SOUTER, J., dissenting

pre-empt them clear. See Rice, 331 U. S., at 230. The Act does not, in so many words, pre-empt all state regulation of issues on which federal standards have been promulgated, and respondent's contention at oral argument that reading subsections (a), (b), and (h) could leave no other "logical" conclusion but one of pre-emption is wrong. Each provision can be read consistently with the others without any implication of pre-emptive intent. See National Solid Wastes Management Assn. v. Killian, 918 F. 2d 671, 685-688 (CA7 1990) (Easterbrook, J., dubitante). They are in fact just as consistent with a purpose and objective to permit overlapping state and federal regulation as with one to guarantee that employers and employees would be subjected to only one regulatory regime. Restriction to one such regime by precluding supplemental state regulation might or might not be desirable. But in the absence of any clear expression of congressional intent to pre-empt, I can only conclude that, as long as compliance with federally promulgated standards does not render obedience to Illinois' regulations impossible, the enforcement of the state law is not prohibited by the Supremacy Clause. I respectfully dissent.

Syllabus

FORSYTH COUNTY, GEORGIA v. NATIONALIST MOVEMENT

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 91-538. Argued March 31, 1992-Decided June 19, 1992 Petitioner county's Ordinance 34 mandates permits for private demonstrations and other uses of public property; declares that the cost of protecting participants in such activities exceeds the usual and normal cost of law enforcement and should be borne by the participants; requires every permit applicant to pay a fee of not more than $1,000; and empowers the county administrator to adjust the fee's amount to meet the expense incident to the ordinance's administration and to the maintenance of public order. After the county attempted to impose such a fee for respondent's proposed demonstration in opposition to the Martin Luther King, Jr., federal holiday, respondent filed this suit, claiming that the ordinance violates the free speech guarantees of the First and Fourteenth Amendments. The District Court denied relief, ruling that the ordinance was not unconstitutional as applied in this case. The Court of Appeals reversed, holding that an ordinance which charges more than a nominal fee for using public forums for public issue speech is facially unconstitutional.

Held: The ordinance is facially invalid. Pp. 129-137.

(a) In order to regulate competing uses of public forums, government may impose a permit requirement on those wishing to hold a march, parade, or rally, if, inter alia, the permit scheme does not delegate overly broad licensing discretion to a government official, Freedman v. Maryland, 380 U. S. 51, 56, and is not based on the content of the message, see United States v. Grace, 461 U. S. 171, 177. Pp. 129-130.

(b) An examination of the county's implementation and authoritative constructions of the ordinance demonstrates the absence of the constitutionally required "narrowly drawn, reasonable and definite standards," Niemotko v. Maryland, 340 U. S. 268, 271, to guide the county administrator's hand when he sets a permit fee. The decision how much to charge for police protection or administrative time-or even whether to charge at all-is left to the unbridled discretion of the administrator, who is not required to rely on objective standards or provide any explanation for his decision. Pp. 130-133.

(c) The ordinance is unconstitutionally content based because it requires that the administrator, in order to assess accurately the cost of

Opinion of the Court

security for parade participants, must examine the content of the message conveyed, estimate the public response to that content, and judge the number of police necessary to meet that response. Cox v. New Hampshire, 312 U. S. 569, distinguished. Pp. 133-136.

(d) Neither the $1,000 cap on the permit fee, nor even some lower "nominal" cap, could save the ordinance. Murdock v. Pennsylvania, 319 U. S. 105, 116, distinguished. The level of the fee is irrelevant in this context, because no limit on the fee's size can remedy the ordinance's constitutional infirmities. Pp. 136-137.

913 F.2d 885 and 934 F. 2d 1482, affirmed.

BLACKMUN, J., delivered the opinion of the Court, in which STEVENS, O'CONNOR, KENNEDY, and SOUTER, JJ., joined. REHNQUIST, C. J., filed a dissenting opinion, in which WHITE, SCALIA, and THOMAS, JJ., joined, post, p. 137.

Robert S. Stubbs III argued the cause for petitioner. With him on the briefs was Gordon A. Smith.

Richard Barrett argued the cause and filed a brief for respondent.*

JUSTICE BLACKMUN delivered the opinion of the Court.

In this case, with its emotional overtones, we must decide whether the free speech guarantees of the First and Fourteenth Amendments are violated by an assembly and parade ordinance that permits a government administrator to vary the fee for assembling or parading to reflect the estimated cost of maintaining public order.

I

Petitioner Forsyth County is a primarily rural Georgia county approximately 30 miles northeast of Atlanta. It has

*Jody M. Litchford filed a brief for the city of Orlando et al. as amici curiae urging reversal.

Briefs of amici curiae urging affirmance were filed for the American Civil Liberties Union et al. by Eric Neisser, Steven R. Shapiro, John A. Powell, and Elliot M. Mincberg; for the American Federation of Labor and Congress of Industrial Organizations by Marsha S. Berzon and Laurence Gold; and for Public Citizen by David C. Vladeck and Alan B. Morrison.

Opinion of the Court

had a troubled racial history. In 1912, in one month, its entire African-American population, over 1,000 citizens, was driven systematically from the county in the wake of the rape and murder of a white woman and the lynching of her accused assailant.1 Seventy-five years later, in 1987, the county population remained 99% white.2

Spurred by this history, Hosea Williams, an Atlanta city councilman and civil rights personality, proposed a Forsyth County "March Against Fear and Intimidation" for January 17, 1987. Approximately 90 civil rights demonstrators attempted to parade in Cumming, the county seat. The marchers were met by members of the Forsyth County Defense League (an independent affiliate of respondent, The Nationalist Movement), of the Ku Klux Klan, and other Cumming residents. In all, some 400 counterdemonstrators lined the parade route, shouting racial slurs. Eventually, the counterdemonstrators, dramatically outnumbering police officers, forced the parade to a premature halt by throwing rocks and beer bottles.

Williams planned a return march the following weekend. It developed into the largest civil rights demonstration in the South since the 1960's. On January 24, approximately 20,000 marchers joined civil rights leaders, United States Senators, Presidential candidates, and an Assistant United States Attorney General in a parade and rally. The 1,000 counterdemonstrators on the parade route were contained

3

1The 1910 census counted 1,098 African-Americans in Forsyth County. U. S. Dept. of Commerce, Bureau of Census, Negro Population 1790-1915, p. 779 (1918). For a description of the 1912 events, see generally Hackworth, "Completing the Job" in Forsyth County, 8 Southern Exposure 26 (1980).

2 See J. Clements, Georgia Facts 184 (1989); Hackworth, 8 Southern Exposure, at 26 ("[O]ther than an occasional delivery truck driver or visiting government official, there are currently no black faces anywhere in the county").

3 See Chicago Tribune, Jan. 25, 1987, p. 1; Los Angeles Times, Jan. 25, 1987, p. 1, col. 2; App. to Pet. for Cert. 89-91.

Opinion of the Court

by more than 3,000 state and local police and National Guardsmen. Although there was sporadic rock throwing and 60 counterdemonstrators were arrested, the parade was not interrupted. The demonstration cost over $670,000 in police protection, of which Forsyth County apparently paid a small portion. See App. to Pet. for Cert. 75-94; Los Angeles Times, Jan. 28, 1987, Metro section, p. 5, col. 1.

4

"As a direct result" of these two demonstrations, the Forsyth County Board of Commissioners enacted Ordinance 34 on January 27, 1987. See Brief for Petitioner 6. The ordinance recites that it is "to provide for the issuance of permits for parades, assemblies, demonstrations, road closings, and other uses of public property and roads by private organizations and groups of private persons for private purposes." See App. to Pet. for Cert. 98. The board of commissioners justified the ordinance by explaining that "the cost of necessary and reasonable protection of persons participating in or observing said parades, assemblies, demonstrations, road closings and other related activities exceeds the usual and normal cost of law enforcement for which those participating should be held accountable and responsible." Id., at 100. The ordinance required the permit applicant to defray these costs by paying a fee, the amount of which was to be fixed "from time to time" by the Board. Id., at 105.

Ordinance 34 was amended on June 8, 1987, to provide that every permit applicant “shall pay in advance for such permit, for the use of the County, a sum not more than $1,000.00 for each day such parade, procession, or open air public meeting shall take place."" Id., at 119.5 In addition, the county

4 Petitioner Forsyth County does not indicate what portion of these costs it paid. Newspaper articles reported that the State of Georgia paid an estimated $579,148. Other government entities paid an additional $29,759. Figures were not available for the portion paid by the city of Atlanta for the police it sent. See id., at 95-97.

5 The ordinance was amended at other times, too, but those amendments are not under challenge here.