech

concerning a controversial subject. See, e.g., Van Arnam v. Gen.

Servs. Admin., 332 F. Supp. 2d 376 (D. Mass. 2004). Given the

City’s acknowledged understanding that the waiver provision,

“fairly read,” encompasses the hold-harmless clause as well as the

application fee and the reimbursement provision, we would expect

it to acknowledge, as it has done with regard to the application fee,

that the provision should be amended to reflect this reading. See

supra note 5. Given the City’s interpretation, and the narrow scope

of the hold-harmless clause, we agree with the District Court that

the clause does not offend the First Amendment. 

11

expenses planning for the public’s reaction to the speech,

making available the necessary resources to contain potential

counter-demonstrators, providing an appropriate level of police

presence to control and pacify counter-demonstrators, and

generally protecting the speaker. All of these actions would

necessarily require a consideration of the content of the proposed

speech and the anticipated reaction of the public. If we

countenanced a charge for such expenses, we would be allowing

the ruling in Forsyth County to be undermined by the simple

expedient of charging content-based fees after an event has taken

place rather than before and we would be ignoring precedent of

long standing holding that speech cannot be burdened because of

the reaction of others. See, e.g., Terminiello v. Chicago, 337

U.S. 1, 5 (1949); Schneider v. State (Town of Irvington), 308

U.S. 147, 162 (1939). 

Indeed, in many ways, the reimbursement provision is

even more offensive to the First Amendment than the security

deposit and insurance requirements struck down by the District

Court. An applicant who signed the agreement required by the

reimbursement provision would have no way of knowing the

scope of the liability to which it might be subjecting itself. 

Although an applicant can plan for the level of participation by

members of its organization, it simply cannot accurately

anticipate the actions of others or the anticipated reaction of the

police. See, e.g., Terminiello, 337 U.S. at 5; Schneider, 308 U.S.

at 162–63; Van Arnam v. Gen. Servs. Admin., 332 F. Supp. 2d
10 We have considered The Nationalist Movement’s

remaining arguments (that is, those which were at least marginally

covered by the disappointing briefs of both parties, see, e.g., United

States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 1991)), and find them

to be without merit. As such, the District Court’s rulings on these

matters will be affirmed.

12

376, 402–03 (D. Mass. 2004). To require an applicant to agree

to pay this unquantified fee—which is based substantially on the

anticipated and actual reaction of others—before it can speak is

an unconstitutional chilling of speech even if, as the Seventh

Circuit remarked, “the fee is calculated with scrupulous

precision by a battalion of cost accountants.” Church of the Am.

Knights, 334 F.3d at 681. 

Furthermore, the reimbursement provision is ripe for

abuse. In deciding how best to police the event and charge the

speaker, the City is given unlimited discretion which could

easily be used to punish (or intimidate) speakers based on the

content of their messages. Given the substantial expense that

could be levied upon a speaker, and the almost limitless

possibility of abuse, it is an understatement to conclude that this

provision chills constitutionally-protected speech.10

III.

For the foregoing reasons, we will affirm in part and

reverse in part the order of the District Court and remand for

further proceedings.