William H. Rehnquist: We'll hear argument first this morning in argument No. 91-538, Forsyth County, Georgia v. The Nationalist Movement. Mr. Stubbs. Is the name of the county pronounced Forsyth or Forsyth?
Robert S. Stubbs, III: Forsyth, Your Honor.
Antonin Scalia: Forsyth, very good.
Robert S. Stubbs, III: Mr. Chief Justice, and may it please the Court: Forsyth County, which is a political subdivision of the State of Georgia, comes before you to ask you to reverse a decision of the Eleventh Circuit Court of Appeals which invalidated as unconstitutional on its face our Ordinance 34, which is our parade ordinance. That ordinance imposes a fee for the use of county property for expressive purposes. The court below found that the cap that we have on this fee of $1,000 exceeded a nominal amount. They based that finding on a reading of a case of this Court from 1943 called Murdock v. Pennsylvania. That case, we feel, does not say what the Eleventh Circuit says it says, and we believe that the true precedent to rely upon in our case is Cox v. New Hampshire, a 1941 case of this Court, wherein at the beginning of the consideration of the fee in the New Hampshire statute, this Court said that there remains the question of license fees, which as the court said, referring to the New Hampshire court, had a permissible range from $300 to a nominal amount, a recognition we believe that indicates there is a difference between $300 and a nominal amount in 1941. We believe the base upon which this Court utilized in Cox to reach its conclusion there, may begin with a review of the Constitution, article 4, section 3 of the second paragraph which grants Congress, and I quote: the power to make all needful rules and regulations respecting property belonging to it. The Tenth Amendment reserves to the States those powers not otherwise taken away from them by the Constitution, and this Court then in Cox stated basically that it was undoubted that there is authority in a local government to control the use of its property. We believe that if this were not a government, and if it did not involve the First Amendment, that there would be no question that charging a fee for the use of one's own property would be accepted as an inherent right of ownership. What this case represents is a clash between that inherent right of property ownership and the public's First Amendment rights to use public property for First Amendment purposes.
Antonin Scalia: Mr. Stubbs, that goes a little far, doesn't it? I mean, can the county charge me for jumping up on a soapbox and just all by myself giving a speech, not causing any interference with traffic, not requiring any policeman?
Robert S. Stubbs, III: Our ordinance would not require you--
Antonin Scalia: I know your ordinance wouldn't, but your principle would allow the county to charge me for that, it's the county's property after all. Do you think the Fifth Amendment would allow you to charge for that?
Robert S. Stubbs, III: --I think the Fifth Amendment allows you to, if you have to administer an ordinance, and if you have to police demonstrations, to charge a fee to offset the cost of doing that. To charge you for the privilege of free speech, that is not allowed and that is not what we are doing.
Antonin Scalia: But that is the principle you were arguing. You were arguing property rights it seems to me, that just on the basis that it owns the property, the State, despite the First Amendment, can charge. That doesn't seem to me right.
Robert S. Stubbs, III: I don't mean to say that there is a rental for the use of the property. The fee is designed to offset time for administration and the policing costs which may be necessitated depending on the nature of the demonstration.
Sandra Day O'Connor: Now are we dealing here with the quintessential public forum, the streets and open spaces in the county?
Robert S. Stubbs, III: Justice O'Connor, we believe that for purposes of this case, the courthouse grounds can be considered as a quintessential public forum; however, we would note that in an Eleventh Circuit case, which name escapes me, they took the Richard Russell Federal Building in Atlanta and basically differentiated the different types of forum, depending on where you stood in the plaza--
Sandra Day O'Connor: For purposes of our resolution of this case, you agree that we should decide it on the grounds that it is a public forum?
Robert S. Stubbs, III: --We have no problem with you deciding it on that basis.
Sandra Day O'Connor: Now do you think that the Constitution requires the county to make any exception for indigents and those who are unable to pay a fee?
Robert S. Stubbs, III: Yes, ma'am, we believe that, and we do--
Sandra Day O'Connor: Do you think that this ordinance does that when it doesn't extend it to a group that has no assets?
Robert S. Stubbs, III: --We believe we can make that distinction.
Sandra Day O'Connor: How would you justify that, do you suppose?
Robert S. Stubbs, III: We justify it because a group, first of all, a group... each of the individuals, if they don't have any assets, that group can then get a waiver of the fee.
Sandra Day O'Connor: But not under the terms of the ordinance, which would extend only to individuals, I thought.
Robert S. Stubbs, III: No, I think the ordinance indicates that each individual in a group applies for a waiver, then the fee can be waived.
Sandra Day O'Connor: So that if the group organizing a particular gathering on the public streets in Forsyth County wanted to get a permit, you would want an affidavit of indigency from every person participating, is that it?
Robert S. Stubbs, III: If it was a group that was not a formal association or a corporation, under the terms of our ordinance, that is what we are stuck with until we can get back and fix it. And as the Eleventh Circuit and the district judge recognized, we have got a cumbersome problem with that particular feature of our ordinance.
Sandra Day O'Connor: And if it were an informally organized group?
Robert S. Stubbs, III: We think each individual could come in and sign an indigency waiver.
Sandra Day O'Connor: Do you think that is at all burdensome on the right of speech?
Robert S. Stubbs, III: Not on the right of speech. It is inefficient, it is cumbersome, and we would like to fix it when we get a chance--
Anthony M. Kennedy: What is the principle upon which you base your conclusion that there must be an indigent waiver? Why don't the rich have an equal right to speech?
Robert S. Stubbs, III: --Justice Kennedy, we have reviewed or tried to review this Court's cases, and there are numerous indications in the past that the constitutional rights that we all have cannot be denied by lack of funds.
Anthony M. Kennedy: I can think of the appellate transcript case, Griffin and Illinois, and I stop about there. Can you give me some help?
Robert S. Stubbs, III: The poll tax case.
Anthony M. Kennedy: Pardon me?
Robert S. Stubbs, III: The poll tax cases, I believe, were only--
Anthony M. Kennedy: The poll tax cases?
Robert S. Stubbs, III: --Or some of them. Where we draw the line, though, is in an organized group like The Nationalist Movement which is a corporation, and we feel--
Antonin Scalia: Wait a minute. In the poll tax cases were you allowed to charge poll taxes to rich people but not to poor people? Is that how we defined those cases?
Robert S. Stubbs, III: --As we read them, they invalidated the poll tax because there was a bad motivation there.
Antonin Scalia: That's right. Why isn't the same here, you are either entitled to charge or you are not entitled to charge. If you are entitled to charge, you can charge rich and poor alike.
Robert S. Stubbs, III: There is an alternative way to spread your message than to use county property, and a poll tax situation, if you didn't pay the tax you couldn't vote. There was no alternative way to vote.
Antonin Scalia: That's right, you are agreeing with me, then.
Robert S. Stubbs, III: Yes.
Antonin Scalia: You don't have to make this exception, you have just chosen to make this exception between the rich and the poor?
Robert S. Stubbs, III: We have chosen to make the exception, but we believe that it is required to the extent that if a poor person or a group of poor people want to engage in some kind of free speech, that they should be entitled to do so if they can't afford to pay the fee.
Antonin Scalia: We are not talking about free speech... we are talking about only parades, right? Do they have to do a parade? Can't they stand out on the street and deliver their message?
Robert S. Stubbs, III: Yes, but if it is our street, we would assume that they come under our ordinance and would have to apply for a permit and would ordinarily be charged a fee, but we are providing an indigency waiver if they cannot afford that if they are individuals, whether we have to or not, we thought we did.
Anthony M. Kennedy: That is what we are here to inquire, I thought that was your submission to Justice O'Connor, that a indigency waiver is required, but it seems to me that is a very important part of this case.
Robert S. Stubbs, III: Justice Kennedy, the Eleventh Circuit didn't reach that issue and it wasn't briefed in any great detail, and I would assume that whatever happens to this case, the possibility exists that the Eleventh Circuit may get to deal with the indigency provision again. As I have said, argument in the district court and in the court of appeals and probably here today indicates how cumbersome and burdensome our indigency provision is. But until this litigation is ended, we really have not attempted to make it more workable.
William H. Rehnquist: Is there some claim by the respondents here that they were indigent?
Robert S. Stubbs, III: Yes.
William H. Rehnquist: How did the lower courts treat that?
Robert S. Stubbs, III: The Eleventh Circuit didn't reach it. The district court ruled that they had no right to an indigency claim based on an analogy to Title 28, U.S. Code 1915, where the Federal courts don't allow corporations to proceed in forma pauperis.
William H. Rehnquist: Did the respondent fill out the necessary affidavit specified in the ordinance?
Robert S. Stubbs, III: Yes, sir.
William H. Rehnquist: Did they then get a permit or--
Robert S. Stubbs, III: They were issued a permit contingent on payment of a $100 fee and they would not pay so they did not march, and this is how the case got here.
Sandra Day O'Connor: --Mr. Stubbs, the county administrator in this case just considered costs of administration of the permit application?
Robert S. Stubbs, III: Yes, ma'am.
Sandra Day O'Connor: Why did the administrator not consider the cost of police required for the march, do you suppose?
Robert S. Stubbs, III: Justice O'Connor, in 1985 the Eleventh Circuit came down with a decision which basically said that they read... it didn't have anything to do with Murdock, they just said that you could not charge a fee for police activities. We were faced with--
Sandra Day O'Connor: Your ordinance refers to the cost of police.
Robert S. Stubbs, III: --That's correct.
Sandra Day O'Connor: But in deference to the Eleventh Circuit's rulings in some other case--
Robert S. Stubbs, III: We did not exercise that option.
Sandra Day O'Connor: --I see. But I take it the principle upon which you rest here would not limit your right in the manner in which the Eleventh Circuit did. In other words, the principle that you espouse here would authorize you to charge for the cost of police, subject to an indigency exception.
Robert S. Stubbs, III: Yes, sir.
David H. Souter: So that in your view, you could have had an ordinance that would have allowed you to charge $700,000 for the civil rights demonstrations or parades in the earlier instances?
Robert S. Stubbs, III: Our ordinance puts a cap--
David H. Souter: I know yours does, but your principle would allow you to do that, is that correct?
Robert S. Stubbs, III: --Our principle would, Justice Souter. What we were concerned about is that in New Hampshire in 1941, their ordinance had a cap and we felt that therefore, we ought to have a cap--
David H. Souter: Well, no, I realize that, but I just want to understand what the rule is that you are ultimately relying on, subject to the cap. Do you think you have a problem if you, in effect, are allowed literally or would be allowed literally to adjust the fee in accordance with the difficulty of policing the demonstration because you would thereby have a relationship between the likely controversial nature of the message or of the point being made by the parade or demonstration which would in effect make it content-based or viewpoint-based?
Robert S. Stubbs, III: --That is one of the reasons why we thought the cap in New Hampshire, and our cap, is probably necessary.
David H. Souter: But can you get out of it that way, because as I understand it, at least within your $1,000 limit, you would still be adjusting or you would still be setting your fee within the $1,000 limit depending upon the likely cost, and that would bear a relationship, I suppose, to the controversial nature of what was being demonstrated for.
Robert S. Stubbs, III: Well, we have a balancing of interests here, obviously. There are cases of this Court which indicate that sometimes there is an incidental effect upon First Amendment freedoms when fees are charged or time, place or manner restrictions are put on demonstrators.
David H. Souter: But this isn't a time, place or manner restriction--
Robert S. Stubbs, III: We believe it is, Justice Souter, because--
David H. Souter: --How is it a time, place or manner restriction if it is varying depending on... or varying in relationship to the content of the message?
Robert S. Stubbs, III: --Well, first of all--
David H. Souter: I mean, by definition, you know, what is allowed under time, place and manner starts with the assumption that you don't have that kind of a content-based determination.
Robert S. Stubbs, III: --Well, it's not... the content doesn't affect how the ordinance is administered. It affects costs for policing, that is the only way the content affects anything.
David H. Souter: What's the difference?
Robert S. Stubbs, III: Well, I think--
David H. Souter: I mean, if you are going to... if you are say that your principle allows you to charge in relation to the cost of policing, you are saying the same thing.
Robert S. Stubbs, III: --Well, Justice Souter, the only way I can answer that question is to say that in Cox v. New Hampshire we used the same language that they did there. That was a time, place and manner case. We feel that where you have a licensing or regulation scheme, that is what time, place or manner is, you have a permit required so that somebody knows that somebody is coming to demonstrate and they can do what needs to be done to adequately police and take care and prepare for whatever the demonstration is. And that whole scheme takes money, and we believe that is what was recognized in Cox--
David H. Souter: But basically, you are resting on Cox? I mean, if we think Cox is no longer consonant with present First Amendment analysis, you do not, as I understand it, have an argument that nonetheless, your scheme should survive?
Robert S. Stubbs, III: --We have a problem if Cox is no longer viable.
Antonin Scalia: Mr. Stubbs, am I correct that you not only did not charge for the police protection which you were authorized to charge for, but you didn't even charge the full amount of the administrative costs?
Robert S. Stubbs, III: That's correct, Your Honor.
Antonin Scalia: You reduced what it might have been.
Robert S. Stubbs, III: The administrator made a determination that he wanted to charge what had been charged the year before so that there would be no--
Antonin Scalia: That is very generous of him. I mean, can he pick which organizations he decides to be generous with? I mean, would he have been as generous if this were a Communist Party demonstration or some other group? What kind of an ordinance is that, anyway?
Robert S. Stubbs, III: --I think the generosity was an attempt to avoid what has happened, to coming up here, and not out of agreement with the message by any means.
Antonin Scalia: Well, how do we know that? I should think you have to charge all groups on some fixed basis and not... you make the point in your brief as though it is a point in your favor that you didn't charge the full amount that could have been charged. I don't take it as a point in your favor. It is one of the things I worry about with this ordinance, that it allows people to scale the fees as they wish.
Robert S. Stubbs, III: The ordinance doesn't necessarily allow it. I think an argument could be made that by applying it and reducing it, there was some kind of unequal treatment given The Nationalist Movement as compared to others who might come in who may not get the same kind of treatment. I don't think it has anything to do with the facial constitutionality of the ordinance though which is, as I understand it, what the issue... at least, that is what the Eleventh Circuit ruled on here. They didn't get to the applied aspects--
David H. Souter: Mr. Stubbs, let's assume that you could meet Justice Scalia's concern and that the generosity, or we won't call it generosity, the reduction was subject to some principle, so that it wouldn't be a danger of its varying depending on the sympathy or lack of sympathy with the organization, assuming that the amounts would be, on some principle basis, reduced down to what perhaps is a nominal amount in today's values; don't you then encounter a different problem, that what you are charging really doesn't bear any relationship at all between, or to, rather, the expense that you are trying to offset? I mean, if you charged $100 or even your $1,000 in the case of the $700,000 parade, I mean, there just wouldn't be any significant relationship between what you were doing and the object which supposedly justifies what you are doing, i.e., offsetting costs.
Robert S. Stubbs, III: --Justice Souter, we addressed that in our brief by citing this Court's language in Massachusetts v. United States where the Court recognized, and I think that was a supremacy clause case, that the costs the FAA was charging States and anybody else using their facilities was negligible in relation to the entire costs, but the Court indicated that they could nevertheless be considered, because Congress considered it that way, as an integral and essential part of the network of user fees that the Congress had set up. And we feel that the same thing is being accomplished here. It may be negligible--
David H. Souter: Is that going to pass First Amendment muster today?
Robert S. Stubbs, III: --Well, Massachusetts v. United States is not that old of a case, Your Honor. I think that is '78 or thereabouts, and I don't think we have moved that far in the last 14 years, but, in other words, what I am saying is any impact to offset our costs is a laudable gesture, I think, on the part of local government or any government. And whether or not it bears an actual relationship should not be fatal to what we are asking to be allowed to do. We would reemphasize the fact that, as local government is wont to do, we have to try, the best we can, to word these ordinances in view of the First Amendment considerations, and that is why we utilize the language from Cox, figuring that if we could not utilize this Court's language, there is no much way of doing what we wanted to do legally. We don't believe that the distinction we are making between utilizing a user fee concept as opposed to a general taxation is something that should cause any problem either. I think all local government or any government has the ability to decide whether they want to raise revenues by taxing their respective citizens or assessing fees against those who come in and want to use their facilities, especially when you have a situation where most of the people who may be utilizing whatever facilities are available are not tax-paying citizens. We do believe, in spite of the alleged equitor's veto which I am sure concerns the Court to some extent, that we have been as content-neutral as possible. We do not believe there is any basis to allege, and the district court found as a matter of fact that we had acted in good faith with regard to the... viewing the message of The Nationalist Movement, and at this point that has never been seriously attacked, even by the respondent in our view. The concern that the respondent, The Nationalist Movement, raises concerning the impact of any kind of fee on the ability of anyone to express themselves on important issues in the public, we believe is misplaced. There are many examples of burdens on resources of those wishing to spread their message. You don't have free access to radio. The air is free, but the frequencies are auctioned off and controlled and people pay for those, and then when you want to buy time, you have to do that, you have to buy time. Taken to its logical extreme, if The Nationalist Movement's founder wanted to travel from Mississippi to Georgia for the one and only purpose of spreading his message in Forsyth County, the sales taxes on his airplane ticket or the gas taxes on his automobile would be an impact on his ability to spread his message, but it is not, it is incidental and it is a burden that we all have to bear. There is just simply no free lunch.
Antonin Scalia: Once again, you wouldn't say that if it were just, or would you, if it were just an individual who wants to stop passers-by. He is not parading. He just wants to speak on the sidewalk.
Robert S. Stubbs, III: Our ordinance has made a policy decision--
Antonin Scalia: I am not talking about your ordinance. I am talking about, would you make the statement that you just made, that it is just like charging for an airplane ticket, we can charge him for the sidewalk?
Robert S. Stubbs, III: --If there is really no administrative cost to the county and there is no policing requirement in that situation, there is no need for any fee because there would be no basis for it, and it would be struck down.
Antonin Scalia: I see, and is that the case with radio time too? You can't charge for it if it is not costing you anything?
Robert S. Stubbs, III: Apparently, the Government--
Antonin Scalia: I mean, suppose I have all this empty radio time, with cable channels I suppose there is a lot of dead time, if it doesn't cost you anything you can't charge for it?
Robert S. Stubbs, III: --As we understand the way the FCC operates, you pay to be able to have one of those channels or those frequencies, and therefore, after that it is your decision what you charge. I don't know how much Government involvement goes on after that, but it does and you do have to pay. It is not free unless they, out of the goodness of their heart, those who have frequencies, want to give you the time.
Antonin Scalia: And you think streets are the same?
Robert S. Stubbs, III: I don't think they are the same, but it impacts on First Amendment expression, whether it is the same or not, and therefore we don't necessarily see why there should be any great concern if the fees are reasonable and are not related to content, and are related to direct costs. If there is no cost then there should be no fee, and we don't charge one.
Anthony M. Kennedy: Why isn't this case like the instance where a municipality charged ink used by the press?
Robert S. Stubbs, III: Excuse me, I didn't hear that.
Anthony M. Kennedy: Why isn't this a case like the one where the Minnesota Star was challenging the ordinance in which the city taxed ink used by the press? I mean, it seems to me that that is much closer to this case than your hypothetical about a sales tax on a air ticket that everybody has to pay. This is a tax that has a particular bearing on speech.
Robert S. Stubbs, III: I am trying to remember the facts of the Minnesota Star, but I believe it had something to do with where you put your papers.
Anthony M. Kennedy: Suppose you had a tax on ink.
Robert S. Stubbs, III: On ink?
Anthony M. Kennedy: On ink, that is used by the print media, and the whole bearing of the tax, the whole burden of the tax falls on the media. We have ruled that that is unconstitutional, have we not?
Robert S. Stubbs, III: I am not familiar with the case, Justice Kennedy, I apologize. I don't... if there is a tax on ink and anybody that buys that ink has to pay that tax, I would not see anything particularly wrong--
Anthony M. Kennedy: Suppose the whole burden of the tax falls on the press because there was an exemption in that case for small purchases of ink, just ink in bulk. Isn't that what this case is? This is a tax that has a real burden on speech and expression and on nothing else. Am I wrong about that? Does it apply to company picnics or something?
Robert S. Stubbs, III: --We don't believe it is. It is a tax... it is not a tax at all, it is a fee to offset our costs in providing access, property, policing and administering an ordinance, for people who wish to do free expression. It has nothing to do with content, other than sometimes increasing the cost of policing, which we have tried to cap. Therefore, we don't believe it is a tax on free speech. It is not like Murdock.
Anthony M. Kennedy: I am not saying it is a tax on free speech. I am saying the burden falls on speech.
Robert S. Stubbs, III: But there are other burdens on speech, any time, place or manner--
Anthony M. Kennedy: But they are general burdens. This is a specific one.
Robert S. Stubbs, III: --It is specific in that it's money, but it is not specific in that it offsets out-of-pocket expenditures or time by salaried employees for the county, and therefore, we believe we are entitled to recoup it based on the Cox v. New Hampshire case, which we believe was reasonable and logical and has not been... and there appears to be no reason that we can see why it should not still have vitality--
Antonin Scalia: Do you make charges for bike races, either a marathon or a bike race in town--
Robert S. Stubbs, III: --That's correct, we do.
Antonin Scalia: --You do, under a different ordinance?
Robert S. Stubbs, III: No, this ordinance.
Antonin Scalia: Under this ordinance?
Robert S. Stubbs, III: Under this ordinance. Anybody who wants to use county property for any reason--
Antonin Scalia: I thought it just applied to parades, processions or open air public meetings.
Robert S. Stubbs, III: --Well, a parade, a procession--
Antonin Scalia: You consider a bike race a parade or a procession?
Robert S. Stubbs, III: --We would.
Antonin Scalia: Wow.
Robert S. Stubbs, III: It is just an attempt to make sure we know what is going on, where it's going on, and that we can take care of it properly, and we have charged the fee to numerous types of different activities that have occurred in the county, on county courthouse property, or on the streets.
John Paul Stevens: Does the record tell us whether... what variation in the fees there has been for these other events like bike races and so forth?
Robert S. Stubbs, III: I hesitate, Justice Stevens, because there were two cases and in one of them, the record would reflect that. I don't know whether it is this one or the one that happened before this in the district court, where there was testimony about different fees that had been charged for other activities.
John Paul Stevens: So it is a matter of public record in one of the two cases?
Robert S. Stubbs, III: Yes, sir.
John Paul Stevens: What does the record show?
Robert S. Stubbs, III: I know the administrator testified, I think he has charged the Girl Scouts $5.00 for a little activity that they had. We have a little gazebo that sits on the courthouse corner--
John Paul Stevens: At least it is not a flat $100.00 from everybody--
Robert S. Stubbs, III: --No, sir.
John Paul Stevens: --even though I suppose the administration is pretty much the same, the cost of administration probably is pretty much the same?
Robert S. Stubbs, III: It depends, Justice Stevens, because if it is a very simple thing like the Girl Scouts, then he simply does what he does and issues a permit and away we go. If it something that requires his coordination with the sheriff and the FBI, as in this case, the obviously that is a greater time. Thank you.
William H. Rehnquist: Thank you, Mr. Stubbs. Mr. Barrett, we'll hear from you.
Richard Barrett: Mr. Chief Justice, if it please the Court: If the right of the people to peacefully assemble to petition the Government becomes only a privilege then the county becomes a kingdom. The courthouse is a castle and the citizen is a subject. The moat around this castle, if you will, is the $1,000 permit fee for those seeking to assemble on the steps, and there is no drawbridge for either the poor who have no fee to pay for the steps, or for the free, who refuse to kneel upon the steps. Here is the battering ram against the palace of privilege, it is the inalienable and universal rights of man, and here is the crossbow against the ramparts of tyranny. It is the First Amendment. And here are the keys to the kingdom: 1943, Murdock. There can be no charge for the enjoyment of a right guaranteed by the Federal Constitution. 1944, Follett. There may not even be a $1.00 per day fee to exercise rights under the First Amendment.
William H. Rehnquist: Mr. Barrett, do you think those cases overruled Cox?
Richard Barrett: Cox was adopted, Your Honor, at a time--
William H. Rehnquist: Will you answer my question?
Richard Barrett: --They were consistent with Cox, Your Honor.
William H. Rehnquist: But Cox, Cox spoke of a fee ranging from a nominal amount to $300.00 in 1941 and said there was nothing unconstitutional about that fee.
Richard Barrett: First of all, Your Honor, in 1941 there was no public forum doctrine. That was developed recently--
William H. Rehnquist: You said Cox was consistent with Follett and the other case.
Richard Barrett: --Yes, Your Honor.
William H. Rehnquist: Okay.
Richard Barrett: I will tell you why if I may.
William H. Rehnquist: Yes, please do.
Richard Barrett: First of all, Cox spoke specifically that it was distinguished from holding an open public meeting. Jameson v. Texas a year later said that Cox dealt with the convenience of the traveling public. It stood for the idea that you would have a permit so that competing interests wouldn't occupy the same space at the same time, we have no quarrel with that argument. However, Your Honor, in Murdock--
Byron R. White: Cox just dealt with a parade, I mean, with a meeting in the streets, and specifically noted that there was no question of passing out literature or solicitation or anything like that.
Richard Barrett: --Correct.
Byron R. White: So we are just talking about a... and Murdock was something else again.
Richard Barrett: Murdock, Your Honor, if it please the Court, laid down the rule to qualify Cox so that it said that when there was no right for there to be a charge or a tax upon the poor, it also--
Byron R. White: Yes, but Murdock didn't deal with a parade. It didn't say that. It didn't deal with a parade at all, Murdock.
Richard Barrett: --No, Your Honor, it simply stated--
Byron R. White: This was handing out literature.
Richard Barrett: --Yes, Your Honor.
William H. Rehnquist: The case in point here is Cox because this is a parade and Cox dealt with a parade. Murdock didn't deal with the situation you have here or with the situation that Cox dealt with.
Richard Barrett: If it please the Court, Your Honor, this is not a parade. There is no march involved here. This is simply using the traditional quintessential public forum for an open-air meeting. It is not a parade.
William H. Rehnquist: It entails the same sort of expenses for the county as a parade would.
Richard Barrett: Well, Your Honor, perhaps the expense is the right of the poor to assemble in public, and I submit that the expense is cutting off the right of the poor; also under Terminello in 1949 which is the classic case of the heckler's veto, because the cost then would be if the demonstrator says--
William H. Rehnquist: I am not at all sure Terminello is even good law.
Richard Barrett: --I am sorry, Your Honor.
William H. Rehnquist: I said I am not at all sure Terminello is even good law anymore.
Richard Barrett: Perhaps I can tell you how in Forsyth County when demonstrators threatened, and also in Atlanta which is cited somewhat in the appendix, when demonstrators said they were going to come and throw rocks and throw bricks, then the police had to respond to that emergency and then under the county's argument, the would-be assemblers or paraders as the case may be, are then to be charged for the cost of defending against the hecklers? I submit Your Honor that that simply is a heckler's veto. It is as onerous today as it is in 1949. Next of course was the Alabama case, 19--
Anthony M. Kennedy: I am not sure of the theory of your case. Suppose that an individual or a group that wanted to use the public square could afford the fee. Could the municipality charge that fee consistent with the Constitution?
Richard Barrett: --No, Your Honor.
Anthony M. Kennedy: Well, then it has nothing to do with the poor.
Richard Barrett: Nothing to do with which?
Anthony M. Kennedy: Then it has nothing to do with the distinction in rich and poor.
Richard Barrett: I would agree with that, Your Honor.
Anthony M. Kennedy: So then we shouldn't be talking about the poor, and that was the whole thrust of your argument as I understood it from--
Richard Barrett: We are talking about the poor because we have a group of individuals who were denied under--
Anthony M. Kennedy: --But the principle of the case that you are arguing has nothing to do with that, then why don't we proceed to the principle that you are arguing, and I would like to know what that principle is.
Richard Barrett: --Well, we have several, Your Honor. The poor is one of them, and I cite the poll tax cases, the cases where people applied to run for office and were waived a fee. In this particular case, I--
Antonin Scalia: Were they allowed to charge poll taxes to the rich?
Richard Barrett: --Certainly, Your Honor.
Antonin Scalia: Is that right?
Richard Barrett: I would think.
Antonin Scalia: I didn't know--
Richard Barrett: I mean before the Court's decision they could, of course.
Antonin Scalia: --No, I mean afterwards.
Richard Barrett: No, sir.
Antonin Scalia: So once again, as Justice Kennedy says, it doesn't support your poor argument. What supports your poor argument?
Richard Barrett: In this particular case, Your Honor, the assets of the organization were $90 and some cents. It simply couldn't pay the fee, even if it would have paid the fee.
Antonin Scalia: Right, and if it could have paid the fee, you would have no problem.
Richard Barrett: Yes, we would, Your Honor. We would have paid the fee.
Antonin Scalia: Then why don't you talk about your problem instead of raising this poverty thing which has nothing to do with your case, does it?
Richard Barrett: It does in this respect--
Antonin Scalia: Especially since there is a waiver for poverty in the ordinance.
Richard Barrett: --May I address that, Your Honor?
Antonin Scalia: Sure.
Richard Barrett: Let's say for a moment that you see, here is the courthouse green. The question is, someone comes up, a veteran from another State. He says I want to march today or I want to assemble. He says, well, you didn't fill out an affidavit of poverty. What about his rights to travel, Your Honor? Let's say then that someone comes up and they say, I don't want my name to be known. I don't want to sign an affidavit of poverty under the privacy provisions of the Constitution. He can't assemble then. What about someone that comes up and says, all right, I want to sign--
William H. Rehnquist: Whoa, what are the privacy provisions of the Constitution?
Richard Barrett: --Well, I am speaking of Brown v. Socialist Workers' Party, the '74 nuclear freeze campaign of Ohio which... and of course, the NAACP v. Alabama that based it on freedom of association, that says that the right of people to protect their freedom of association is a privacy right, Your Honor. So someone comes up and says I--
Anthony M. Kennedy: Counsel, you have 30 minutes. You can use the time any way you want I suppose; we still haven't gotten to your theory of the case.
Richard Barrett: --All right, Your Honor, I was trying to--
Anthony M. Kennedy: I would like to know why this ordinance is invalid if someone can afford to pay the fee.
Richard Barrett: --In this particular case, the convenience that I am speaking of, I would like to perhaps finish what I was saying and then I will address that the best way I can, Your Honor. Someone comes up and you have to sign an affidavit, well, who is going to pay the notary and what is the notary fee? The county has said that if you have 2,000 members in your organization, let's say all across the country, do they all have to be notified? Do they all have to respond and then, do they all sign affidavits? Who is going to pay the notary fee for that? It is a tax and a burden on the poor. Also, Your Honor, I cited the poll tax case, that was the Harper decision in 1966, and I might as well mention Shuttlesworth in 1969 which ruled that the right of assembly is reaffirmed. In 1972, Bullock, there can be no fees on the poor to abridge constitutional rights. Then in 1983, Grace, the public forum defined, and here you have it, Your Honor, and also in 1988, the Boos, case which stood for the proposition that there can't be regulations as a guise to abridge speech. Perhaps this is the classic Stamp Act rebellion as the Forsyth County rebellion. It was said at the time of the Stamp Act that if you simply paid a fee, a nominal fee, you could write whatever you wanted, but you had to pay for the paper to put the printing on, as was said, Your Honor--
Antonin Scalia: But newspapers don't impose a burden on a little town or a little county. Your group wants to come in and stage a march that is going to impose enormous expenses upon the citizens of this little town. I don't see any relationship at all to a stamp tax, a tax for documents that aren't causing any burden. This little county is simply trying to not be burdened by your organization who wants to stage a parade. Now you are welcome to stage a parade they say, but it is going to cost us some money and since it is your parade, you ought to pay for it. It seems reasonable to me.
Richard Barrett: --And they said the same thing in the Stamp Act, and here they are in essence saying, all you have to do is pay a fee to stand on the steps.
Antonin Scalia: There were no expenses involved in the Stamp Act. They are not charging you an arbitrary fee. They are saying your causing us a good deal of expense for your parade. I suppose they could give you the option of perhaps... would that satisfy you if they say you can waive police protection?
Richard Barrett: I hadn't thought of that, Your Honor.
Antonin Scalia: Is that the only thing wrong with this statute, that it doesn't permit you to waive police protection?
Richard Barrett: If it means that you would waive your own life to appear in public in the United States of America to deliver a speech in the quintessential public forum--
Antonin Scalia: This is a little tiny county, they have one policeman, and you want to bring in 10,000 people to march. What are they supposed to do, hire a police force for you?
Richard Barrett: --No more than they would at the Capitol of the United States, Your Honor, which has no charge, no more than they would on the steps of this very Court.
Antonin Scalia: I don't understand what you mean, no more than they would--
Richard Barrett: There is no fee under the Constitution in freedom, and we would submit, Your Honor, there is no pay-as-you-go in patriotism.
Antonin Scalia: --I don't see anything in the Constitution that says that reasonable costs cannot be assessed against people, just like the radio. If you want to use it, you have to pay for it.
Richard Barrett: That was the decision in Murdock, Your Honor, there can be no fee for a right enjoyed under the Constitution.
Antonin Scalia: We are not talking about a fee. We are talking about covering the expenses that you produce.
Richard Barrett: And of course, we respond that is the heckler's veto, Your Honor, that if the expenses are occasioned by having hostile counterdemonstrators, then the fee escalates beyond calculation and then the right of assembly is abridged, and the right of the people to assemble will not be abridged, Your Honor.
Antonin Scalia: And you don't think that the monetary limit stops that problem?
Richard Barrett: Well, actually, there isn't a monetary limit. You notice there is the toilet charge, Your Honor. There is the medical charge. Since the county has already said in its brief that they regard this speech as deficient and they say that the only reason for the permit fee in their brief is to rid the public forum of unwelcome harassment, well, then this speech must be so nauseating that they would have to charge for more toilets for the public that is going to vomit at the assembly that is wanting to be put on.
William H. Rehnquist: Mr. Barrett, I think you better calm down a little and address the issues. I think we have heard enough rhetoric.
Richard Barrett: It's an emotional issue based on humanity, Your Honor.
William H. Rehnquist: I suggest you try to keep your emotions under control and try to discuss the merits of the case.
Richard Barrett: Certainly, Your Honor.
Antonin Scalia: I still don't quite understand why the $1,000 limit does not apply. You say the $1,000 limit is not applicable?
Richard Barrett: Under the ordinance it really isn't a cap at all, Your Honor, and it is a--
Antonin Scalia: Why is it not a cap?
Richard Barrett: --Because they have the toilet fees, the medical fees, the miscellaneous fees, which they say in the administrator's opinion--
Antonin Scalia: They had nothing to do hecklers. You are talking about the heckler's veto.
Richard Barrett: --Yes, sir.
Antonin Scalia: You say the more hecklers you have, the more police there will have to be, so the fee could be enormous. But there is a $1,000 limit on the police charges, isn't there?
Richard Barrett: That is not what I stated, Your Honor, I thought we were talking about two separate things.
Antonin Scalia: What did you say then?
Richard Barrett: I said that there is not a $1,000 cap, there can be more than $1,000 under some provisions in the ordinance.
Antonin Scalia: But not for hecklers.
Richard Barrett: No, sir, not for hecklers. Although, supposedly--
Antonin Scalia: So your heckler's fee argument is gone.
Richard Barrett: --Supposedly, if there were more hecklers there might have to be more toilets, there might have to be more--
Antonin Scalia: Hecklers produce toilets?
Richard Barrett: --Hecklers produce more than toilets, Your Honor. Notice, Your Honor, that the other additional fees are couched in what they call the administrator's opinion, and there simply seems to be too much discretion in that, Your Honor. And then, Your Honor, for example, let's say that--
John Paul Stevens: Mr. Barrett, let me just clear up one thing.
Richard Barrett: --Yes, Your Honor.
John Paul Stevens: You have not, though, in this case, challenged these other fees, have you?
Richard Barrett: Which other fees, Your Honor?
John Paul Stevens: The toilet fees, and you mentioned there are a bunch of others than could get the cap over $1,000.
Richard Barrett: We have challenged the entire thing, Your Honor, saying that there shouldn't be any fee at all, not a nominal fee, any more than there should be on the right to vote or the right for a candidate to run for a public office because he is indigent, or the right of a Jehovah's Witness to hand out literature without having to pay $1.00 a day.
John Paul Stevens: Are you willing to have us decide the case, so the only fee at issue is this potential fee of up to $1,000.
Richard Barrett: Although that is the issue before the Court as it came from the Eleventh Circuit, Your Honor, of course, if the Court in its wisdom sees fit, we would like to be able to say that the Court has said that the modern free speech cases have ruled out fees or taxes that burden the First Amendment.
John Paul Stevens: But all I am saying, if I understand your argument correctly, you would make the same argument even if there were no other fees at all?
Richard Barrett: Yes, we would, Your Honor. And then as a follow up to that, Your Honor, let's say that the $1,000 is said to be reasonable perhaps. Well, if it's reasonable, then of course it could be $2,000 or $5,000, and then there is the city jurisdiction which has the streets around the courthouse. So there is another $2,000 or $3,000 or $4,000 or more, and then of course there is the State, its gormandizing attitude toward its potential user fees, and then you have to cross the State highway perhaps, another. And there is the burden, there is the burden, outlawing if you will, demonstrators who are not able to pay to speak or to assemble.
Antonin Scalia: I assume that the rule, your no charge allowed, it doesn't just apply to political groups such as yours, I suppose it would apply to entertainment, if you wanted to have an open air rock concert, I suppose you couldn't charge.
Richard Barrett: The cases have distinguished that to some extent, Your Honor, because that would be a commercial enterprise, whereas this is not a commercial enterprise. This is purest speech in its most quintessential form.
William H. Rehnquist: What do you mean commercial enterprise-- --Mr. Barrett, in an opinion for the Court that Justice Kennedy wrote, Ward against Rock Against Racism, I think the Court said a concert like that did have, did come under protection of the First Amendment.
Richard Barrett: Yes, Your Honor, and it was distinguished from this case because it simply meant the volume could be turned down and in the lower courts, the original court said that that was the--
William H. Rehnquist: You have no quarrel with that-- --It wasn't distinguished on the basis that you suggested a moment ago, commercial versus other kinds of speech.
Richard Barrett: --No. That is not our argument, but that is an argument that has been made by some, we don't make that argument, Your Honor.
Antonin Scalia: You just made it.
Richard Barrett: I was saying it could be made, but I am simply just saying, we are not a commercial enterprise, and so therefore, in no sense would we say that--
Anthony M. Kennedy: Then I still don't know the answer to Justice Scalia's question. Why couldn't a rock concert be required to pay this fee? Please don't say that it is a commercial enterprise, because we have now gone through colloquy and established that that is not a valid ground for distinguishing the case.
Richard Barrett: --Yes, Your Honor.
Anthony M. Kennedy: So do you have a valid ground for distinguishing the case?
Richard Barrett: This case from Ward v. Rock Against Racism?
Anthony M. Kennedy: From the hypothetical of a rock concert wanting to come in and use this facility and having to pay the charge.
Richard Barrett: If it is the public forum, I would say the First Amendment and the right to petition the Government, the right to speak, the right to assemble bars any fees in that public forum, Your Honor.
Antonin Scalia: We just have to hope that it isn't our little town that they pick on to have the next big rock concert.
Richard Barrett: Well, perhaps, Your Honor, if someone, let's say Luke Perry of Beverly Hills comes to town and he is on the courthouse steps surrounded by young ladies seeking autographs, he would be welcomed with bureaucratic hosannas, but on the other hand, Jerry Brown, not the one running for President, but the leader of the Forsyth County parade, he is on the steps wanting to collect signatures to petition the Government. He meets with bureaucratic boondoggles. That is the content neutrality that we object to. On the other hand, the county says, well, he can meet in the basement of the courthouse. Your Honor, spiderwebs and fluorescent lights don't suffice for open air and fresh air of freedom.
William H. Rehnquist: Now the Eleventh Circuit didn't decide the case on the basis that the ordinance wasn't content-neutral, did it?
Richard Barrett: They said simply that on its face, $1,000 was not nominal and they read Murdock to say that it must be nominal.
William H. Rehnquist: Do you defend that result here entirely apart from content neutrality and that sort of thing?
Richard Barrett: I have to defend it because we want to win the case--
William H. Rehnquist: Well, sure.
Richard Barrett: --But I also argue alternatively, Your Honor, in our brief, we say that any fee, nominal or otherwise, abridges the First Amendment in this case. Your Honor, my mind is in torment because I am looking for the compelling reasons which may be permissible to abridge freedom of speech and assembly in the quintessential public forum. Is it the suppression of vice? No one is bringing placards that are obscene to the courthouse. Is it the suppression of litter? Is it not suggested here by the record. Is it the suppression of subversion? Are the secrets of the Patriot missiles being read on the steps? Is the courthouse decrepit to where bricks are falling down and safety is an issue? None of these issues, Your Honor. There might be some compelling reasons there, but not here.
Byron R. White: Do you object to having to get a permit?
Richard Barrett: Not, Your Honor, if it is simply to notify the authorities, to prevent competing interests from occupying the same space at the same time, as Cox said, for control.
Byron R. White: Let's assume that that costs the county some money. Do you think... you would apply here, alternate ground, no fee whatsoever?
Richard Barrett: The record will show, Your Honor, that we--
Byron R. White: Right?
Richard Barrett: --The record shows we offered to pay $1.00 or $2.00 to the county for whatever charge--
Byron R. White: But you would not think that they... let's assume that they could prove beyond a reasonable doubt that it was going to cost them $50.00 to process your permit and you would say they could not charge that money?
Richard Barrett: --That's correct, and I cite in the brief, we did a random survey--
Byron R. White: That certainly is inconsistent with Cox.
Richard Barrett: --Cox was confined, if it please the Court, to a very limited fact circumstance, and in Murdock--
Byron R. White: They were talking about a parade. They weren't talking about handing out literature or making speeches. And that is what is involved in this case, is an occupation of the streets.
Richard Barrett: --They mentioned, for example, a circus where they had spectators, but Your Honor, the differentiation here is we are talking about hostile counterdemonstrators that are threatening the safety of those exercising their First Amendment rights.
Antonin Scalia: But you wouldn't apply... you wouldn't acknowledge the permit requirement anyway. How can you get a permit if you not willing to give me your name? You say you don't have to give anybody your name. Who do they make the permit out to?
Richard Barrett: We have no problem giving them our name, Your Honor. We are saying that that--
Antonin Scalia: But that is part of your First Amendment argument, you can't ask anybody his name.
Richard Barrett: --Well, Your Honor, if it please the Court, if there is someone that wants their name not to be divulged, there should be some way in the ordinance to protect their confidentiality as an individual. We have no problem because we are registered with the State and we are a corporation.
Antonin Scalia: But the facial challenge to the statute is it is invalid because it would require somebody to give a name to get a permit, that make the whole thing bad, doesn't it?
Richard Barrett: If there is a valid exception where the confidentiality could be respected, Your Honor, then there would be no challenge: I find no acknowledgement, Your Honor, in the county's argument whatsoever of the public forum, and I noticed a bit of a Freudian slip on counsel when he said it is a tax, and he corrected himself. But it is a tax, Your Honor, and I simply draw the Court's attention in what meager abilities I have to Forsyth County or any county and ask what do we see here when this assembly takes place, and how valuable is that to America? I see Americana and I see the stump speech. I can't put a price on it, but I see the furrowed brow of labor listening. I see the tender graces of motherhood feeling. I hear the assertion of youth speaking out.
Antonin Scalia: I see the mother paying out in municipal taxes what she might be buying food for her child with. [Laughter]
Richard Barrett: Balance that if you will, Your Honor, between perhaps the sharpening right there of democracy's rusty instruments. Can I speak of the spoken work and the sparks that come from it? Can I speak of reason and the glitter that lightens our minds? Can I speak of the shiny sword of reason that ousts tyranny from among us? Your Honor, they have spoken of money. May I speak of freedom? They have spoken of convenience. May I speak of happiness? Someone asked if I would pay a fee. Your Honor, write this epitaph, if you will, on my tomb: The road not taken, but not the speech not given. I have been asked if it applies to the rich--
William H. Rehnquist: How about the argument not made? [Laughter]
Richard Barrett: --Perhaps. As the Bible says, Your Honor, faith comes from hearing. And as Martin Luther said, here I stand, I can do nothing else. To the weight of the coin, if you will, of King George III; Rockefeller's greenbacks; Jose Williams' coffers... the ones who, by the way, the record will show, could march, perhaps could afford the fee, there must be the fulcrum to that weight, and that is the First Amendment. And I think it says to us over the ages, no dearth of purse shall curse our birth; who picks the pockets of the poor or the nationalist, gets no recoupment whatsoever, Your Honor; but who weans the humblest of our citizens on that mother's milk of the First Amendment makes us a stronger Nation and an ennobled people. If we were to freeze this Court in the ice of 1941, Your Honor--
Antonin Scalia: Rock concerts too, go with all of this, right?
Richard Barrett: --Well, Your Honor, I am a classical music fan, but I am prepared to let Mick Jagger play so long as Jerry Brown can petition the Government in the traditional public forum, yes, Your Honor. If I were speaking about law that is laid low in a cold coffin, Your Honor, then I would speak of the past and the glories of the law that were. But I came here today, Your Honor, because I regard the law as youthful and zealous, and therefore, may I give you my simple invocation to glories of the law yet to come, and it is this: Toward the uplands where the American people assembles without fees; where the American Nation speaks without fear; and where the American way of life proceeds without end.
William H. Rehnquist: Thank you, Mr. Barrett. Mr. Stubbs, your time has expired. The case is submitted.