What to do when a government agency requires a permit and insurance to protest

Answer

Under the First Amendment and the equivalent provision in the California Constitution, the state is allowed to impose reasonable, content-neutral and narrowly-tailored “time, place and manner” regulations on the exercise of free speech in areas that are open for such activity.  The question would be whether the permit fee and insurance requirements are reasonable.

The courts have held that a registration fee or deposit may be required where the permitting authority will likely incur additional costs from the exercise of free speech rights as long as that fee “bears a reasonable relationship to the costs likely to be incurred.”  H-CHH Associates v. Citizens for Representative Gov’t, 193 Cal. App. 3d 1193, 1212 (1987).  The question would be whether $648 would be too much.  More than 60 years ago, the U.S. Supreme Court upheld a permit fee of up to $300 per day.  Cox v. New Hampshire, 312 U.S. 569 (1941).  More recently, the California Court of Appeal upheld city permit fees that were “nearly 50 times higher” than the amount in Cox (i.e., nearly $15,000) where that had been the actual cost to the city of traffic control, clean up and the like.  Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 14 Cal. App. 4th 312 (1993).

However, if the park system cannot justify the $648 as being tied to the actual cost to the system of hosting the protest, or if the amount of the permit fee is not constant and can be adjusted in the discretion of park officials, it may well be unconstitutional.  Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992) (striking down as unconstitutional a parade permit fee, the amount of which was set by the county administrator, subject to a $1,000 cap because it granted too much discretion to the administrator to decide how much to charge, and thus to charge more based on content the administrator disliked rather than for content-neutral reasons).

As for the insurance requirement, the California Court of Appeal and other courts have invalidated an insurance requirement imposed by Long Beach as a prerequisite to obtaining a parade permit, partly on the ground that the insurance requirement was not needed in light of the ability of the city to charge a permit fee to cover the cost to the city of the parade (at least absent evidence that the state park system has actually had to rely on the insurance in prior protests).  Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 14 Cal. App. 4th 312, 342 (1993).  As that case recognized, “Other courts that have reviewed parade insurance requirements have uniformly found them to overreach, in view of the overlapping utility and availability of other means of protection as referred to above, and the concomitant absence of a history of claims and hence need for expensive, high-limit coverage. (Eastern Conn. Citizens Action Group v. Powers (2d Cir. 1983) 723 F.2d 1050, 1056-1057; Invisible Empire, KKK v. Mayor et al. of Thurmont, supra, 700 F.Supp. at p. 285; Collin v. Smith (N.D.Ill. 1978) 447 F.Supp. 676, 685, affd. (7th Cir.)   578 F.2d 1197.)  Here too, where the cost of the insurance has closely threatened (until preliminarily enjoined) to prevent plaintiffs’ protected activity yet that coverage has never had to be called upon, [the]s insurance requirement  appears to be a relatively gratuitous burden, “substantially broader than necessary to achieve the government’s interest.” ( Ward v. Rock Against Racism, supra, 491 U.S. at p. 800 [105 L.Ed.2d at p. 681].)  Id.