October 2017 - Parks & Recreation - 24

L AW R E V I E W

id because it " did not prescribe adequate
standards for the administrator to apply
when he sets a permit fee. "
According to the court: " A government 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

lice and administrative costs. " Moreover,
in any given instance, the county administrator would decide whether " the fee
would include any or all of the county's
administrative and security expenses. "
Further, the county acknowledged that
the ordinance could authorize the county administrator to charge no fee.
At trial, the county administrator had

...the Supreme Court acknowledged, " government, in
order to regulate competing uses of public forums, may
impost a permit requirement on those wishing to hold a
march, parade or rally. "
particular point of view. " To address this
risk, the court would require " a law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license " to contain " narrow, objective, and
definite standards to guide the licensing
authority " to ensure First Amendment
rights are preserved:
If the permit scheme involves
appraisal of facts, the exercise of
judgment, and the formation of an
opinion, by the licensing authority,
the danger of censorship and of
abridgment of our precious First
Amendment freedoms is too great to
be permitted.
Reasonable Fee Judgment
In pertinent part, the challenged ordinance, as amended, stated the county administrator " shall adjust the amount to
be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public
order " (emphasis of the court). As interpreted and applied by the county, the ordinance could " apply to any activity on
public property - from parades, to street
corner speeches, to bike races - and the
fee assessed may reflect the county's po22

Parks & Recreation

testified that he " based the fee on his
own judgment of what would be reasonable. " In this instance, the county
administrator chose not to include in
the permit fee the cost of county clerical support and staff as an " expense incident to the administration. " Further,
the county administrator testified that
he " chose not to include any charge for
expected security expense. "
On two prior occasions, the county administrator had assessed a fee of $100 for
a permit for the Nationalist Movement. In
this instance, the administrator testified
that he assessed the same $100 fee without specifying whether " the Movement
was seeking the same use of county property or that it required the same amount
of administrative time to process. "
The county administrator further testified that he had " charged bike-race
organizers $25 to hold a race on county
roads. " In so doing, the county administrator " did not explain why processing a
bike-race permit demanded less administrative time than processing a parade
permit or why he had chosen to assess
$25 in that instance. " Further, the county
administrator testified, " in other cases,
the county required neither a permit nor

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a fee for activities in other county facilities or on county land. " During oral argument before the Supreme Court, Forsyth County admitted " the administrator
had levied a $5 fee on the Girl Scouts for
an activity on county property. "
Administrative Discretion
Based on Forsyth County's own description of the construction and implementation of the ordinance, the Supreme
Court could not find any " narrowly
drawn, reasonable and definite standards, guiding the hand of the Forsyth
County administrator. " On the contrary,
the Supreme Court found: " The decision
how much to charge for police protection
or administrative time - or even whether to charge at all - is left to the whim of
the administrator. "
There are no articulated standards either in the ordinance or in
the county's established practice.
The administrator is not required
to rely on any objective factors. He
need not provide any explanation
for his decision, and that decision is
unreviewable. Nothing in the law or
its application prevents the official
from encouraging some views and
discouraging others through the arbitrary application of fees. The First
Amendment prohibits the vesting of
such unbridled discretion in a government official.
Measuring Speech Hostility
In the opinion of the Supreme Court, the
challenged permit ordinance contained
" more than the possibility of censorship
through uncontrolled discretion. " The
Supreme Court found " the ordinance often requires that the fee be based on the
content of the speech. "
In order to assess accurately the cost
of security for parade participants, the
administrator must necessarily examine the content of the message that is

October 2017 - Parks & Recreation

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