Megan Kauffman, Associate Member, University of Cincinnati Law Review
In August 2018, the National Park Service (NPS) issued a proposal to revise regulations related to special events and demonstrations held at the National Mall, Memorial Parks, and President’s Park.[1] One of the proposed changes involves requiring permit applicants to pay fees to host demonstrations in those areas, including demonstrations that contain protected speech.[2] Because the National Mall and surrounding parks are considered traditional public fora, the question the proposed revision raises is whether citizens’ First Amendment rights are violated if they have to pay to protest.
Proposed Rule
The proposed revision to require permit applicants to pay fees to recover costs applies only to demonstrations, which is defined by the NPS as “includ[ing] demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct that involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which is reasonably likely to draw a crowd or onlookers.”[3] The NPS already has the authority to recover the costs for any special events held at the National Mall or surrounding parks.[4] Special events are defined as “[s]ports events, pageants, regattas, public spectator attractions, entertainments, ceremonies, and similar events.”[5] With regards to special events, the NPS currently recovers an application processing fee and is in the process of creating a more extensive recovery program.[6]
The NPS seeks to recover costs for the following categories: event management (excluding law enforcement personnel and activities), material and supply costs, costs for clean-up and restoration, permit application costs, and resource damage costs.[7] The NPS sought comments on whether it should establish an indigency waiver for demonstrators who cannot afford the cost recovery and how it could provide advance notice of the types and amounts that could be recovered.[8]
Traditional Public Forum
The Supreme Court has categorized public spaces into three categories based on the level of scrutiny required to pass an ordinance, regulation, or rule regarding the right to assemble and free speech. The three categories are (1) the traditional public forum, (2) the designated public forum (either “limited” or “unlimited”), and (3) the non-public forum.[9] With regards to the traditional public forum, the Supreme Court stated that “streets and parks . . . have immemorially been held in trust for the use of the public and . . . have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.”[10] The National Mall qualifies as a traditional public forum because “by long tradition or by government fiat [it] has been devoted to assembly and debate.”[11] Any regulation, ordinance, or rule must pass strict scrutiny when the venue is a traditional public forum; there must be a compelling interest and the regulation must be narrowly drawn to achieve that end.[12]
Analysis
The NPS accepted public comments on the proposed revisions from August 15 to October 15, 2018.[13] Over the course of 71,054 comments received, clear arguments were made for both sides of the revision. The vast majority of comments stated that individuals feel that the proposed regulations were a violation of their First Amendment right to assemble and freedom of speech.[14] The proposal to recover costs for demonstrations is seen as a barrier set forth by the government to prevent or reduce demonstrations on the National Mall.[15] The NPS states that the fees would be used to recover any potential costs from damage, clean-up, and supplies needed, but an upfront fee paid at the time of a permit application would be a premature payment for costs that might not be incurred. Notification of a fee might dissuade protestors from exercising their First Amendment rights that are protected under the Constitution. In instances where the demonstrations would draw a multitude of participants, such as the Women’s March, the revenue brought into the city through taxes and other governmental fees could offset the costs incurred during the actual demonstration.
The NPS is also not clear on how a fee would be applied to varying demonstrations. It does not state whether the amount that would be required is based on the amount of participants the demonstration is anticipating or if it would be a flat fee applied to every demonstration. Either way, the amount required might not be sufficient to cover costs or it might be overly exorbitant. If a demonstration organizer is anticipating hundreds of thousands of participants and only a few hundred show up, would the NPS reimburse the organizers for the funds that were not used? Or if an organizer expects a few hundred participants and a few hundred thousand show up, is the NPS going to charge the organizer for any discrepancies between the amount of participants? If the fee is set at a flat rate for all demonstrations regardless of the number of participants, is it fair that someone who is organizing a demonstration of ten participants be charged the same amount of someone who is organizing for thousands of participants? The NPS needs to make the application of the fee proposal more clear and then request comments before accepting this regulation.
With regards to the indigency waiver, the NPS does not have a clear direction on how it would determine who would be eligible for an indigency exception. From the proposed rule, it appears that the NPS could use its own discretion to determine which demonstrations would qualify. There are no listed factors that the NPS would use to decide if a demonstration is eligible. Not knowing whether fees would have to be paid in advance could deter individuals from organizing. Any type of deterrence regarding the right of assembly and freedom of speech is possibly seen as violating citizens’ longstanding First Amendment rights.
On the other hand, there are comments on the proposed rule that are in favor of demonstration fees.[16] A minority of individuals feel that the government should not have to incur the costs of citizens protesting. They feel that organizers and participants should have to pay for any sanitation or trash clean-up, any recovery costs for damages, and costs for used supplies. They feel that taxpayers’ money should not be used to cover these costs when it is needed to fund other governmental programs. Some of the comments state that a person’s First Amendment rights would not be violated as the indigency waiver could cover any demonstrations in which the organizers could not cover costs.
Regardless of which side a person falls on the issue, the NPS needs to be more clear about the type and amount of costs it would seek to charge demonstration applicants. At this point, the proposed rule is too general for any consensus to be made on the issue. It is difficult to determine whether an individual’s First Amendment rights are violated when there is no distinct and itemized fee schedule available for review. If the costs are overly exorbitant or an indigency waiver is almost impossible to acquire, the likelihood that the citizens’ rights would be infringed upon are much higher. However, if the fees are minimal and indigency waiver requirements are not extreme, the NPS could have a stronger argument for charging recovery
[1] Special Regulations, Areas of the National Park System, National Capital Region, Special Events and Demonstrations, 83 Fed. Reg. 40460 (Aug. 15, 2018). Federal Register: The Daily Journal of the United States. Web. 15 August 2018.
[2] Id.
[3] 36 C.F.R. § 2.51(a) (Lexis Advance through the October 31, 2018 issue of the Federal Register. Title 3 is current through October 5, 2018).
[4] 54 U.S.C.S. § 103104 (2014).
[5] 36 C.F.R. § 2.50(a) (Lexis Advance through the October 31, 2018 issue of the Federal Register. Title 3 is current through October 5, 2018).
[6] Special Regulations, supra note 1.
[7] Id.
[8] Id.
[9] Perry Educ. Assn’n v. Perry Local Educators’ Ass’n, 460 U.S. 37, 45-46 (1983).
[10] Hague v. Committee for Indus. Org., 307 U.S. 496, 515 (1939).
[11] Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, supra note 9.
[12] Id.
[13] Supra note 1.
[14] Id.
[15] Id.
[16] Id.
