Local Authorities

Permitting System

By claiming authority to punish speech that occurs without prior government approval, permitting systems represent a drastic departure from ordinary First Amendment principles. Yet there is widespread agreement that permitting regimes can be necessary to create the conditions for robust and orderly public expression.²⁸¹ Permits enable governments to “coordinate multiple uses of limited space,”²⁸² allocate police protection and emergency services, ²⁸³ and preserve “public access to thoroughfares and public facilities.”²⁸⁴ For these reasons, the Supreme Court has clarified that content-neutral permitting requirements are to be analyzed as time, place, and manner regulations rather than as presumptively unconstitutional prior restraints.²⁸⁵

This Section examines the most frequently litigated constitutional issues that arise throughout the permitting process. One key lesson emerges: Regardless of the type of provision challenged—whether a generally applicable regulation or a permit condition—speech restrictions must be commensurate with the governmental interests cited to justify them.

The Law of Permit Issuance: Substantive and Procedural Constraints

When Can Permits Be Required?

Not all expressive activities implicate the types of governmental interests that justify permitting regimes. For example, the Ninth Circuit has held that municipalities may not require a permit merely because an event would “require the provision of city public services,” given that some services—such as litter abatement—are “trivial” in relation to the corresponding burdens on expression.²⁸⁶ Nor have courts accepted arguments by governments that they must be forewarned when very small groups intend to demonstrate in public. Instead, numerous courts have struck down permitting requirements that failed to include an exception for small gatherings.²⁸⁷

Courts have taken care, however, not to decree a strict “numerical floor /[i.e., of persons engaged in expression/] below which a permit requirement cannot apply.”²⁸⁸ That is because the government’s interests may vary according to the nature of the relevant property; streets and sidewalks, for instance, are more vulnerable to congestion than are open spaces such as parks.²⁸⁹ In lieu of specifying a numerical threshold for particular properties, governments may require a permit “when /[c/]ity services are required” due to “interfere/[nce/] with normal vehicular or pedestrian traffic.”²⁹⁰ Linking the permit requirement to its practical justification in this way avoids any tailoring problem, though at the expense of providing precise notice to regulated persons.

When permitting requirements are drafted so loosely that they contain no ascertainable standard, they may be challenged as unconstitutionally vague. Vagueness doctrine requires that a legal provision “provide a person of ordinary intelligence fair notice of what is prohibited” and not be “so standardless that it authorizes or encourages seriously discriminatory enforcement.”²⁹¹ Several permitting ordinances have run afoul of this principle for using broad, undefined, and otherwise subjective phraseology.²⁹²

What Information Can Be Required?

For the permitting process to function effectively, governments must be able to insist that applicants provide relevant information concerning their proposed events. These requirements are usually uncontroversial and rarely generate litigation. But the First Amendment limits the types of information that applicants can be forced to disclose in order to receive a permit.

Courts have upheld informational requirements that served a valid governmental interest, such as maintaining a point of contact for logistical and cost-shifting purposes.²⁹³ This means that permit applicants who wish to hold public demonstrations are not entitled to conceal their identities from the government. But the permitting process cannot be used to extract unnecessary information about persons who wish to exercise their First Amendment rights. For example, there would be no basis for requiring applicants to disclose their incomes, political affiliations, or Social Security numbers, or to identify each person intending to participate in the proposed event. Moreover, one court has held that applicants cannot be required to meet in person with governmental officials if other methods of consultation would be just as effective.²⁹⁴

When Can Permits Be Denied?

Most permitting regulations specify a set of circumstances under which permits must be denied (or must be revoked once granted). The Supreme Court has never articulated a framework for deciding which substantive grounds for permit denials violate the First Amendment. These restrictions arguably function as “manner” regulations, in the sense that speakers remain free to engage in expression that does not require a permit. Yet the authority to veto the manner of proposed expression before it occurs is an extraordinary power that could readily be misused.

There is little doubt that permit requests may be denied for reasons that track the underlying justifications for permitting systems—for example, when a permit has already been granted for the same time and place, or if the applicant’s proposed activities (as distinguished from protesters’ responses) would be unlawful,²⁹⁵ endanger the health and safety of surrounding persons,²⁹⁶ significantly inhibit pedestrian and vehicular traffic,²⁹⁷ or deprive the municipality of critical services (such as police protection) that could not be supplied through other means.²⁹⁸ Of course, denials on these grounds could be challenged on an as-applied basis if the government’s stated justifications were unsupportable. And it is uncontroversial that permits may be denied or revoked if the permitting system has been abused, as by providing materially false information in an application.²⁹⁹

On the other hand, courts have held that permit requests cannot be denied merely because an applicant has committed a crime³⁰⁰ or violated permitting regulations³⁰¹ in the past. The Fifth Circuit has emphatically rejected this “once a sinner, always a sinner” approach, deeming it grossly mistailored to any valid governmental interest.³⁰² Localities should also keep in mind that certain justifications for denying permit requests—such as interference with vehicular or foot traffic—would be implicated by a substantial portion of events subject to permitting regulations. It would be unconstitutional to invoke those facially neutral rationales selectively to deny some permit applications, but not others.³⁰³

Advance-Notice Requirements and Decision Deadlines.

The same interests that justify the creation of a permitting system also require that the government have some amount of lead time to process applications and plan for large events. As the Ninth Circuit has explained, it “take[s] . . . time to coordinate the various demands on the streets, sidewalks, and parks; assess what services (such as additional police) are needed; contact those services; ensure their availability; and allow those services to prepare for the events.”³⁰⁴ Yet requiring would-be demonstrators to disclose their intentions “ha[s] the tendency to stifle” core First Amendment activity³⁰⁵—especially for speech that responds to late-breaking events. Courts have thus taken “special care” in assessing governments’ stated reasons for requiring advance-notice periods of a particular length.³⁰⁶

This unusually searching form of review has led to the facial invalidation of provisions requiring permit applications to be submitted 60 days,³⁰⁷ 45 days,³⁰⁸ 40 days,³⁰⁹ 30 business days,³¹⁰ one month,³¹¹ 30 days,³¹² 20 days,³¹³ 10 business days,³¹⁴ seven days,³¹⁵ and even five days³¹⁶ in advance of proposed events. These decisions have emphasized the government’s failure to justify the precise length of the challenged notice period,³¹⁷ the absence of outlets for spontaneous speech,³¹⁸ and the less-restrictive practices of comparable jurisdictions.³¹⁹ And at least one court has held that the availability of a “good cause” exception will not save an excessive advance-notice requirement, inasmuch as applicants cannot be required to “shoulder the burden” of seeking waivers from unconstitutional requirements.³²⁰ By contrast, courts have upheld advance-notice periods of nine days,³²¹ two days,³²² and less than one day.³²³

Despite these particular outcomes, existing precedents should not be understood to foreclose the use of deadlines longer than just a few days. Instead, notice periods are likely to be upheld if they can be shown to be reasonably necessary to enable adequate review and event preparation. This determination can be affected by a number of factors, including the overall number of applications that must be processed³²⁴ and the amount of time needed to coordinate municipal services for particular types of events.³²⁵ In addition, exempting spontaneous expression from general permitting rules would eliminate one harmful effect of advance-notice requirements that courts have found objectionable. But the category of spontaneous speech cannot be defined so narrowly as to leave speakers with constitutionally inadequate methods of responding to fast-breaking events.³²⁶

Judicial skepticism of lengthy advance-notice periods would seem to overlook a crucially important variable: what happens after an initial decision is rendered. If a permit is granted, the permittee will almost certainly need some amount of time to complete required event preparations (including consulting with local authorities). If an application is instead denied, the applicant must have time to seek effective judicial review of that determination, lest governments be allowed to suppress disfavored viewpoints by running out the clock on permit applications.³²⁷ And it would be anomalous for First Amendment doctrine to police the precise length of advance-notice requirements—to ensure that application periods are not unnecessarily prolonged—while simultaneously allowing governments to leave applications pending longer than necessary.³²⁸

Unsurprisingly, then, several courts have either held or presupposed that the First Amendment requires some deadline for acting on permit requests.³²⁹ Yet other decisions have reached the opposite conclusion.³³⁰ As a result, it remains unclear whether permitting regulations must contain built-in deadlines for acting on applications. To avoid potential First Amendment pitfalls, jurisdictions would be well advised to specify that permit applications will be deemed granted if not acted on within a specified time period.³³¹

And more broadly, governments should not hesitate to prescribe advance-notice periods that build in sufficient time for effective judicial review³³² and the completion of back-end logistics. Because not all events require the same amount of preparation, one-size-fits-all approaches may be especially vulnerable on First Amendment grounds.³³³ The surer course would be to create multiple advance-notice requirements that are tailored to the logistical challenges presented by various types of gatherings. These factors could include the size and location of the proposed event and whether additional governmental services would be required.

Prioritization of Competing Applications.

When multiple applicants request to use the same property for the same time, governments must decide how to prioritize these overlapping applications. Four general approaches are possible. First, priority could be given to those who apply the soonest. Such a first-come, first-served regime would be easily administrable and would avoid any prospect of content-based discrimination.³³⁴ But it would also invite manipulation by savvy actors whose foresight could deprive others of expressive opportunities.³³⁵ A second possibility would be to prioritize certain types of events—perhaps annually recurring or government sponsored events—and adopt a first-come, first-served approach for all others.³³⁶ In this scenario, the categories of preferred events should be carefully selected to avoid content-based distinctions.

Third, governments could accept applications on a rolling basis and then, at some pre-announced point in time, select a permit recipient at random from those who have applied for the same date (e.g., by lottery or a coin toss). Like a first-come, first-served approach, this plainly content-neutral method would pose no First Amendment problems.³³⁷ And fourth, permitting regulations could remain silent on how to choose among overlapping applications. This method, however, would seem to confer unbridled discretion on permitting authorities to elevate their preferred viewpoints and suppress disfavored ones, inviting First Amendment challenges.

Imposing Conditions on Permits

Permitting regimes may include conditions applicable to all permits issued thereunder, such as a list of prohibited items. They also may authorize local officials to impose additional conditions on particular permits in the interest of public safety. In either circumstance, the conditions would presumably take the form of time, place, and manner restrictions, the violation of which would justify revoking the permit and canceling the event.

A distinguishing feature of permit conditions is that they apply only to the person or group to whom the permit is issued. If officials wish to regulate the behavior of other demonstrators, they must do so through generally applicable local laws or event-specific orders. In fact, to the extent that permit conditions burden a permit-holder’s constitutional rights, it would almost certainly be unconstitutional not to apply those same restrictions to all attendees.

Three common types of permit conditions are analyzed below: ones that (1) require the proposed event to be relocated, (2) alter the event’s timing, or (3) prohibit certain items from being brought to the event. As always, the constitutionality of each type of restriction will depend on whether it is suitably tailored to advancing the government’s stated interest.

Change of Location

The First Amendment limits the government’s ability to issue permits that are contingent on an applicant’s willingness to change the location of its proposed event. If the reasons for imposing such a condition are content-neutral, the restriction must be “narrowly tailored to serve a significant governmental interest” and also “leave open ample alternative channels for communication of the information.”³³⁸

Each of these requirements has been treated as having real teeth in this context. As some courts have concluded, entirely forbidding demonstrations in specified areas may be substantially more burdensome than necessary to serve the government’s goals.³³⁹ Courts have also found certain alternative locations to be unsatisfactory, either because a particular site was integral to a group's message³⁴⁰ or because its intended audience could not be reached elsewhere.³⁴¹ Far more often, however, alternative areas have been deemed constitutionally adequate despite being practically inferior in some respect.³⁴²

One justification for altering the site of a planned demonstration might be that the applicant's preferred venue could not accommodate the expected number of attendees. The D.C. Circuit has suggested that "[limiting] the number of individuals who may demonstrate simultaneously" would be "substantially less restrictive" than forbidding demonstrations altogether in particular areas.³⁴³ But this alternative fails to account for the perspectives of persons who are excluded from assembling in the original location due to crowd-size restrictions. If the number of expected attendees is so large as to threaten substantial harm, governments should consider giving applicants the option of either holding their events elsewhere or capping the number of attendees.

Suppose instead that the government required a change of location for content-based reasons—for example, by altering a proposed parade route due to credible threats of violence from surrounding protesters. Such a restriction would violate the First Amendment unless it were the least restrictive means of furthering a compelling governmental interest.³⁴⁴ Despite the obvious drawbacks of effectuating this form of a "heckler's veto," the overwhelming interest in public safety may sometimes justify otherwise-forbidden measures. As the D.C. Circuit has put it, "/[w/]hen the choice is between an abbreviated march or a bloodbath, government must have some leeway to make adjustments necessary for the protection of participants, innocent onlookers, and others in the vicinity."³⁴⁵ But such a dire choice must actually exist if content-based "adjustments" are to be tolerated.³⁴⁶

Change of Time

Permit conditions may also be used to alter the starting or ending time of a proposed event. If these conditions are imposed to conform with generally applicable regulations—for example, a ban on demonstrations before 8 AM and after 9 PM—the underlying regulations will be subjected to the First Amendment test reserved for "time, place, and manner" restrictions. Courts have upheld at least three "time" limitations of this sort,³⁴⁷ but other decisions demonstrate that the test's tailoring requirement has real practical bite.³⁴⁸ These cases tend to be highly fact-specific and focus on whether the government's interests are actually (and narrowly) served by adjusting the timing of planned expression.

Another reason to alter the timing of a proposed event would be to "limit [its] duration,"³⁴⁹ whether to conserve needed public resources or to ensure the forum's availability for other permit applicants. Any such restriction, of course, must be tailored to the stated justifications for imposing it³⁵⁰ and afford the permittee a constitutionally "ample" amount of speaking time.

Prohibited Items

If local officials have reason to believe that violence could erupt at a permitted event, they may wish to append a list of prohibited items as a condition to the permit. Doing so could require analysis under both the Second Amendment and state-level firearms-regulation preemption statutes, as outlined above.³⁵¹ Prohibiting specific objects could also burden First Amendment rights in two ways: by conditioning those rights on attendees' willingness not to bring certain desired objects, and by prohibiting the carrying of items that would be wielded for expressive purposes. If this type of event-specific permit condition is used, officials should issue an order that applies the same restrictions to all persons attending the event. Otherwise, the condition would function as an impermissible speaker-based distinction.³⁵²

There is no doubt that the First Amendment right to engage in protected expression by carrying particular items in public must sometimes yield to the demands of public safety.³⁵³ As always, whether a restriction passes constitutional muster will depend on whether the government has regulated unduly broadly or narrowly in relation to its stated goals. Relevant to this analysis will be the forbidden objects' propensity to be used as weapons, their use as weapons in the past,³⁵⁴ their centrality to demonstrators' expressive objectives,³⁵⁵ and the presence or absence of a prohibition on objects with a similar functionality.³⁵⁶

In addition, there is no clear answer in the case law to whether security restrictions motivated by a desire to prevent violence should be categorized as content-based or content-neutral. The Seventh Circuit has deemed a weapons restriction to be content-neutral, finding that it targeted only "the possibility that attendees... would injure themselves, others, or property," rather than "the content of the views aired at the rally."³⁵⁷ But two other circuits have categorized security measures as content-based, given that they were ultimately traceable to the dangers emanating from participants' hostile reactions.³⁵⁸ Regardless of which framework applies, it is unlikely that a court would upend local officials' good-faith efforts to protect life and limb absent a significant failure of tailoring.³⁵⁹

Imposing Financial Conditions Through the Permitting Process

Although public demonstrations are a vital part of our democratic culture, these gatherings can prove immensely costly. They often require the provision of extra governmental services to maintain public order—especially when scheduled events attract large crowds of protesters. The resulting expenditures can prove crushing to local jurisdictions obliged to preserve both public safety and fiscal stability. To reduce these burdens, many governments condition the issuance of permits on various forms of financial accountability. Applicants are often required to offset the costs of providing various services, to insure against personal injury and property damage, and to sign indemnification agreements.

Each of these requirements can be constitutional under certain circumstances, but the First Amendment imposes four significant limits on governments' ability to implement them. Permitting authorities may not:

(1) charge more than necessary to serve a valid state interest; (2) tie the cost of obtaining a permit to the content of an applicant’s speech; (3) exercise unfettered discretion in deciding how much to charge; or (4) charge an amount so large as to prevent the applicant from speaking in an effective manner

The second of these rules is by far the most consequential, as it can create enormous disparities between a government's actual costs and the costs it may constitutionally recoup. This Section explains how governments can avoid running afoul of First Amendment doctrine when imposing financial conditions—however modest they may be—through the permitting process.

Cost-Shifting and Liability-Shifting—When Permissible

Costs of Providing Governmental Services

In Cox v. New Hampshire (1941), the Supreme Court confirmed that localities may charge variable fees corresponding to the actual costs of "maint[aining]... public order" at permitted events.³⁶⁰ This statement cannot be interpreted literally in light of later decisions forbidding content-based recoupment.³⁶¹ But as long as the content of a permittee's message has no bearing on the amount charged, governments enjoy considerable "flexibility of adjustment of fees" to offset the burdens of providing extraordinary public services.³⁶² Under modern parlance, there is undoubtedly a significant governmental interest in recouping the costs of providing special equipment and facilities, as well as ensuring adequate policing, traffic control, sanitation, and post-event restoration.

Many cases have upheld this type of cost-shifting pursuant to permit conditions.³⁶³ And even decisions invalidating permit fees as content-based have explicitly reaffirmed the validity of content- neutral cost recoupment.³⁶⁴ As a result, there is no dispute that permit fees may be imposed to defray these substantial expenses.

Such fees, however, must align with the permitting jurisdiction's actual costs; otherwise, the fees would not be narrowly tailored to serve the government's interests. For example, it would be unconstitutional to charge a fixed fee unrelated to the government's true expenses³⁶⁵ —even for the purpose of deterring frivolous requests.³⁶⁶ Nor may a permittee be charged by one jurisdiction for services that another jurisdiction has committed to providing by way of assistance.³⁶⁷ Similarly, if the estimated costs of furnishing additional services exceed the permitting jurisdiction's actual costs, any excess prepaid amounts must be reimbursed to the permittee.³⁶⁸

Costs of Administering Permit Systems

As the Supreme Court also has made clear, permit applicants may be charged a fixed fee that covers the administrative costs of processing their applications.³⁶⁹ These can include the logistical expenses of "planning a route that is safe and secure" and "that has adequate personnel to provide traffic control and police protection."³⁷⁰ A corollary of this principle is that an application fee will be invalidated if the government cannot demonstrate that the fee corresponds to its actual costs in processing permit applications.³⁷¹

Insurance Requirements

The Supreme Court has suggested that permitting systems may be used to "assure financial accountability for damage caused by [an] event."³⁷² Perhaps the most effective method of securing financial accountability is to require permittees to purchase event-specific liability insurance. The Court itself has never addressed when such a requirement might violate the First Amendment. Lower courts, however, have not hesitated to invalidate insurance-related conditions on First Amendment grounds. These decisions should instill caution in governments considering whether and how to implement this strategy.

Decisions upholding insurance requirements have generally done so in narrow, case-specific ways. For example, the Seventh Circuit rejected a facial challenge to a permitting regulation that required applicants to obtain liability insurance in an amount determined by "the size of the event and the nature of the facilities involved."³⁷³ The court's decision did not rule out the possibility of as-applied challenges to insurance requirements that are excessive in relation to the risk posed by a particular event. And the Ninth Circuit has, on two separate occasions, upheld provisions that gave permittees the option of purchasing insurance, signing an indemnification agreement, or redesigning their proposed events to minimize specific hazards highlighted by the City Manager.³⁷⁴ Neither opinion indicated whether an insurance requirement as such would pass constitutional muster.

Far more often, courts have struck down insurance-related conditions—usually due to a failure of tailoring.³⁷⁵ These decisions have rejected unduly large coverage amounts, demanding a connection between the government's liability risks for a particular event and the size of resulting insurance requirements.³⁷⁶ Conversely, one such requirement has been struck down as under-inclusive (i.e., for exempting certain events that equally implicated the interests purportedly justifying additional charges).³⁷⁷

Moreover, courts have invalidated insurance requirements upon perceiving that the circumstances rendered any amount of insurance unnecessary. In these cases, a permitted event did not implicate the government's asserted interests;³⁷⁸ a permittee had taken precautions to reduce the potential hazards posed by its events;³⁷⁹ and insurance requirements proved duplicative of state sovereign immunity,³⁸⁰ Tort Claims Act legislation,³⁸¹ and the government's existing insurance arrangements.³⁸² Even more drastically, some courts have struck down insurance requirements after concluding that the government's interests could be served less restrictively by applying existing civil and criminal sanctions to wrongdoers.³⁸³ This rationale—if accepted—would virtually eliminate the availability of insurance as a constitutionally permissible permitting condition.

In any event, permittees cannot be required to purchase insurance to guard against harms for which they are not legally responsible, such as "the reactions of third-party bystanders" or a government's own negligence.³⁸⁴ As the Supreme Court has explained, a person or entity engaged in First Amendment expression may not be held liable for a third party's unlawful conduct absent "a finding that /[it/] authorized... or ratified" that conduct.³⁸⁵

Indemnification Agreements

Many permitting regulations also require the permittee to indemnify, defend, and hold harmless the issuing jurisdiction and all of its officers, employees, and agents from any legal claims arising from the permitted activity. Because these liability-shifting devices "can have an inhibiting effect on speech,"³⁸⁶ they are subject to all of the First Amendment constraints applicable to insurance requirements. Most notably, indemnification agreements cannot require permittees to assume legal responsibility for the unlawful acts of third parties³⁸⁷ or governmental officials.³⁸⁸ Indemnification provisions that do not clearly exclude these outcomes are thus particularly susceptible to constitutional challenge.

Content-Based Financial Obligations Forbidden

Even if it would otherwise be constitutional to impose financial requirements as part of the permitting process, the cost of obtaining a permit cannot be contingent on the content of a permittee's speech or how other persons might react to it. Importantly, content-based financial obligations are per se invalid under current First Amendment doctrine, rather than subject to strict scrutiny.

The Supreme Court's decision in Forsyth County v. Nationalist Movement is the leading authority for determining whether financial requirements are content-based. Forsyth County struck down a system of adjusting permit fees to defray "the cost of necessary and reasonable protection of persons participating in or observing" permitted events.³⁸⁹ To determine the appropriate number of police—and thus the cost of maintaining public order—the administrator was required to "examine the content of the message that is conveyed" and "estimate the response of others to that content."³⁹⁰ The Court held that "/[s/]peech cannot be financially burdened" on content-based grounds—that is, depending on how listeners might respond to it.³⁹¹

Both before and since Forsyth County , courts have struck down a number of financial obligations as impermissibly content-based.³⁹² Some courts have even regarded insurance requirements as necessarily content-based, given that controversial speakers tend to be charged higher premiums³⁹³ (and may find themselves shut out of the insurance market altogether³⁹⁴ ). As the First Circuit has explained, insurance requirements "implicate/[/] issues of viewpoint discrimination" because "an insurance company may charge more depending on the group being covered."³⁹⁵

In addition, the law is unsettled on whether sweeping indemnification requirements are inherently content-based. Courts disagree over whether permittees may be required to defend the government against all suits relating to the permittees' conduct—even baseless ones—or only suits that are not frivolous in nature. The Ninth Circuit has upheld the former type of requirement, reasoning that the groundlessness of a legal claim "cannot be established until the defense has already been provided."³⁹⁶ The Tenth Circuit, by contrast, has reasoned that a duty to defend against even frivolous suits "raises the possibility of a 'heckler's veto,' by which third parties who disagree with the content of an organization's speech could... punish an organization after the event"³⁹⁷ through vexatious lawsuits.

Because most cost-shifting and liability-shifting clauses can be construed to require some consideration of content, jurisdictions would be well served to insert a "no-content" proviso in each of these types of provisions. These disclaimers—which clarify that neither a speaker's message nor the reactions of others may be considered³⁹⁸ — insulate permit fees and indemnification provisions from facial unconstitutionality (though not as-applied challenges) under Forsyth County.³⁹⁹

Courts have also held—at least in the context of parades and festivals—that administrators can guard against content-based invalidity by relying purely on information provided by applicants (e.g., the estimated number of attendees) in calculating the cost of necessary services or the amount of financial risk.⁴⁰⁰ One court has even applied this logic to public demonstrations, reasoning that when an applicant accounts for the possibility of a hostile audience, "it is not the [government] that is predicting the listener reaction to the content of the speech but the requesting party."⁴⁰¹ Notwithstanding this decision, it is questionable whether permitting authorities should be able to evade Forsyth County simply by requiring applicants to provide information about the very factors that officials are forbidden from considering.

Finally, courts have held that governments may selectively subsidize permitted events by waiving generally applicable permit fees for those events.⁴⁰² This is but another application of the general First Amendment principle that governments "may freely subsidize private speech of /[their/] choice, while not subsidizing other private speech."⁴⁰³ As long as these waivers amount to "singling out... favored messages for special treatment" rather than "singling out disfavored viewpoints for sanction,"⁴⁰⁴ such unequal sponsorship poses no First Amendment problem.

Unfettered Discretion Forbidden

As explained above in Section I.A.2.c, any financial conditions imposed through the permitting process must not result from government officials' standardless discretion. The Supreme Court has justified this rule—one that applies to all types of speech restrictions—as a safeguard against efforts to "suppress[] a particular point of view."⁴⁰⁵

Is an Indigency Exception Constitutionally Required?

Although some permitting systems expressly waive financial requirements for persons who are unable to afford them,⁴⁰⁶ not all jurisdictions have created an indigency exception. Without such an exemption, certain forms of expression—those for which a permit is required—will be accessible only to persons wealthy enough to afford them.

The Supreme Court has never considered whether an indigency exception is constitutionally required in this context. Four federal circuit courts have held that indigent applicants may be deprived of the ability to obtain a permit as long as ample alternative channels remain for their expression.⁴⁰⁷ A few other federal courts, however, have either held or strongly implied that indigent applicants cannot be treated less favorably due to their inability to pay requisite fees and costs.⁴⁰⁸

Content-Neutrality at Any Cost?

Because speakers with inflammatory messages cannot be charged larger permit fees on account of those messages, governments are "compelled to spend significant sums of money to preserve order and prevent violence at these rallies."⁴⁰⁹ First Amendment doctrine contemplates that permitting jurisdictions will bear these expenses—"however great"⁴¹⁰ —notwithstanding professed "budgetary constraints."⁴¹¹ At some point, however, "a city, county, or state will simply not have the available personnel and not have the available funds."⁴¹² This is especially true when controversial groups repeatedly return to the same city or town to stage expensive rallies. Bearing these costs in full may deprive local governments of critical resources that most communities would value more highly than the ability to engage in duplicative public demonstrations.⁴¹³

Does the Constitution require local governments to facilitate permitted speech at any cost, even if it drives them into bankruptcy? Under a strict reading of Forsyth County —one that does not account for extraordinary background conditions—the answer appears to be yes. But it is far from certain that courts would dutifully follow Forsyth County if doing so could threaten that "public order without which liberty itself would be lost."⁴¹⁴ As localities find themselves absorbing increasingly exorbitant costs, time will tell if the rule of Forsyth County is actually as unyielding as it appears.

Other Event-Specific Tools for Protecting Public Safety

Aside from using permit conditions, local officials may wish to take other measures—whether prophylactic or reactive in nature—to ensure the safety of those who attend public demonstrations. This Section analyzes the constitutionality of several common law-enforcement tools at permitted events.

Preparatory Measures

Searches for Prohibited Items

As explained above,⁴¹⁵ the Constitution may leave room for local authorities to prohibit persons who attend public events from bringing items that could be used as weapons. It stands to reason that if these restrictions are constitutional, officials may also implement generally applicable, minimally intrusive searches to screen attendees for forbidden items. Yet mass searches of this sort—ones conducted without warrants or individualized suspicion—represent a departure from ordinary Fourth Amendment principles. And the First Amendment further limits officials' ability to implement search methods likely to deter expression. The constitutionality of such measures will depend on the specific facts justifying a particular search protocol, as well as its manner of implementation.

First Amendment

Searching attendees for prohibited items can be a powerful tool for preserving an atmosphere conducive to "free speech and assembly rights."⁴¹⁶ But the fact that a prohibited-items list satisfies the First Amendment does not mean that a resulting search protocol necessarily does. Such measures will fail the relevant tailoring requirement if they are exceedingly intrusive, or if they are poorly adapted to detecting the types of items that have been forbidden. Thus, although the Sixth Circuit once found a magnetometer search to be "narrowly fashioned to further a compelling governmental interest in public safety and order,"⁴¹⁷ the Eleventh Circuit later deemed that same technique to be "substantially under-inclusive" with respect to the government's professed interests.⁴¹⁸ A policy of searching attendees' bags and other personal items could be an appropriate way to strike this balance⁴¹⁹ —especially if attendees are given prior notice that their effects will be subject to inspection.

The Eleventh Circuit has also held that mass searches at public demonstrations—as a type of speech restriction—must not result from the "unbridled discretion" of law enforcement.⁴²⁰ Under this view, the police may implement mass suspicionless searches only pursuant to advance legislative authorization (via ordinance or otherwise). In the same decision, the Eleventh Circuit further held that a magnetometer search functioned as both an impermissible prior restraint and an unconstitutional condition on the exercise of First Amendment rights.⁴²¹ But it is difficult to view these conclusions as anything other than add-ons to the court's tailoring analysis, which performed all the relevant work. And that analysis was itself driven by the government's failure to identify any genuine security threat.⁴²² If such a showing has been made, it is unlikely that a court would venture to micromanage the precise policing tools selected to keep demonstrators safe.⁴²³

Fourth Amendment

Although searches conducted without a warrant are presumptively unreasonable, warrants and individualized suspicion are not required (1) "where special needs... make the warrant and probable-cause requirement impracticable,"⁴²⁴ and (2) "where the primary purpose of the searches is distinguishable from the general interest in crime control."⁴²⁵ Each of these conditions applies to mass searches at public gatherings conducted for the purpose of protecting demonstrators against credible (if diffuse) security threats.⁴²⁶

That mass suspicionless searches at public events can satisfy the Fourth Amendment does not mean that they invariably do. That determination will be heavily influenced by such factors as the gravity of the underlying security threat, the intrusiveness of a particular search method, whether attendees were given advance notice of the search protocol, and whether all or only a subset of attendees will be searched. Courts have found each of the following arrangements unconstitutional:

• pat-down searches for all attendees at a public rally—even one that authorities feared could “erupt into violence”;⁴²⁷
• a bag-search policy that exempted a significant portion of attendees, and where the security concerns were based on “speculative” and “third-hand” information;⁴²⁸
• a bag-search policy that had not been communicated in advance and that was supported by “overly vague” security threats;⁴²⁹ and
• magnetometer searches for all attendees in the absence of any credible threat to public safety.⁴³⁰

By contrast, the Second Circuit has approved the use of magnetometer searches (followed by individualized frisks) at a public rally with a demonstrated "potential for violent confrontations."⁴³¹ The Sixth Circuit has reached the same conclusion, albeit in dicta.⁴³² In sum, under current Fourth Amendment doctrine, facially valid prohibited-items orders may be implemented through mass- search protocols that are not unnecessarily intrusive in relation to an articulable underlying threat.

Physical Separation of Hostile Groups

Another common policing technique at volatile public demonstrations is to facilitate the physical separation of opposing camps. Techniques like buffer zones and barricades can help to prevent violent confrontations, thereby "protect[ing] those actively exercising their rights" from forcible silencing.⁴³³ In fact, courts appear to have evinced no skepticism of these crowd-control measures on First Amendment grounds (at least when implementation relies on participants' self-sorting).⁴³⁴ Whether or not such practices are best classified as content-based under the circumstances,⁴³⁵ they should have little difficulty satisfying whichever standard of scrutiny applies—as long as they represent good-faith efforts to protect public safety.

The Sixth Circuit case of Grider v. Abramson is illustrative. Grider involved a "high-security barricade" erected to separate the Klan's staging area from the general public, with further insulation provided by a police-only buffer zone.⁴³⁶ Despite this technique's classification as content-based⁴³⁷ —and although it inhibited attendees from simultaneously interacting with attendees of both gatherings⁴³⁸ —the court readily held that the separation of antagonistic groups survived strict scrutiny. Grider deemed this technique to be "a necessary and narrowly tailored means of promoting the compelling public interest in preserving community peace and safety, especially in the face of threatened violence which might impede free expression by the rally participants."⁴³⁹

Canceling Events Altogether?

Suppose that local authorities, equipped with credible intelligence, fear that a scheduled event is likely to erupt in violence. May they simply cancel the event as a means of staving off significant threats to human safety? Or must they allow the event to go forward and respond as best they can to any lawbreaking as it occurs?

In general, government may not "suppress legitimate First Amendment conduct as a prophylactic measure" to prevent anticipated violence.⁴⁴⁰ Persons "who actually engage in [violent] conduct" should be dealt with on an individualized basis;⁴⁴¹ if the situation warrants, law enforcement may also be able to disperse an unruly gathering by declaring an unlawful assembly.⁴⁴² But it is far from certain that the same effect may be achieved anticipatorily by calling off a scheduled gathering before it begins. Such a drastic measure—if it could ever be constitutional—must surely be grounded in "specific, reliable information that organized violence of a serious nature is about to occur."⁴⁴³ And the outright cancellation of an event would fail strict scrutiny if the risk of impending harm could be mitigated through other, less restrictive means (such as the techniques discussed above).

Reactive Measures

Removal of Controversial Speakers to Avoid Imminent Harm

Perhaps the most settled feature of First Amendment doctrine is that speakers cannot be preemptively silenced simply because their messages might prove controversial. As numerous courts have concluded, this "heckler's veto" prohibition precludes governments from denying permits to applicants whose demonstrations could cause others to react in anger.⁴⁴⁴ And the rule is often stated so sweepingly as to forbid any form of response-based silencing, even if violence is presently unfolding.⁴⁴⁵ Yet a different array of governmental interests will be implicated when a threat to public safety has actually materialized. Under these conditions, strict application of the heckler's-veto rule could deprive police of an essential tool for averting tragedy.

The Sixth Circuit has confronted this tension most directly. In Bible Believers v. Wayne County , the court did not categorically foreclose the removal of controversial speakers if necessary to stave off immediate harm. It instead held that, "before removing [a] speaker due to safety concerns,... the police must first make bona fide efforts to protect the speaker from the crowd's hostility by other, less restrictive means."⁴⁴⁶ The court made clear that silencing a speaker in this way "will seldom, if ever, constitute the least restrictive means available" for serving a compelling governmental interest.⁴⁴⁷ In particular, "containing or snuffing out the lawless behavior of the rioting individuals" must always be attempted before effectuating a heckler's veto.⁴⁴⁸ Other courts have similarly characterized the latter option as a last resort.⁴⁴⁹

Dealing with Unwanted Protesters

Disruption of Permittees’ Speech

Even though audience hostility generally cannot justify silencing a permittee's speech, may the police remove surrounding persons whose behavior interferes with a permittee's ability to convey its message? Ordinarily, the "preferred First Amendment remedy" for undesirable speech is "more speech, not enforced silence."⁴⁵⁰ Yet a key purpose of permitting systems is to allocate scarce and valuable expressive opportunities among competing claimants. Obstructing a permit-holder's efforts to engage in speech could negate the outcome of this carefully managed process. Some courts have even insisted that the police must restrain private actors from drowning out or otherwise thwarting a permittee's speech—even if that interference takes the form of counter-speech.⁴⁵¹

Although any such duty likely would not be legally enforceable,⁴⁵² there is little doubt that police are authorized to preserve the conditions for effective communication by permittees. The Third Circuit, for example, has held that officers had "ample justification" to remove protesters who were using bullhorns and microphones to render scheduled speech inaudible.⁴⁵³ As the court remarked, "/[t/]he right of free speech does not encompass the right to cause disruption... of an event covered by a permit."⁴⁵⁴ A permittee's interest in "us[ing] the permit for the purpose for which it was obtained" necessarily empowered the police to "prevent counter-protestors from disrupting or interfering with the message of the permit-holder."⁴⁵⁵

Preserving the Autonomy of Permittees’ Speech

Police may silence or exclude members of the public for still another reason: to enable a permit- holder to retain "autonomy [over] the content of [its] own message."⁴⁵⁶ The First Amendment does not require permittees to tolerate counter-speech conveyed through the very mechanisms that have been reserved for the permittees' exclusive use.⁴⁵⁷ Nor must permit-holders abide dissenting perspectives at events designed to espouse particular viewpoints,⁴⁵⁸ or ones that have been deliberately closed off to the general public.⁴⁵⁹ But the police may not effectuate viewpoint-based exclusions at events that are held in public forums and open to all members of the public.⁴⁶⁰ This is true even if the underlying permit purports to grant "exclusive" access during the period when the permit is in effect.⁴⁶¹

Enforcing Existing Laws

As discussed in Section II above, existing federal, state, and local criminal laws can be used to restrain conduct that threatens immediate harm to public safety at expressive gatherings.⁴⁶² Several prominent examples include laws concerning domestic terrorism, hate crimes, paramilitary activity, the existence of unauthorized militias, the false assumption of law-enforcement functions, the unauthorized wearing of military or law-enforcement uniforms, and the wearing of masks for specified purposes. Depending on the circumstances, officials may also be authorized to declare an unlawful assembly and disperse all attendees who have gathered. Because these tools do not depend on the existence of a permit or an event-specific code of conduct, they may be used at both permitted events and spontaneous gatherings.