by DANIEL L. SCHOFIELD, S.J.D., Nov. 1994.
[Special Agent Schofield is the Unit Chief of the Legal Instruction Unit at the FBI Academy.]
The Supreme Court has indicated that in the context of protests, parades,
and picketing in such public places as streets and parks, "...citizens
must tolerate insulting, and even outrageous, speech in order to provide
adequate breathing space to the freedoms protected by the First
Police face difficult constitutional and operational issues when tasked
with the dual responsibility of maintaining public order and protecting
the first amendment rights of protestors and marchers. This article
discusses recent court decisions concerning the constitutionality of
permit requirements and injunction-based restrictions that limit the
time, place, and manner of expressive activity in public places.
Three general first amendment principles guide departmental
decisionmaking in controlling public protest.
First, political speech in traditional public forums, such as streets and
parks, is afforded a very high level of first amendment protection, and
blanket prohibitions of such speech are generally unconstitutional.
Second, reasonable time, place, and manner restrictions on such speech
are permissible if they are content-neutral, narrowly tailored to serve
substantial government interests, and leave ample alternative ways for
the speech to occur.
Third, speech or expressive conduct can be restricted because of its
relationship to unlawful conduct, such as disorderly conduct or trespass.
Content-Neutral Permit Requirements
The first amendment permits the government to impose a permit requirement
for those wishing to engage in expressive activity on public property,
such as streets, sidewalks, and parks.2
Any such permit scheme controlling the time, place, and manner of speech
must not be based on the content of the message, must be narrowly
tailored to serve a significant governmental interest, and must leave
open ample alternatives for communication.3
The Supreme Court has held that any permit regulation that allows
arbitrary application is "...inherently inconsistent with a valid time,
place, and manner regulation because such discretion has the potential
for becoming a means of suppressing a particular point of view."4
The Supreme Court has ruled unconstitutional permit schemes that vest
government decision-makers with uncontrolled discre-tion in deciding
whether to issue a particular permit.5 Ideally, a permit scheme should
1) A written description of the permit/license application process
2) Comprehensive and unambiguous standards for implementation and the
objective criteria officials will use in determining whether to grant or
deny a permit application
3) A time frame for the application process and for decisionmakers to
consider an application
4) A provision for notifying the applicant that a permit request has been
denied and the reasons for the denial
5) An established route to appeal a denial of an application
6) Language that avoids inherently vague terms, the meaning of which are
not self-evident or easily discernible, such as "first amendment
activities," "special or unique circumstances," "unique hardship,"
"public nuisance," or "detrimental to public health and safety," and
7) The identity of the person or persons with the authority to grant or
deny a permit request.
A permit process must be narrowly tailored to serve significant
government interests. For example, a Federal district court ruled
unconstitutional a city's refusal to grant permission for a nonprofit
organization to set up portable tables at particular locations on the
public sidewalks of the city's commercial and historic district.
The nonprofit organization intended to distribute literature, discuss
issues of spiritual ecology, and sell T-shirts carrying messages related
to the organization's religious tenets.6
The court said the lack of a coherent permit scheme, narrowly tailored to
serve city interests, gave the city unbridled discretion to grant or deny
However, the court suggested the first amendment would permit the city to
use narrowly tailored regulations to minimize interference with
pedestrian movement on crowded sidewalks, such as established times for
such activity and limitations on the size and precise positioning of the
Moreover, the city's legitimate interest in preserving the character and
ap-pearance of its historic district might justify restrictions, if the
city's permit scheme has content-neutral standards narrowly tailored to
serve that objective and the city proves that its aesthetic concerns are
sufficient to warrant the abridgment of first amendment rights.9
Restrictions Based on Threat of Violence
The U.S. Court of Appeals for the District of Columbia stated in
Christian Knights of KKK v. District of Columbia10 that when using a
public forum, "...speakers do not have a constitutional right to convey
their message whenever, wherever and however they please."11
Accordingly, the government may regulate a marcher's use of the streets
based on legitimate interests, such as: 1) Accommodating conflicting
demands by potential users for the same place; 2) protecting those who
are not interested onlookers, like a "captive audience" in a residential
neighborhood, from the adverse collateral effects of the speech; and 3)
protecting public order.
The court emphasized that a permit process cannot be used to "...impose
even a place restriction on a speaker's use of a public forum on the
basis of what the speaker will say, unless there is a compelling interest
for doing so, and the restriction is necessary to serve the asserted
The court ruled the city's denial of a permit request from the Ku Klux
Klan to march 11 blocks and the resulting decision to limit the march to
only 4 blocks was unconstitutionally based on anticipated listener
reaction, which turns on the group marching, the message of the group,
and the extent of antagonism, discord, and strife the march would
However, the court also held that a restriction based on the threat
of violence could be constitutionally justified if that threat of
violence is beyond reasonable control of the police.
The court noted:
"[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...Regardless of the Klan's message, and its opinion of the
precise route needed to express it, some governmental interests are
weighty enough to justify restrictions on speech in a public forum--
particularly restrictions, like this one, that limit but do not ban or
punish a march, and indeed allow use of a significant segment of the
Nonetheless, because of conflicting police testimony and evidence, the
court concluded the threat of violence posed by the proposed Klan march
was not beyond reasonable police control and that the restriction
therefore violated the first amendment.15
A court-ordered weapons ban at a particular Klan rally site, based on the
threat of violence and the stated intention and practice of the Klan to
bring firearms to their rallies, may justify police conducting general
magnetometer searches of persons and packages at that site without regard
to standards of reasonable suspicion or probable cause. However, mass
pat-down searches of persons entering the rally sites would likely
violate the fourth amendment.16
Supreme Court Rejects Permit Fee Based on Listener Reaction
To what extent can the government assess fees and costs for the issuance
of a permit authorizing expressive activity in a public forum?
In Forsyth County, Georgia v. The Nationalist Movement,17 the Supreme
Court ruled unconstitutional a parade ordinance that permitted a
government administrator to vary the fee for assembling or parading to
reflect the estimated cost of maintaining public order.
The Court said that a $1,000 cap on the parade permit fee did not render
the otherwise invalid ordinance constitutional. Specifically, the Court
noted that there were no articulated standards, either in the ordinance
or in the county's established practice, to guide the decision of how
much to charge for police protection or administrative time--or even
whether to charge at all.18 Not only was there a possibility of
censorship through such uncontrolled discretion, but the county's fee
also often depended "...on the administrator's measure of the amount of
hostility likely to be created by the speech based on its content."19
While those wishing to express views unpopular with bottle-throwers might
have to pay more for their permit, the Court noted the county did not
even charge for police protection for 4th of July parades, which drew
large crowds that required the closing of streets.20
The Court concluded the county imposed a fee only when it became
necessary to provide security for parade participants from angry crowds
opposing their message and that listener's reaction to speech is not a
content-neutral basis for assessing a permit fee.21
Permissible Fees and Costs
The Supreme Court in Forsyth County did not decide whether only nominal
charges are constitutionally permissible, but four Justices agreed in a
dissenting opinion that the Constitution does not limit a parade permit
fee to a nominal amount and permits a sliding fee to account for
administrative and security costs.22
In that regard, lower courts have upheld the practice of assessing permit
fees in accordance with projected police expenses if certain conditions
are met. For example, a Federal district court upheld the Kansas City
Police Department's policy of requiring parade sponsors to pay for the
cost of traffic control.23 The court concluded the department's extensive
list of factors used to project associated police costs were content-
neutral, with the exception of a "crowd control" factor, which the court
said was unconstitutional and needed to be severed from the otherwise
Similarly, the U.S. Court of Appeals for the Sixth Circuit upheld a
Columbus, Ohio, ordinance that required prepayment of an $85 fee for the
cost of processing a parade permit application and prepayment of the cost
for traffic control. The court ruled that the ordinance 1) did not permit
speculation about the degree of violence a parade may provoke; 2)
provided protection for the marchers without consideration of its cost;
and 3) contained objective standards related to traffic control and not
related to speculation about the potential for disturbances based on the
Precedential support for the assessment of costs also can be found in a
California appellate court decision upholding portions of an ordinance
that requires a parade permittee to reimburse the city for, and pay in
advance, an estimate of "all city departmental service charges incurred
in connection with or due to the permittee's activities under the
permit." The ordinance also requires that "if city property is destroyed
or damaged by reason of permittee's use, event or activity, the permittee
shall reimburse the city for the actual replacement or repair cost of the
destroyed or damaged property."26
The court said the fees correspond to the size of the parade and its
impact on normal traffic and not the size of the crowd in attendance.
Also, the departmental service charge and cleanup reimbursement
requirements are textually tied to the activities of the permittee itself
and does not purport to impose responsibility for the acts of others.27
It is constitutionally significant that in all the above cases upholding
permit fees and costs, indigent groups unable to pay the fees were not
precluded from engaging in expressive activity, because an alternative
forum was available. For example, sidewalks were free for conducting a
parade because traffic control was not affected and parks were available
without cost for related speech activities.
Injunction-based restrictions on expressive activity may be a viable and
operationally effective option for law enforcement to maintain public
order. In Madsen v. Women's Health Center, Inc.,28 the Supreme Court
reviewed an injunction entered by a Florida State court that prohibited
antiabortion protestors from demonstrating in certain places and in
various ways outside a health clinic that performs abortions.
The protestors were enjoined from blocking or interfering with public
access to the clinic and from physically abusing persons entering or
leaving the clinic.
However, the protestors continued to impede access to the clinic by
congregating on the paved portion of the street leading to the clinic and
by marching in front of the clinic's driveways.29
As vehicles heading toward the clinic slowed to allow the protesters to
move out of the way, "sidewalk counselors" would approach and attempt to
give the vehicle's occupants antiabortion literature. The number of
people congregating varied from a handful to 400, and the noise varied
from singing and chanting to the use of loudspeakers and bullhorns.
Protesters also picketed in front of clinic employees' residences.
Because of this conduct, the Florida court issued an amended injunction
which, inter alia, excluded demonstrators from a 36-foot buffer zone
around the clinic entrances and driveway and the private property to the
north and west of the clinic. The injunction also restricted excessive
noisemaking within the earshot of, and the use of "images observable" by,
patients inside the clinic, prohibited protesters within a 300-foot zone
around the clinic from approaching patients and potential patients who do
not consent to talk, and created a 300-foot buffer zone around the
residences of clinic staff.
The Supreme Court concluded that injunction-based restrictions must
burden no more speech than necessary and that an injunction regulating a
particular group's activities that express a particular viewpoint is not
impermissibly content-based when premised on the group's past illegal or
inappropriate actions.30 Because all injunctions, by their very nature,
apply to particular groups or individuals, the Court said the test for
determining content-neutrality is whether the government's purpose in
regulating the speech is without reference to its content.31
The Court held that injunctions carry greater risks of censorship and
discriminatory application than generally applicable statutes and
ordinances and that content-neutral injunctions must therefore be
evaluated under a somewhat more stringent test to determine if "...the
challenged provisions of the injunction burden no more speech than
necessary to serve a significant government interest."32
The Court then determined the constitutionality of the injunction's
buffer zones, noise restrictions, ban on the display of signs and visual
images, and restriction on residential picketing.
The Supreme Court upheld a 36-foot buffer zone around the Florida
abortion clinic's entrances and driveway, finding it burdened no more
speech than necessary to accomplish the governmental interest in
protecting unfettered ingress to and egress from the clinic and because
it ensured that traffic would not be blocked.33
The Court concluded this buffer zone also was justified by the failure of
the earlier injunction to accomplish its purpose of protecting access to
the clinic. Conversely, the Court said that a portion of the 36-foot
buffer zone that extended to private property on the back and side of the
clinic was unconstitutional because it burdened more speech than
necessary to protect access to the clinic.34 Because there was no
evidence that the protestors had ever used the private property to
obstruct access to the clinic, the Court found that this portion of the
buffer zone did not serve a significant government interest.
The Supreme Court also held unconstitutional a buffer zone provision that
ordered protestors to refrain from physically approaching any person
seeking services of the clinic, unless such person indicates a desire to
communicate in an area within 300 feet of the clinic. While the stated
purpose of this restriction was to prevent clinic patients and staff from
being "stalked" or "shadowed" as they approached the clinic, the Court
said a prohibition on all uninvited approaches, regardless of how
peaceful the contact may be, burdens more speech than necessary to
prevent intimidation and to ensure access to the clinic.35
The Court found this ban on all uninvited approaches unconstitutional
"...absent evidence that the protesters' speech is independently
proscribable (i.e., "fighting words" or threats), or is so infused with
violence as to be indistinguishable from a threat of physical harm."36
Using a similar rationale, the Supreme Court of New Jersey held an
injunction provision creating a buffer zone was too broad-based on an
insufficient history of threats and intimidation.37
Rather than prohibiting all expressional activities on the sidewalk
directly in front of the medical center, the court said the injunction
should have allowed a limited, controlled form of expression near the
entrance, while restricting the troublesome mass of protestors to a
location across the street. The court said the injunction should give
consideration to the right of protestors to make their presence known and
to the role of sidewalk counseling in that process, while at the same
time protecting against any harassment of the patients or others who wish
to enter the clinic.
Nonetheless, a history of intimidation by a particular group may justify
a restrictive buffer zone. For example, the California Supreme Court
upheld an injunction provision creating a "clear zone" that effectively
barred antiabortion protestors from the public sidewalk in front of a
clinic by requiring that all picketing, demonstrating, or counseling take
place on the public sidewalk directly across the street.38
The court said the restriction was justified based on the group's history
of intimidation and the fact that the first amendment does not guarantee
the right to a captive audience.
The Supreme Court in Madsen upheld a portion of the injunction that
restrained the protestors from singing, chanting, whistling, shouting,
yelling, and using bullhorns, auto horns, or sound amplification
equipment within earshot of the patients inside the clinic during the
hours of 7:30 a.m. through noon on Mondays through Saturdays. Noting the
importance of noise control around hospitals and medical facilities
during surgery and recovery periods, the Court found the noise
restriction burdened no more speech than necessary to ensure the health
and well-being of the patients at the clinic.
The Court noted that patients should not have to "...undertake Herculean
efforts to escape the cacophony of political protests."39
Other courts have upheld disorderly conduct prosecutions for unreasonable
noise based on the government's broad powers to protect citizens from
unwelcome noise. This can extend to any situation in which individuals
cannot escape bombardment of their sensibilities and which substantially
threatens their privacy interests.40
Bans on the Display of Signs and Visual Images
The Supreme Court in Madsen ruled unconstitutional a provision in the
injunction that prohibited protestors from using images observable to
patients inside the clinic during the hours of 7:30 a.m. through noon on
Mondays through Saturdays. The Court suggested the first amendment would
not be violated by an injunction-based prohibition on the display of
signs that could be interpreted as a threat or veiled threat to patients
or their families.
However, the Madsen injunction's broad prohibition on all "images
observable" burdens more speech than necessary to achieve the purpose of
limiting such threats.41
If the purpose is to reduce the level of anxiety and hypertension
suffered by patients who find the message expressed in the placards
disagreeable, the Court distinguished the ban on signs from restrictions
on noise by noting that "...it is much easier for the clinic to pull its
curtains than for a patient to stop up her ears."42
Restrictions on Residential Picketing
The Supreme Court in Madsen ruled unconstitutional a provision in the
injunction that prohibited picketing within 300 feet of the residences of
clinic staff. The Court said the protection of residential privacy and
tranquility is a legitimate governmental interest of the highest order
and affirmed its prior decision upholding the constitutionality of an
ordinance that prohibit-ed "focused picketing taking place solely in
front of a particular residence."43
However, the Court found the 300-foot zone around residences burdened
more speech than necessary because it banned general marching through
residential neighborhoods or even walking a route in front of an entire
block of houses.44
The Court concluded that "...a limitation on the time, duration of
picketing, and number of pickets outside a smaller zone could have
accomplished the desired result."45
A Federal district court ruled an ordinance could be enforced to prohibit
continuous picketing in front of a doctor's home but not to prevent
picketing in the doctor's neighborhood, so long as the picketers did not
picket in front of the doctor's home or the two homes on either side of
the doctor's home.46
The court noted sympathetically that police need bright-line standards to
help them enforce such ordinances that raise difficult first amendment
The Supreme Court has interpreted the first amendment as creating a
"...profound national commitment to the principle that debate on public
issues should be uninhibited, robust and wide-open."47
Law enforcement often has the responsibility of balancing the legitimate
need to maintain public order with the important interest in protecting
first amendment rights. Because the legality of the various enforcement
options discussed in this article depends on a complex and fact-specific
analysis, law enforcement decisionmakers should obtain competent legal
review of any proposed restriction on expressive activity.
In that regard, a particular group's past violent or disruptive conduct
should be carefully documented because it is relevant to this analysis.
Finally, it is recommended that officers receive legal training on the
basic principles of first amendment law before being assigned the
difficult task of controlling public protest.
1 Boos v. Barry, 485 U.S. 312, 322 (1988).
2 See Cox v. New Hampshire, 319 U.S. 569, 574 (1941).
3 See United States v. Grace, 461 U.S. 171, 177 (1983). See also, Rubin
v. City of Santa Monica, 823 F.Supp. 709 (C.D.Calif. 1993) and Paulsen
v. Lehman, 839 F.Supp. 147 (E.D.N.Y. 1993).
4 Heffron v. International Society for Krishna Consciousness Inc., 452
U.S. 640, 649 (1981).
5 See, e.g., Freedman v. Maryland, 380 U.S. 51 (1965). 6 One World One
Family Now v. City of Key West, 852 F.Supp. 1005 (S.D. Fla. 1994).
7 Id. at 1011.
9 Id. at 1012.
10 972 F.2d 365 (D.C. Cir. 1992).
11 Id. at 372.
13 Id. at 373-74.
14 Id. at 374-75.
15 Id. at 375-76.
16 Wilkinson v. Forst, 832 F.2d 1330 (2d Cir. 1987), cert. denied, 108
S.Ct. 1593 (1988); Wilkinson v. Forst, 717 F. Supp. 49 (D. Conn. 1989).
17 112 S.Ct. 2395 (1992).
18 Id. at 2403.
20 Id. at 2404 n.12.
21 Id. at 2403.
22 Id. at 2406 (Chief Justice Rehnquist dissenting).
23 Gay and Lesbian Services Network, Inc. v. Bishop, 841 F.Supp. 295
(W.D. Mo. 1993).
24 Id. at 296.
25 Stonewall Union v. City of Columbus, 931 F.2d 1130 (6th Cir. 1991),
cert. denied, 112 S.Ct. 275.
26 Long Beach Lesbian & Gay Pride v. Long Beach, 17 Cal.Rptr.2d 861 (Cal.
App. 2 Dist. 1993).
27 In Pritchard v. Mackie, 811 F.Supp. 665 (S.D. Fla. 1993), the court
held that a requirement for the Klan to obtain a $1 million liability
policy before it could receive a rally permit violated the first
28 114 S.Ct. 2516 (1994).
29 Legal scholars disagree regarding the constitutionality of the
recently enacted Freedom of Access to Clinic Entrances Act (FACC). See,
e.g., Paulsen and McConnell, "The Doubtful Constitutionality of the
Clinic Access Bill," 1 Va.J.Soc.Pol'y & Law 261-289 (1994); and Tribe,
"The Constitutionality of the Freedom of Access to Clinic Entrances Act
of 1993," 1 Va.J.Soc.Pol'y & Law 291-308 (1994).
30 114 S.Ct. at 2523-24.
32 Id. at 2525.
33 Id. at 2527.
34 Id. at 2528.
35 Id. at 2529. In Sabelko v. City of Phoenix, 846 F.Supp. 810 (D. Ariz.
1994), the court ruled unconstitutional an ordinance that effectively
rendered sidewalk counseling, whether peaceful or not, dependent on the
subjective reaction of the person approached.
37 Horizon Health Center v. Felicissimo, 638 A.2d 1260 (Sup. Ct. N.J.
38 Planned Parenthood Shasta-Diablo, Inc. v. Williams, 873 P.2d 1224
(Sup. Ct. Cal. 1994).
39 114 S. Ct. at 2528.
40 See, e.g., Ward v. Rock Against Racism, 109 S. Ct. 2746 (1989) and
Price v. State, 622 N.E.2d 954 (Sup. Ct. Ind. 1993). 41 114 S. Ct. at
43 Id. at 2529-30. See also, Frisby v. Schultz, 108 S.Ct. 2495 (1988).
44 Id. at 2430.
46 Vittitow v. City of Upper Arlington, 830 F.Supp. 1077 (S.D. Ohio E.D.
47 New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).
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