Gen. 75] 75

 In our review of local ordinances we concentrated on policies that 1

raise problems under Forsyth, as distinct from other types of issues under

previously established constitutional requirements. Because of this, and

because we have not examined every possible policy, our failure to

mention a specific law, ordinance, or regulation should not be interpreted

to mean that we have determined that it is constitutional. For example, the

Elkton Parade Ordinance, §99-4 of the Elkton Code, does not raise

Forsyth problems but has been found to give overly broad discretion to

local officials. Invisible Empire, Knights of the Ku Klux Klan v. Town of

Elkton, Civil No. L-92-724 (D. Md. Sept. 3, 1992). In addition, some

local subdivisions have unwritten policies. See Invisible Empire KKK v.

Mayor of Thurmont, 700 F. Supp. 281 (D. Md. 1988). Unwritten policies

are, almost by definition, unconstitutional. ACORN v. City of Tulsa, 835

F.2d 735 (10th Cir. 1987).

CONSTITUTIONAL LAW

FREEDOM OF SPEECH — EFFECT OF FORSYTH COUNTY V.

NATIONALIST MOVEMENT, 112 S.CT. 2395 (1992), ON STATE

AND LOCAL REGULATION OF PARADES, DEMONSTRATIONS,

AND PUBLIC MEETINGS

January 11, 1993

The Honorable Samuel I. Rosenberg

House of Delegates

You have asked for our opinion concerning the effect of

Forsyth County v. Nationalist Movement, 112 S.Ct. 2395 (1992), on

existing statutes, ordinances, and regulations of the State and local

subdivisions. We have examined a number of State and local

policies concerning parades, demonstrations, and public meetings

and have identified some that raise constitutional issues of the type

raised in Forsyth. In general, we can identify a number of

constitutional defects in the present formulation of these policies.1

I

Prior Supreme Court Precedents

It has long been established that a government may validly

impose a permit requirement for parades and demonstrations. Cox
76 [78 Op. Att’y

 The legislative history of the ordinance reflected the view of the 2

board of commissioners that “the cost of necessary and reasonable

protection of persons participating in or observing said parades,

assemblies, demonstrations, road closings, and other related activities

exceeds the usual and normal cost of law enforcement for which those

participating should be held accountable and responsible.”

v. State of New Hampshire, 312 U.S. 569 (1941). However,

standards must be provided for the grant or denial of a permit so that

the decision is not left in the unfettered discretion of the

administrator.

In Cox v. New Hampshire, the Supreme Court approved an

ordinance providing that a permit was to be granted unless

convenience of use of public streets would be unduly disturbed. In

other cases, the Supreme Court has rejected laws that set no

standards at all. City of Lakewood v. Plain Dealer Pub. Co., 486

U.S. 750 (1988); Cox v. State of Louisiana, 379 U.S. 536 (1965).

The Court has also rejected laws with standards so loose or vague as

to leave room for content-based discrimination. Hague v. Committee

for Industrial Organization, 307 U.S. 496 (1939) (permit to be

denied if, in the view of the administrator, denial would prevent

“riots, disturbances, or disorderly assembly”); Shuttlesworth v. City

of Birmingham, 394 U.S. 935 (1969) (denial allowed for reasons of

“public welfare, peace, safety, health, decency, good order, morals

or convenience”). In addition, prompt review of denials must be

available. Lakewood v. Plain Dealer Pub. Co.; National Socialist

Party of America v. Skokie, 432 U.S. 43 (1977); Southeastern

Promotion, Ltd. v. Conrad, 420 U.S. 546 (1975). Finally, in Cox v.

State of New Hampshire, the Court upheld a permit fee that ranged

between nominal and $300, based upon the size of the parade. 

II

Forsyth

In the Forsyth case, the Supreme Court considered the validity

of a parade ordinance that provided for a permit fee of up to $1,000

as set “from time to time” by a county board of commissioners. In 2

practice, the fee was set on a case-by-case basis and varied widely.

No evidence was produced to show that the difference in cost was
Gen. 75] 77

related to the expense of processing the application. In addition, the

decision whether to charge for police protection, and how much, was

left to the discretion of an administrator.

The Court found that this standardless authority to set fees was

invalid: 

The decision how much to charge for police

protection or administrative time ) or even

whether to charge at all ) is left to the whim

of the administrator. There are no articulated

standards either in the ordinance or in the

county’s established practice. The

administrator is not required to rely on any

objective factors. He need not provide any

explanation for his decision, and that decision

is unreviewable. Nothing in the law or its

application prevents the official from

encouraging some views and discouraging

others through the arbitrary application of

fees. The First Amendment prohibits the

vesting of such unbridled discretion in the

government official. 

112 S.Ct. at 2403.

The Court went on to find that the ordinance was also invalid

because the assessment of the fee involved content-based

considerations ) specifically, gauging public response to the

proposed speech and the number of police necessary to meet that

response. Under this system, “[t]hose wishing to express views

unpopular with bottle-throwers, for example, may have to pay more

for their permit.” Id. The Court concluded that “[s]peech cannot be

financially burdened, any more than it can be punished or banned,

simply because it might offend a hostile mob.” 112 S.Ct. at 2404.

Finally, the Court found that the $1,000 cap did not save the

ordinance, because “[a] tax based on the content of speech does not

become more constitutional because it is a small tax.” 112 S.Ct. at

2405. 
78 [78 Op. Att’y

III

State Policies

A. The University of Maryland

In your opinion request, you specifically asked about

assessment of fees to student groups at the College Park campus of

the University of Maryland for costs associated with sponsoring

controversial speakers. This practice became an issue a few years

ago when Louis Farrakhan was invited to speak by the Black Student

Union.

In that case the controversy arose when campus police sought

to require the Black Student Union to pay the costs for the extra

security perceived to be needed for the event. A resolution was

apparently reached in which the Union paid some of the costs out of

monies left over from ticket receipts after other expenses were paid.

Subsequently, the issue was referred to the President’s Select

Committee on Freedom of Expression. In a report dated November

13, 1989, the Committee recommended, in part: 

(1) The campus police should develop

criteria to be used in determining the level of

security for all events held on campus.

(2) The campus police should develop

expected levels of security for various

locations and types of events. These levels

would be applied to all routine campus events.

For extraordinary events the campus police

should establish a process for the development

of security needs. The process should allow

for appropriate student involvement and for an

appeal process.

. . .

(5) The athletic department, Student

Entertainment Enterprises (SEE), Summer

School, for-profit student sponsored

entertainment events, and outside groups

using campus facilities should continue to pay

for security.
Gen. 75] 79

(6) The budget for the campus police

should be enhanced by the SGA [Student

Government Association] and by special

campus allocations to cover all security costs

except those specified in 5 above. This

enhancement should be based on the average

of the costs of the preceding three years. With

this enhancement the campus police would be

expected to provide security for all appropriate

events without charge.

In response to suggestions 1 and 2, the Committee to Assess Security

Needs of Student Events issued guidelines concerning security

requirements. The report of this committee, issued May 17, 1991,

sets minimum security requirements for a variety of campus

locations and listed additional factors that could alter that

requirement. The additional factors are: advertising; whether the

event is open to the general campus population and the public or is

limited to members of the sponsoring organization; expected crowd

size; amount of staffing provided by the sponsoring organization;

history of the sponsoring organization and of any similar events;

whether money will be collected; the type of crowd expected;

increased risks arising from threats, planned demonstrations, and

similar factors; and the need to conduct searches. It is our

understanding that these factors are in fact used by campus police in

determining security requirements.

Due to budget constraints, suggestion 6 has not been

implemented. Instead, a special fund has been created for

“extraordinary security costs related to events featuring controversial

speakers.” This fund consists of money from the College Park

administration and SGA and is available to cover extraordinary

security costs of SGA-recognized student groups or other registered

student groups that co-sponsor events with SGA-recognized groups

or through SEE. Basic security costs must be covered by the group.

Groups are encouraged to sell tickets or increase ticket prices to

cover the costs and income from ticket sales “must as a first priority

be used to repay the amount spent from the fund.” A group may not

deplete the fund by more than $1,000 annually. Finally, the fund

agreement provides that “[t]he President of SGA and the Vice

President for Student Affairs will jointly administer the fund. Where
80 [78 Op. Att’y

agreement is not reached, the event in question will not be eligible

to receive funds from this account.”

As we understand it, basic expenses are those determined with

reference to such neutral factors as venue, expected crowd size, and

event type, while extraordinary expenses are those based on contentrelated factors, such as public reaction and group and event history.

Because basic expenses are based on neutral factors and are

calculated based on set guidelines, it is our view that they may

appropriately be charged to sponsoring organizations without

constitutional violation. Extraordinary expenses, however, present

a different situation.

Since extraordinary expenses are based on factors such as

public response, they cannot, under Forsyth, be charged to the

sponsoring groups. With respect to student groups, an attempt has

been made to avoid this problem by creation of the fund. However,

as the fund is currently set up, a group that wished to have a series

of controversial speakers would have to pay its own extraordinary

costs or pass the charges on to those who wish to hear controversial

speakers in order to avoid the $1,000 depletion limit. Thus, sponsors

or participants could have to pay extra based on the perception of

campus police that certain speech was likely to engender hostile

reactions. That is exactly the problem found invalid in Forsyth.

Therefore, it is our view that the fund agreement does not save this

aspect of the campus funding policy from unconstitutionality. 

In addition, no limitation is placed on a decision by the

President of SGA or the Vice President for Student Affairs to

determine not to pay funds for a specific event. Thus, this portion

of the agreement also presents a danger of content-based

discrimination.

To the extent that the University makes venues available for

use by the general public, it has created a public forum in which it

cannot discriminate on the basis of content without the most

compelling of reasons. Perry Education Association v. Perry Local

Educators’ Association, 460 U.S. 37, 45-6 (1983). Funding the

police is not such a compelling reason. Forsyth, 112 S.Ct. at 2404.

Therefore, charging extraordinary security costs to outside sponsors

also raises serious constitutional problems under the ruling in

Forsyth. 
Gen. 75] 81

 It is our understanding that the Department is currently working on 3

revised regulations.

 Because the regulations have “significant direct effects on the 4

public,” they are not within the “internal management” exception to

rulemaking requirements. 75 Opinions of the Attorney General 37 (1990);

72 Opinions of the Attorney General 230 (1987). We understand that the

Department is considering adopting the regulations.

B. Department of Natural Resources

The Department of Natural Resources has jurisdiction over

forests and parks in the State. The regulations of the Department

provide that “[i]n all State forests, except under permit obtained in

advance from a forest officer, public meetings, exhibitions, and

demonstrations of any kind are prohibited.” COMAR 08.07.01.11.

This regulation provides no standards for the issuance or denial of

a permit. Without such standards, the regulation is of doubtful

validity. ACORN v. City of Tulsa, Okla., 835 F.2d 735 (10th Cir.

1987). At the very least, the regulation should be administered by

promptly granting all requests without charge until a constitutional

regulation can be promulgated. 

3

C. Department of General Services

The Department of General Services has general control of

State office buildings and the property around them. The

Department has not formally adopted regulations concerning

demonstrations or other First Amendment activity on property under

its control. The Department does have certain “rules and

regulations” that it posts in buildings under its control. Without

adoption under the Administrative Procedure Act, however, these

regulations do not have the force of law.4

The regulations bar disorderly conduct on State property as

well as conduct that obstructs entrances and passageways. The

regulation further requires prior approval for the distribution of

pamphlets and handbills. In addition, the Department has an

informal permit system for demonstrations. Under this system,

permits are issued without charge to anyone who requests them

unless the demonstration would conflict with a previously scheduled

event.
82 [78 Op. Att’y

The Baltimore County and Chestertown ordinances refer to

5

parades; the Greenbelt ordinance refers to meetings.

 Section 146-4 of the College Park Code, and certain other 6

jurisdictions also allow denial of a permit if the concentration of persons

will be such as to interfere with proper fire and police protection and

ambulance service to nearby areas. As we read those provisions, their

purpose is to address traffic flow and not to permit consideration of crowd

control requirements. In fact, the two provisions frequently appear

together. See §24-369(4) of the Baltimore CountyCode; §14-24(6) of the

Greenbelt Code, §14-24(6); §123-4D of the Chestertown Code. To the

extent that such provisions are, in fact, aimed only at traffic flow, they

would be valid. 

It is our view that enforcement of these policies, in the absence

of adoption under the Administrative Procedure Act, raises

significant constitutional concerns about excess administrative

discretion. We strongly encourage the Department to move forward

with the adoption of regulations. 

IV

Local Subdivisions

A. Consideration of Police Protection Requirements

Section §24-369(2) of the Baltimore County Code, §15-29(4)

of the Greenbelt Code, and §123-4B of the Chestertown Code each

allow denial of a permit upon a determination that conduct of the

parade or meeting will require the diversion of so great a number of

adjacent areas as to prevent normal police protection in other areas

of the county or city. These provisions would allow an 5

administrator to deny a permit to a group with unpopular views

solely on the ground that protecting the group from others would

require too many police officers. 

It is our view that, just as the need for police protection due to

anticipated bystander reaction cannot serve as a ground to make

speech more expensive, it also cannot serve as a ground to ban it

altogether. Therefore, it is our view that these provisions are

invalid. 

6
Gen. 75] 83

 We have found one provision where the fee is to be set by local 7

officials, as it was in Forsyth. §24-368(e) of the Baltimore County Code.

However, we have been informed that the fee is set for all permits and not

on a case-by-case basis. It is our view that, as so applied, the provision is

constitutional, so long as the county is able to show that the fee is in fact

related to the administrative costs of their regulation. Murdock v.

Commonwealth of Pennsylvania, 319 U.S. 105 n.8 (1943).

B. Fee Waivers

Section 59-1D of the Perryville Code sets a permit fee of $500

but provides that the Commissioners may waive the fee “at their

discretion.” Section 123-3D of the Chestertown Code sets a permit

fee of $5 but provides that the Mayor and Council have “the right to

waive any fee.” Neither ordinance provides any standards to be

applied in determining whether a fee should be waived. 

In the absence of such standards, local officials are left with

unfettered discretion to discriminate on the basis of viewpoint.

Therefore, these provisions are unconstitutional. Even though the

Chestertown fee is only $5, the constitutional problem still exists.

See Forsyth, 112 S.Ct. at 2405. 

7

C. Insurance and Bonding Requirements

College Park requires an applicant to obtain an approved surety

indemnity bond or approved comprehensive liability insurance

policy naming the City of College Park as an additional insured. The

insurance or bond must cover all claims for personal injury and

property damage” from all claims arising from the permit issued

pursuant to this chapter.” Similarly, §109-11 of the Westminster

Code requires an applicant to give bond to the City for all expenses

related to the parade, including riotous and tumultuous assemblage

of people and vandalism “attributable to the holding of such parade

or demonstration.” In each case, the ordinance would appear to

require coverage of damages caused by bystanders and hostile

crowds as well as participants.

The ruling in Forsyth would prohibit application of a bonding

or insurance requirement that applies to damages caused by hostile

crowds. In fact, some courts have held bonding and insurance

requirements generally invalid, because the effect is to render
84 [78 Op. Att’y

 A public event is one which interferes with the use by the general 8

public of a street, sidewalk, or other public way in Rockville. §12-151.

speech, especially unpopular speech, more expensive or even to bar

it altogether. For example, in Invisible Empire KKK v. Mayor of

Thurmont, 700 F. Supp. 281 (D. Md. 1988), the court found that

parade insurance was simply not available to the Ku Klux Klan. The

court went on to find that the town had failed to show that the

insurance requirement was necessary to any compelling

governmental interest, given that the town’s general liability

insurance would cover any claims against the town and the town’s

interest could be more narrowly served by enforcing its laws against

damage to persons and property. A similar conclusion was reached

in Eastern Conn. Citizens Action Group v. Powers, 723 F.2d 1050

(2d Cir. 1983), where the court noted that insurance for such events

was difficult and expensive to obtain even for a non-controversial,

community-oriented group and that other steps could be taken to

minimize the risk of liability. See also Collin v. Smith, 447 F. Supp.

676 (N.D. Ill.), aff’d, 578 F.2d 1197 (11th Cir. 1978).

Thus, it is our view that the College Park and Westminster

insurance and bonding requirements are unconstitutional. 

D. Payment for Police Protection

Section 12-153 of the Rockville Code provides that the city

may require an applicant for a “public event license” to employ one

or more special deputy sheriffs, licensed uniformed security officers,

or other security personnel to keep order. If this requirement is 8

applied in a way that allows the city to consider the reactions of

bystanders, it is indistinguishable from Forsyth and would be

invalid.

In addition, at least one court has held that security costs may

not be imposed on an applicant at all. Invisible Empire Knights of

KKK v. City of W. Haven, 600 F. Supp. 1427 (D. Conn. 1985).

Others have held that the imposition of security costs is invalid only

if the amount is left to the discretion of local officials, thus

permitting them to make content-based determinations. Stonewall

Union v. City of Columbus, 931 F.2d 1130 (6th Cir. 1990), cert.

denied, 112 S.Ct. 275 (1991); Central Florida Nuclear Freeze

Campaign v. Walsh, 774 F.2d 1515 (11th Cir. 1985), cert. denied,
Gen. 75] 85

475 U.S. 1120 (1986). As the Rockville ordinance sets no standards

for when security is to be required, it would be unconstitutional

under either standard. 

V

Conclusion

In summary, it is our opinion that the State and local policies

discussed in this opinion should be revised promptly to conform

them to the requirements of the First Amendment discussed in

Forsyth County v. Nationalist Movement. 

J. Joseph Curran, Jr.

Attorney General

Kathryn M. Rowe

Assistant Attorney General

Jack Schwartz

Chief Counsel

 Opinions & Advice

Editor’s Note:

Regulations of the Department of General Services on

“demonstrations and rallies,” adopted after isssuance of this opinion,

may be found at COMAR 04.05.01.07. The regulation of the

Department of Natural Resources discussed in Part IIIB above has

been repealed.