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| [1] | SUPREME COURT OF THE UNITED STATES |
| [2] | No. 00-1249 |
| [3] | 2002.SCT.0000013 <http://www.versuslaw.com> |
| [4] | January 15, 2002 |
| [5] | CAREN CRONK THOMAS AND WINDY CITY HEMP DEVELOPMENT BOARD, PETITIONERS v. CHICAGO PARK DISTRICT |
| [6] | SYLLABUS BY THE COURT |
| [7] | OCTOBER TERM, 2001 |
| [8] | Respondent Chicago Park District adopted an ordinance requiring individuals
to obtain a permit before conducting large-scale events in public parks.
The ordinance provides that the Park District may deny a permit on any of
13 specified grounds, must process applications within 28 days, and must
explain its reasons for a denial. An unsuccessful applicant may appeal,
first, to the Park District's general superintendent and then to state court.
Petitioners, dissatisfied that the Park District has denied some, though
not all, of their applications for permits to hold rallies advocating the
legalization of marijuana, filed a 42 U. S. C. §1983 suit, alleging, inter
alia, that the ordinance is unconstitutional on its face. The District Court
granted the Park District summary judgment, and the Seventh Circuit affirmed. |
| [9] | Held: |
| [10] | 1. A content-neutral permit scheme regulating uses (including speech uses)
of a public forum need not contain the procedural safeguards described in
Freedman v. Maryland, 380 U. S. 51. Freedman is inapposite because, unlike
the motion picture censorship scheme in that case, the Park District's ordinance
is not subject-matter censorship but content-neutral time, place, and manner
regulation of the use of a public forum. None of the grounds for denying
a permit has anything to do with the content of speech. Indeed, the ordinance
is not directed at communicative activity as such, but to all activity in
a public park. And its object is not to exclude particular communication,
but to coordinate multiple uses of limited space; assure preservation of
park facilities; prevent dangerous, unlawful, or impermissible uses; and
assure financial accountability for damage caused by an event. Pp. 4-7. |
| [11] | 2. A content-neutral time, place, and manner regulation can be applied
in such a manner as to stifle free expression. It thus must contain adequate
standards to guide an official's decision and render that decision subject
to effective judicial review. See Niemotko v. Maryland, 340 U. S. 268, 271.
The Park District's ordinance meets this test. That the ordinance describes
grounds on which the Park District "may" deny a permit does not
mean that it allows the Park District to waive requirements for some favored
speakers. Such a waiver would be unconstitutional, but this abuse must be
dealt with if and when a pattern of unlawful favoritism appears, rather
than by insisting upon a rigid, no-waiver application of the permit requirements.
Pp. 79. |
| [12] | 3. Because the Park District's ordinance is not subject to Freedman's
procedural requirements, this Court does not reach the question whether
the requirement of prompt judicial review means a prompt judicial determination
or the prompt commencement of judicial proceedings. Pp. 910. |
| [13] | 227 F. 3d 921, affirmed. |
| [14] | Scalia, J., delivered the opinion for a unanimous Court. |
| [15] | The opinion of the court was delivered by: Justice Scalia. |
| [16] | 534 U. S. ____ (2002) |
| [17] | On Writ Of Certiorari To The United States Court Of Appeals For The Seventh
Circuit |
| [18] | This case presents the question whether a municipal park ordinance requiring
individuals to obtain a permit before conducting large-scale events must,
consistent with the First Amendment, contain the procedural safeguards described
in Freedman v. Maryland, 380 U. S. 51 (1965). |
| [19] | I. |
| [20] | Respondent, the Chicago Park District (Park District), is responsible
for operating public parks and other public property in Chicago. See Ill.
Comp. Stat., ch. 70, §1505/7.01 (2001). Pursuant to its authority to "establish
by ordinance all needful rules and regulations for the government and protection
of parks ... and other property under its jurisdiction," §1505/7.02,
the Park District adopted an ordinance that requires a person to obtain
a permit in order to "conduct a public assembly, parade, picnic, or
other event involving more than fifty individuals," or engage in an
activity such as "creat[ing] or emit[ting] any Amplified Sound."
Chicago Park Dist. Code, ch. VII, §§C.3.a(1), C.3.a(6). The ordinance provides
that "[a]pplications for permits shall be processed in order of receipt,"
§C.5.a, and the Park District must decide whether to grant or deny an application
within 14 days unless, by written notice to the applicant, it extends the
period an additional 14 days, §C.5.c. Applications can be denied on any
of 13 specified grounds. §C.5.e.*fn1 If
the Park District denies an application, it must clearly set forth in writing
the grounds for denial and, where feasible, must propose measures to cure
defects in the application. §§C.5.d, C.5.e. When the basis for denial is
prior receipt of a competing application for the same time and place, the
Park District must suggest alternative times or places. §C.5.e. An unsuccessful
applicant has seven days to file a written appeal to the General Superintendent
of the Park District, who must act on the appeal within seven days. §C.6.a.
If the General Superintendent affirms a permit denial, the applicant may
seek judicial review in state court by common-law certiorari. See Norton
v. Nicholson, 187 Ill. App. 3d 1046, 1057-1058, 543 N. E. 2d 1053, 1059
(1989). |
| [21] | Petitioners have applied to the Park District on several occasions for
permits to hold rallies advocating the legalization of marijuana. The Park
District has granted some permits and denied others. Not satisfied, petitioners
filed an action pursuant to 42 U. S. C. §1983 in the United States District
Court for the Northern District of Illinois, alleging, inter alia, that
the Park District's ordinance is unconstitutional on its face. The District
Court granted summary judgment in favor of the Park District, and the United
States Court of Appeals for the Seventh Circuit affirmed. 227 F. 3d 921
(2000). We granted certiorari. 532 U. S. 1051 (2001). |
| [22] | II. |
| [23] | The First Amendment's guarantee of "the freedom of speech, or of
the press" prohibits a wide assortment of government restraints upon
expression, but the core abuse against which it was directed was the scheme
of licensing laws implemented by the monarch and Parliament to contain the
"evils" of the printing press in 16th- and 17-century England.
The Printing Act of 1662 had "prescribed what could be printed, who
could print, and who could sell." Mayton, Toward a Theory of First
Amendment Process: Injunctions of Speech, Subsequent Punishment, and the
Costs of the Prior Restraint Doctrine, 67 Cornell L. Rev. 245, 248 (1982).
It punished the publication of any book or pamphlet without a license and
required that all works be submitted for approval to a government official,
who wielded broad authority to suppress works that he found to be "
`heretical, seditious, schismatical, or offensive.' " F. Siebert, Freedom
of the Press in England, 1476-1776, p. 240 (1952). The English licensing
system expired at the end of the 17th century, but the memory of its abuses
was still vivid enough in colonial times that Blackstone warned against
the "restrictive power" of such a "licenser" -- an administrative
official who enjoyed unconfined authority to pass judgment on the content
of speech. 4 W. Blackstone, Commentaries on the Laws of England 152 (1769). |
| [24] | In Freedman v. Maryland, 380 U. S. 51 (1965), we confronted a state law
that enacted a strikingly similar system of prior restraint for motion pictures.
It required that every motion picture film be submitted to a Board of Censors
before the film was shown anywhere in the State. The Board enjoyed authority
to reject films that it considered " `obscene' " or that "
`tend[ed], in the judgment of the Board, to debase or corrupt morals or
incite to crimes,' " characteristics defined by the statute in broad
terms. Id., at 52, n. 2. The statute punished the exhibition of a film not
submitted to the Board for advance approval, even where the film would have
received a license had it been properly submitted. It was no defense that
the content of the film was protected by the First Amendment. |
| [25] | We recognized in Freedman that a scheme conditioning expression on a licensing
body's prior approval of content "presents peculiar dangers to constitutionally
protected speech." Id., at 57. "[T]he censor's business is to
censor," ibid., and a licensing body likely will overestimate the dangers
of controversial speech when determining, without regard to the film's actual
effect on an audience, whether speech is likely " `to incite' "
or to " `corrupt [the] morals,' " id., at 52, n. 2. Cf. Southeastern
Promotions, Ltd. v. Conrad, 420 U. S. 546, 561, and n. 11 (1975). In response
to these grave "dangers of a censorship system," Freedman, supra,
at 58, we held that a film licensing process must contain certain procedural
safeguards in order to avoid constituting an invalid prior restraint: "(1)
any restraint prior to judicial review can be imposed only for a specified
brief period during which the status quo must be maintained; (2) expeditious
judicial review of that decision must be available; and (3) the censor must
bear the burden of going to court to suppress the speech and must bear the
burden of proof once in court." FW/PBS, Inc. v. Dallas, 493 U. S. 215,
227 (1990) (principal opinion of O'Connor, J., joined by Stevens, and Kennedy,
JJ.) (citing Freedman, supra, at 58-60). |
| [26] | Petitioners contend that the Park District, like the Board of Censors
in Freedman, must initiate litigation every time it denies a permit and
that the ordinance must specify a deadline for judicial review of a challenge
to a permit denial. We reject those contentions. Freedman is inapposite
because the licensing scheme at issue here is not subject-matter censorship
but content-neutral time, place, and manner regulation of the use of a public
forum. The Park District's ordinance does not authorize a licensor to pass
judgment on the content of speech: None of the grounds for denying a permit
has anything to do with what a speaker might say. Indeed, the ordinance
(unlike the classic censorship scheme) is not even directed to communicative
activity as such, but rather to all activity conducted in a public park.
The picnicker and soccer-player, no less than the political activist or
parade marshal, must apply for a permit if the 50-person limit is to be
exceeded. And the object of the permit system (as plainly indicated by the
permissible grounds for permit denial) is not to exclude communication of
a particular content, but to coordinate multiple uses of limited space,
to assure preservation of the park facilities, to prevent uses that are
dangerous, unlawful, or impermissible under the Park District's rules, and
to assure financial accountability for damage caused by the event. As the
Court of Appeals well put it: "[T]o allow unregulated access to all
comers could easily reduce rather than enlarge the park's utility as a forum
for speech." 227 F. 3d 921, 924 (CA7 2000). |
| [27] | We have never required that a content-neutral permit scheme regulating
speech in a public forum adhere to the procedural requirements set forth
in Freedman.*fn2 "A licensing standard
which gives an official authority to censor the content of a speech differs
toto coelo from one limited by its terms, or by nondiscriminatory practice,
to considerations of public safety and the like." Niemotko v. Maryland,
340 U. S. 268, 282 (1951) (Frankfurter, J., concurring in result). "[T]he
[permit] required is not the kind of prepublication license deemed a denial
of liberty since the time of John Milton but a ministerial, police routine
for adjusting the rights of citizens so that the opportunity for effective
freedom of speech may be preserved." Poulos v. New Hampshire, 345 U.
S. 395, 403 (1953). Regulations of the use of a public forum that ensure
the safety and convenience of the people are not "inconsistent with
civil liberties but ... [are] one of the means of safeguarding the good
order upon which [civil liberties] ultimately depend." Cox v. New Hampshire,
312 U. S. 569, 574 (1941). Such a traditional exercise of authority does
not raise the censorship concerns that prompted us to impose the extraordinary
procedural safeguards on the film licensing process in Freedman. |
| [28] | III. |
| [29] | Of course even content-neutral time, place, and manner restrictions can
be applied in such a manner as to stifle free expression. Where the licensing
official enjoys unduly broad discretion in determining whether to grant
or deny a permit, there is a risk that he will favor or disfavor speech
based on its content. See Forsyth County v. Nationalist Movement, 505 U.
S. 123, 131 (1992). We have thus required that a time, place, and manner
regulation contain adequate standards to guide the official's decision and
render it subject to effective judicial review. See Niemotko, supra, at
271. Petitioners contend that the Park District's ordinance fails this test.*fn3 |
| [30] | We think not. As we have described, the Park District may deny a permit
only for one or more of the reasons set forth in the ordinance. See n. 1,
supra. It may deny, for example, when the application is incomplete or contains
a material falsehood or misrepresentation; when the applicant has damaged
Park District property on prior occasions and has not paid for the damage;
when a permit has been granted to an earlier applicant for the same time
and place; when the intended use would present an unreasonable danger to
the health or safety of park users or Park District employees; or when the
applicant has violated the terms of a prior permit. See Chicago Park Dist.
Code, ch. VII, §C.5.e. Moreover, the Park District must process applications
within 28 days, §C.5.c, and must clearly explain its reasons for any denial,
§C.5.e. These grounds are reasonably specific and objective, and do not
leave the decision "to the whim of the administrator." Forsyth
County, 505 U. S., at 133. They provide " `narrowly drawn, reasonable
and definite standards' " to guide the licensor's determination, ibid.
(quoting Niemotko, supra, at 271). And they are enforceable on review --
first by appeal to the General Superintendent of the Park District, see
Chicago Park Dist. Code, ch. VII, §C.6.a, and then by writ of common-law
certiorari in the Illinois courts, see Norton v. Nicholson, 187 Ill. App.
3d 1046, 543 N. E. 2d 1053 (1989), which provides essentially the same type
of review as that provided by the Illinois administrative procedure act,
see Nowicki v. Evanston Fair Housing Review Bd., 62 Ill. 2d 11, 14, 338
N. E. 2d 186, 188 (1975). |
| [31] | Petitioners contend that the criteria set forth in the ordinance are insufficiently
precise because they are described as grounds on which the Park District
"may" deny a permit, rather than grounds on which it must do so.
This, they contend, allows the Park District to waive the permit requirements
for some favored speakers, while insisting upon them for others. That is
certainly not the intent of the ordinance, which the Park District has reasonably
interpreted to permit overlooking only those inadequacies that, under the
circumstances, do no harm to the policies furthered by the application requirements.
See Tr. of Oral Arg. 31-32. Granting waivers to favored speakers (or, more
precisely, denying them to disfavored speakers) would of course be unconstitutional,
but we think that this abuse must be dealt with if and when a pattern of
unlawful favoritism appears, rather than by insisting upon a degree of rigidity
that is found in few legal arrangements. On petitioners' theory, every obscenity
law, or every law placing limits upon political expenditures, contains a
constitutional flaw, since it merely permits, but does not require, prosecution.
The prophylaxis achieved by insisting upon a rigid, no-waiver application
of the ordinance requirements would be far outweighed, we think, by the
accompanying senseless prohibition of speech (and of other activity in the
park) by organizations that fail to meet the technical requirements of the
ordinance but for one reason or another pose no risk of the evils that those
requirements are designed to avoid. On balance, we think the permissive
nature of the ordinance furthers, rather than constricts, free speech. |
| [32] | Because the Park District's ordinance is not subject to Freedman's procedural
requirements, we do not reach one of the questions on which we granted certiorari,
and on which the Courts of Appeals are divided: whether the requirement
of prompt judicial review means a prompt judicial determination or the prompt
commencement of judicial proceedings. Compare Nightclubs, Inc. v. Paducah,
202 F. 3d 884, 892-893 (CA6 2000); Baby Tam & Co. v. Las Vegas, 154
F. 3d 1097, 1101 (CA9 1998); 11126 Baltimore Blvd., Inc. v. Prince George's
County, 58 F. 3d 988, 998-1001 (CA4 1995) (en banc), with Boss Capital,
Inc. v. Casselberry, 187 F. 3d 1251, 1255-1257 (CA11 1999); TK's Video,
Inc. v. Denton County, 24 F. 3d 705, 709 (CA5 1994); Graff v. Chicago, 9
F. 3d 1309, 1324-1325 (CA7 1993) (en banc); Jews for Jesus, Inc. v. Massachusetts
Bay Transp. Authority, 984 F. 2d 1319, 1327 (CA1 1993). For the foregoing
reasons, we affirm the judgment of the Court of Appeals. |
| [33] | It is so ordered. |
|
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| Opinion Footnotes | |
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| [34] | *fn1 Section C.5.e of the ordinance
provides in relevant part: "To the extent permitted by law, the Park
District may deny an application for permit if the applicant or the person
on whose behalf the application for permit was made has on prior occasions
made material misrepresentations regarding the nature or scope of an event
or activity previously permitted or has violated the terms of prior permits
issued to or on behalf of the applicant. The Park District may also deny
an application for permit on any of the following grounds: "(1)the
application for permit (including any required attachments and submissions)
is not fully completed and executed; "(2)the applicant has not tendered
the required application fee with the application or has not tendered the
required user fee, indemnification agreement, insurance certificate, or
security deposit within the times prescribed by the General Superintendent;
"(3)the application for permit contains a material falsehood or misrepresentation;
"(4)the applicant is legally incompetent to contract or to sue and
be sued; "(5)the applicant or the person on whose behalf the application
for permit was made has on prior occasions damaged Park District property
and has not paid in full for such damage, or has other outstanding and unpaid
debts to the Park District; "(6)a fully executed prior application
for permit for the same time and place has been received, and a permit has
been or will be granted to a prior applicant authorizing uses or activities
which do not reasonably permit multiple occupancy of the particular park
or part hereof; "(7)the use or activity intended by the applicant would
conflict with previously planned programs organized and conducted by the
Park District and previously scheduled for the same time and place; "(8)the
proposed use or activity is prohibited by or inconsistent with the classifications
and uses of the park or part thereof designated pursuant to this chapter,
Section C.1., above; "(9)the use or activity intended by the applicant
would present an unreasonable danger to the health or safety of the applicant,
or other users of the park, of Park District Employees or of the public;
"(10)the applicant has not complied or cannot comply with applicable
licensure requirements, ordinances or regulations of the Park District concerning
the sale or offering for sale of any goods or services; "(11)the use
or activity intended by the applicant is prohibited by law, by this Code
and ordinances of the Park District, or by the regulations of the General
Superintendent ... . |
| [35] | *fn2 FW/PBS, Inc. v. Dallas, 493 U.
S. 215 (1990), which applied two of the Freedman requirements, involved
a licensing scheme that "target[ed] businesses purveying sexually explicit
speech," id., at 224. |
| [36] | *fn3 Petitioners do not argue that the
Park District's ordinance fails to satisfy other requirements of our time,
place, and manner jurisprudence, under which the permit scheme "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." Forsyth County v. Nationalist Movement, 505 U.
S. 123, 130 (1992); see also Clark v. Community for Creative Non&nbhyph;Violence,
468 U. S. 288, 293 (1984). |
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