Understanding Public Permitting Schemes in Free Speech Context

1. Permitting requirements in public fora • Permitting schemes requiring speakers to apply for permission ahead of time can be prior restraints but are valid under certain circumstances. • Circumstances under which they are not valid: • When they vest unlimited discretion in the licensor to permit or deny the speech (Lovell p. 163) • When they expressly allow a city official to discriminate based on content (unless content falls w/in the parameters of low value speech – e.g., obscenity – and even then there are strict procedural protections & rights of appeal). • Circumstances when such schemes are valid: • When they are based on neutral concerns (e.g., traffic safety, keeping public order) and involve only considerations of time, place and manner. (Cox v. New Hampshire p. 163 ) • Cities can charge nominal fees to defray expenses but cannot link those fees/expenses to costs associated with policing particular events due to “security” concerns related to protestors’ message (Forsyth Co. p. 165)

2. Permitting schemes in application • How neutral are the time/place/manner criteria in the ordinances? Do they control official discretion? Are they unreasonably oppressive on speech? • What issues arise with the Asheville/Augusta/Portland ordinances? • Criteria for when permit can be denied – always neutral? Discretion in officials? • Discrimination re activities to which permit requirement applies? • Fees – how calculated? Other monetary burdens? • Timing of permit application? • Size of group to which permit requirements apply? • Do we like permits at all - what is lost from a free speech perspective with a permit system? Does that argue against them in some situations?