From non-discrimination to content-neutrality: how prior restraint becomes content-neutral injunction

The Supreme Court spelled out in several cases that the administration of permits shall not be discriminatory, ie denied for some and granted to others, when the some and the others are basically in the same situation. This is, one might say, an application of the rule of content-neutrality to the context of prior restraint on assemblies, though in the early cases when the Court has not yet developed the content-neutrality principle, the term used is non-discrimination. Basically in each and every case mentioned so far, the Court was checking if the permit scheme was administrated in a non-discriminatory way.²⁵⁹

In 1983, in accordance with the general trend to systematize speech jurisprudence in the units of content-based and content-neutral restrictions, the Court adopted a new (formulation of the) test applicable to permit schemes. According to U.S. v. Grace, ‘any permit scheme controlling the time, place, and manner of speech must not be based on

258 Note that the Court does not distinguish between fees exacted in anticipation of hostile audience, and fees exacted incident to the maintenance of order for reasons other than hostile audience. Probably, a fee adjusted to the expected size of the applicant demonstration would be considered content-neutral, and a fee adjusted to anticipated disorder by the applicants themselves would have to fulfill the Brandenburg criteria of imminent likely lawless action, since, compelling interest in strict scrutiny with regard to prevention of disorder must mean a high probability and immediacy of unlawful action. None of these, however, is indicated in Forsyth, what is more, Forsyth has not been refined in any later case.

259 Cox: ‘There is no evidence that the statute has been administered otherwise than in the fair and non-discriminatory manner which the state court has construed it to require.’ 312 U.S. 577, Shuttlesworth quoting the same at 394 U.S. 147, 156.

85 the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication’.²⁶⁰ There will be a separate discussion on content-neutral restrictions on assemblies later;²⁶¹ here it suffices to point to two developments. By the end of the Burger court, doctrinal thinking about prior restrictions on assemblies changes from the prior restraint framework to content-neutrality framework. Thinking in terms of content-content-neutrality still shares with prior restraint thinking a complete lack of reflection, let alone responsiveness to a basic problem Edwin Baker and others remarked 20 years ago: that the permit scheme essentially discriminates against those who want to use the streets for expressive purposes, ie uses constitutionally protected – while those who are not expressing any views are free to walk on the streets without need of permit.

A parallel development worth mentioning is the conundrum around injunctions which by the beginning of the 1990’s started to interest not only scholars, but the Court itself. In a series of cases related to confrontational (often, but not always previously violent) antiabortion speech, the Court approved injunctions restricting the right of protest in (limited) buffer zones around health facilities. In the most important case, Madsen v. Women’s Health Center,²⁶² raising the question whether the injunction was directed against antiabortion speakers for their views, ie whether an injunction phrased regardless of the content of the speech, can still qualify as content-based if it had an exclusive impact on one side of the debate. Disputed among the justices was the question whether the injunction at hand was a prior restraint at all. Chief Justice Rehnquist writing for the Court argues in a footnote that the injunction prohibiting expression within a

260 United States v. Grace, 461 U.S. 171, 177 (1983).

261 See below Chapters 7 to 9.

262 Madsen v. Women’s Health Center, Inc. 512 U.S. 753 (1994).

86 foot buffer zone was not a prior restraint, since it does not limit whether the protestor can speak, only limits the place of the speech. Also, it is not a prior restraint since it does not aim at the content of the speech, but it is issued because of protestors’ prior unlawful conduct. Justice Scalia in dissent argues that the injunction is clearly a prior restraint,²⁶³ and is clearly content-based. Here what occupies me is less this latter issue, or who was right in the Madsen case.²⁶⁴ Rather, I want to point out that both opinions think the issue of prior restraint turns on, or, is at least closely related to whether the injunction was content-neutral or content-based. Clearly, prior restraint arguments have become increasingly infused or even overwhelmed by the content-neutrality principle and the attached variety of tests. The beginnings, however, can be found in early cases urging for limited discretion to ensure fair and nondiscriminatory use of permit schemes and other prior restraints.

A final development related to permits on assemblies came in 2002 in Thomas v. Chicago Park District, a unanimous decision. ²⁶⁵ Justice Scalia wrote the very short judgment, upholding the constitutionality of a permit scheme against a facial challenge. The ordinance at hand required a permit for events involving more than fifty persons, and the Park District had altogether 28 days to decide. The ordinance listed thirteen grounds on which the permit can be denied, among them violation of a previous permit and misrepresentation of facts in the permit request. What might have come as a surprise, the

263 ‘[A]n injunction against speech is the very prototype of the greatest threat to First Amendment values, the prior restraint.’ 512 U.S. 797.

264 Some commentators tend to find fault more with J. Scalia than with the majority eg Owen Fiss on the exact matter, but one can be sure Martin Redish would also not think injunctions should get a stricter scrutiny than criminal statutes. I personally find persuasive the critique by Scalia about assumed facts on the part of the majority – and that might change the outcome, but certainly would side with the mentioned authors on the question of injunctions as such, and especially would not accept Scalia’s claim that the collateral bar rule of Walker v. Birmingham justifies strict scrutiny.

265 Thomas v. Chicago Park District, 534 U.S. 316 (2002)

87 Court declared the procedural safeguards elaborated in Freedman are not constitutionally required in case of content-neutral regulations of permits for parks (this was advocated by Justice Harlan in Shuttlesworth, see above, though that was a vagueness case in fact).

This means most importantly²⁶⁶ that no prompt judicial review is constitutionally required, or, it is left undecided whether the judicial review is to be commenced or determined promptly. Also, it was of no concern that the park authority has almost a month to decide on the granting of permit. Thus, one might need to ask for a permit months before a planned demonstration with over fifty participants in any of Chicago’s parks and other public property, if one wants to be sure to go on with the demonstration on or around the planned date (ie judicial review included).

Thomas v. Chicago Park district shows the rather distorted nature of the allegedly speech protective American law when it comes to freedom of assembly, largely caused by the content neutrality or time, manner and place doctrine.²⁶⁷ Such an outcome is not possible in Europe since the Baczkowski judgment of the ECHR, as it will be explained below. Nonetheless, it has to be noted that lower courts in the U.S. are often willing to strike down permit schemes with long deadlines and even notification regimes especially when it comes to smaller or single-person demonstrations or performances.²⁶⁸ If one adds to this that Thomas was a facial challenge, it cannot be excluded that in the near future

266 Freedman 380 U.S. 51 (1965) 58-59 requires that „noncriminal process which requires the prior submission of a film to a censor avoids constitutional infirmity only if it takes place under procedural safeguards designed to obviate the dangers of a censorship system. First, the burden of proving that the film is unprotected expression must rest on the censor…..exhibitor must be assured, by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film…. …[T]he procedure must also assure a prompt final judicial decision, to minimize the deterrent effect of an interim and possibly erroneous denial of a license.’

267 For a similar view see Robert H. Whorf, ‘The Dangerous Intersection at ‘Prior Restraint’ and ‘Time, Place, Manner’: A Comment an Thomas v. Chicago Park District’, 3Barry L. Rev.1 (2002).

268 See the discussion in Nathan W. Kellum, ‘Permit Schemes: Under Current Jurisprudence, What Permits Are Permitted?’ 56 Drake L. Rev. 381 (2008), especially 405-422, and Edan Burkett, ‘Coordination or Mere Registration? Single-Speaker Permits in Berger v. City of Seattle’, 2010 B.Y.U. L. Rev. 931 (2010).

88 the USSC will refine its stance on prompt issuance of permits and speedy judicial remedy.

It is also clear that the press freedom cases can have some application to freedom of assembly, this, however, happens through the wide understanding of the concept of the press, and not through a wide understanding of the ban on prior restraint. In Lovell v.

Griffin, the Court spelled out that²⁶⁹

[t]he liberty of the press is not confined to newspapers and periodicals. It necessarily embraces pamphlets and leaflets. These indeed have been historic weapons in the defense of liberty, as the pamphlets of Thomas Paine and others in our own history abundantly attest. The press, in its historic connotation, comprehends every sort of publication which affords a vehicle of information and opinion.

That means that ordinances which condition leafleting, handbilling, and similar activities – which often, even typically accompany demonstrations and protests – on a prior permit, are unconstitutional.