Reacting to objections raised by civil libertarians, city officials in Annapolis, Md., say they plan to amend a proposal that would have charged groups fees to cover the costs of public rallies and marches.
Alderman Herbert H. McMillan introduced a measure last month that would require groups which use city services "in connection with a special event, parade or gathering … shall be charged and shall pay full fees for the services."
"Full fees" was defined as the city's costs in providing services associated with event, such as police protection.
The measure raised First Amendment flags, because unpopular groups would have to pay more to cover the cost of city services based on the content of their speech. For example, city attorney Paul Goetzke said that last year's march by the Ku Klux Klan in Annapolis cost the city nearly $25,000.
However, Goetzke said that the measure, introduced on Dec. 14, was "never intended to require groups engaging in First Amendment parades and rallies to pay a fee."
"Rather, the legislation was intended to enable the city to receive consistent and fair charges on leases of city property and use of city facilities and services." Goetzke said the measure was "aimed exclusively at commercial groups who use city facilities."
Representatives with the American Civil Liberties Union and the American Center for Law and Justice told the city that the proposed legislation, if left unclarified, could infringe on First Amendment freedoms.
Dwight Sullivan, staff counsel for the Maryland ACLU, said: "The courts have made clear that you cannot charge people for engaging in expressive activity in a traditional public forum, and sidewalks are a traditional public forum."
Patricia Bast Lyman, staff counsel for the American Center for Law and Justice,said: "Though we are often at polar opposites on any given issue, the ACLJ and ACLU are in total agreement that the Constitution prohibits levying a fee for the right to exercise First Amendment rights. I believe this was a totally unintended consequence of an otherwise sound ordinance."
The proposed ordinance attracted attention after someone in the city's permit office told two groups, including a March for Life group, that the pending legislation could affect the issuance of their permit.
Sullivan said the anti-abortion group was told they might have to pay more than $5,000 for the permit. However, the matter was clarified and the groups were given their permits, Goetzke said, "without fee or limitation."
Officials with the ACLU met with Goetzke and McMillan earlier this week to discuss amendments to the proposal. Sullivan said that both McMillan and Goetzke indicated that the measure would be changed so that there were no fees for First Amendment-protected activities.
Goetzke agreed that an amendment was necessary to clarify that the city would not charge groups fees based on the amount of police protection they required.
In its 1941 decision Cox v. State of New Hampshire, the U.S. Supreme Court ruled that a New Hampshire statute allowing city officials to charge parade organizers a nominal fee up to $300 was constitutional. The court wrote: "The question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for communication of thought and the discussion of public questions immemorially associated with resort to public places."
However, in its 1992 decision Forsyth County, Ga. v. Nationalist Movement, the Supreme Court invalidated an ordinance that allowed a city administrator to vary permit fees for marchers depending on the content of the demonstration or parade. The high court wrote: "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob."
Goetzke said the two decisions demonstrate that a city can charge a nominal fee "as long as the fee does not vary from group to group depending on the amount of police protection required." Otherwise, he said, there could be a "heckler's veto" where a group would be charged based on the reactions of people watching the rally.
"The silver lining of this incident is that we received the expertise of the ACLU and the ACLJ on drafting legislation that will not run afoul of the First Amendment," Goetzke said.
A public hearing is to be held on the proposal on Jan. 25. Sullivan and Lyman say they plan to attend.