October 2017 - Parks & Recreation - 25

conveyed, estimate the response of others to that content, and
judge the number of police necessary to meet that response. The
fee assessed will depend on the administrator's measure of the
amount of hostility likely to be created by the speech based on its
content. Those wishing to express views unpopular with bottle
throwers, for example, may have to pay more for their permit.
While acknowledging " the cost of policing relates to content, "
Forsyth County had claimed the challenged ordinance was " content neutral because it is aimed only at a secondary effect - the
cost of maintaining public order. " The Supreme Court rejected the
notion that " the fee's justification has nothing to do with content. "
In the opinion of the court, the cost of maintaining public order
refers to those costs " associated with the public's reaction to the
speech. " According to the court: " Listeners' reactions to speech is
not a content-neutral basis for regulation. "
Police Protection Payment
In this instance, the Supreme Court found Forsyth County " imposed a fee only when it became necessary to provide security for
parade participants from angry crowds opposing their message. "
The ordinance itself makes plain that the costs at issue are
those needed for " necessary and reasonable protection of persons participating in or observing " the speech. Repayment for
police protection is the " most important " purpose underlying
the ordinance.... At no point, in any level of proceedings, has
petitioner [Forsyth County] intimated that it did not construe
the ordinance consistent with its language permitting fees to be
charged for the cost of police protection from hostile crowds....
While this undoubtedly is an important government responsibility, it does not justify a content-based permit fee.
In contrast to the Nationalist Movement's proposed rally, the
court noted Forsyth County had not charged a fee for " police
protection for the 4th of July parades, although they were substantial parades, which required the closing of streets and drew
large crowds. " Accordingly, the Supreme Court reiterated the
long-held precedent: " Regulations which permit the government to discriminate on the basis of the content of the message
cannot be tolerated under the First Amendment. " Moreover,
the Supreme Court acknowledged: " Speech cannot be financially burdened, any more than it can be punished or banned,
simply because it might offend a hostile mob. "
Accordingly, the Supreme Court affirmed the judgment of
the federal appeals court which had found the challenged ordinance violated the First Amendment.
James C. Kozlowski, J.D., Ph.D. is an Attorney and Associate Professor in the
School of Recreation, Health and Tourism at George Mason University in
Manassas, Virginia (jkozlows@gmu.edu). Webpage with link to law review
articles archive (1982 to present): http://mason.gmu.edu/~jkozlows.

W W W. PA R K S A N D R E C R E AT I O N . O R G | O C T O B E R 2 0 1 7 |

Parks & Recreation

October 2017 - Parks & Recreation

Table of Contents for the Digital Edition of October 2017 - Parks & Recreation