 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

          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 demon-
strations and other uses of public property; declares that the cost of
protecting participants in such activities exceeds the usual and nor-
mal 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 opposi-
tion to the Martin Luther King, Jr., federal holiday, respondent filed
this suit, claiming that the ordinance violates the free speech guaran-
tees 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.6-14.
(a)In order to regulate competing uses of public forums, govern-
ment 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.6-7.
(b)An examination of the county's implementation and authorita-
tive 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 adminstrator'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.7-10.
(c)The ordinance is unconstitutionally content-based because it
requires that the administrator, in order to assess accurately the cost
of 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.11-13.
(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.13-14.
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.



NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports.  Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D.C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES--------
            No. 91-538
             --------
FORSYTH COUNTY, GEORGIA, PETITIONER v.
          THE NATIONALIST MOVEMENT
on writ of certiorari to the united states court of
      appeals for the eleventh circuit
               [June 19, 1992]

  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
had a troubled racial history.  In 1912, in one month, its
entire African-American population, over 1000 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.  Seventy-five years later, in 1987, the
county population remained 99% white.
   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 counter-demonstra-
tors lined the parade route, shouting racial slurs.  Eventu-
ally, the counter-demonstrators, 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 1960s.  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
counter-demonstrators on the parade route were contained
by more than 3,000 state and local police and National
Guardsmen.  Although there was sporadic rock-throwing
and 60 counter-demonstrators 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;
L.A. Times, Jan. 28, 1987, Metro section, p. 5, col. 1.
     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
$1000.00 for each day such parade, procession, or open air
public meeting shall take place.  Id., at 119.  In addition,
the county administrator was empowered to  adjust the
amount to be paid in order to meet the expense incident to
the administration of the Ordinance and to the mainte-
nance of public order in the matter licensed.  Ibid.
  In January 1989, respondent The Nationalist Movement
proposed to demonstrate in opposition to the federal holiday
commemorating the birthday of Martin Luther King, Jr.  In
Forsyth County, the Movement sought to  conduct a rally
and speeches for one and a half to two hours on the
courthouse steps on a Saturday afternoon.  Nationalist
Movement v. City of Cumming, 913 F. 2d 885, 887 (CA11
1990).  The county imposed a $100 fee.  The fee did not
include any calculation for expenses incurred by law
enforcement authorities, but was based on 10 hours of the
county administrator's time in issuing the permit.  The
county administrator testified that the cost of his time was
deliberately undervalued and that he did not charge for the
clerical support involved in processing the application.  Tr.
135-139.
  The Movement did not pay the fee and did not hold the
rally.  Instead, it instituted this action on January 19, 1989,
in the United States District Court for the Northern
District of Georgia, requesting a temporary restraining
order and permanent injunction prohibiting Forsyth County
from interfering with the Movement's plans.
  The District Court denied the temporary restraining
order and injunction.  It found that, although  the instant
ordinance vests much discretion in the County Administra-
tor in determining an appropriate fee, the determination
of the fee was  based solely upon content-neutral criteria;
namely, the actual costs incurred investigating and process-
ing the application.  App. to Pet. for Cert. 13-14.  Although
it expressed doubt about the constitutionality of that
portion of the ordinance that permits fees to be based upon
the costs incident to maintaining public order, the District
Court found that  the county ordinance, as applied in this
case, is not unconstitutional. Id., at 14.
  The United States Court of Appeals for the Eleventh
Circuit reversed this aspect of the District Court's judg-
ment.  Nationalist Movement v. City of Cumming, 913 F. 2d
885 (1990).  Relying on its prior opinion in Central Florida
Nuclear Freeze Campaign v. Walsh, 774 F. 2d 1515, 1521
(CA11 1985), cert. denied, 475 U. S. 1120 (1986), the Court
of Appeals held:  An ordinance which charges more than a
nominal fee for using public forums for public issue speech,
violates the First Amendment.  913 F. 2d, at 891 (internal
quotations omitted).  The court determined that a permit
fee of up to $1000 a day exceeded this constitutional
threshold.  Ibid.  One judge concurred specially, calling for
Central Florida to be overruled.  Id., at 896.
  The Court of Appeals then voted to vacate the panel's
opinion and to rehear the case en banc.  921 F. 2d 1125
(1990).  After further briefing, the court issued a per curiam
opinion reinstating the panel opinion in its entirety.  934 F.
2d 1482, 1483 (1991).  Two judges, concurring in part and
dissenting in part, agreed that any fee imposed on the
exercise of First Amendment rights in a traditional public
forum must be nominal if it is to survive constitutional
scrutiny.  Those judges, however, did not believe that the
county ordinance swept so broadly that it was facially
invalid, and would have remanded the case for the District
Court to determine whether the fee was nominal.  Id., at
1483.  Three judges dissented, arguing that this Court's
cases do not require that fees be nominal.  Id., at 1493.
  We granted certiorari to resolve a conflict among the
Courts of Appeals concerning the constitutionality of
charging a fee for a speaker in a public forum.  ____
U. S.____ (1992).
                     II
  Respondent mounts a facial challenge to the Forsyth
County ordinance.  It is well established that in the area of
freedom of expression an overbroad regulation may be
subject to facial review and invalidation, even though its
application in the case under consideration may be constitu-
tionally unobjectionable.  See, e.g., City Council of Los
Angeles v. Taxpayers for Vincent, 466 U. S. 789, 798-799,
and n. 15 (1984); Board of Airport Comm'rs of Los Angeles
v. Jews for Jesus, Inc., 482 U. S. 569, 574 (1987).  This
exception from general standing rules is based on an
appreciation that the very existence of some broadly written
laws has the potential to chill the expressive activity of
others not before the court.  See, e.g., New York v. Ferber,
458 U. S. 747, 772 (1982); Brockett v. Spokane Arcades, Inc.,
472 U. S. 491, 503 (1985).  Thus, the Court has permitted
a party to challenge an ordinance under the overbreadth
doctrine in cases where every application creates an
impermissible risk of suppression of ideas, such as an
ordinance that delegates overly broad discretion to the
decisionmaker, see Thornhill v. Alabama, 310 U. S. 88, 97
(1940); Freedman v. Maryland, 380 U. S. 51, 56 (1965);
Taxpayers for Vincent, 466 U. S., at 798, n. 15, and in cases
where the ordinance sweeps too broadly, penalizing a
substantial amount of speech that is constitutionally
protected.  See Broadrick v. Oklahoma, 413 U. S. 601
(1973); Jews for Jesus, 482 U. S., at 574-575.
  The Forsyth County ordinance requiring a permit and a
fee before authorizing public speaking, parades, or assem-
blies in  the archetype of a traditional public forum, Frisby
v. Schultz, 487 U. S. 474, 480 (1988), is a prior restraint on
speech.  See Shuttlesworth v. Birmingham, 394 U. S. 147,
150-151 (1969); Niemotko v. Maryland, 340 U. S. 268, 271
(1951).  Although there is a  heavy presumption against
the validity of a prior restraint, Bantam Books, Inc v.
Sullivan, 372 U. S. 58, 70 (1963), the Court has recognized
that government, in order to regulate competing uses of
public forums, may impose a permit requirement on those
wishing to hold a march, parade, or rally.  See Cox v. New
Hampshire, 312 U. S. 569, 574-576 (1941).  Such a scheme,
however, must meet certain constitutional requirements.
It may not delegate overly broad licensing discretion to a
government official.  See Freedman v. Maryland, supra.
Further, any permit scheme controlling the time, place, and
manner of speech must not be based on the content of the
message, must be narrowly tailored to serve a significant
governmental interest, and must leave open ample alterna-
tives for communication.  See United States v. Grace, 461
U. S. 171, 177 (1983).
                      A
  Respondent contends that the county ordinance is facially
invalid because it does not prescribe adequate standards for
the administrator to apply when he sets a permit fee.  A
government regulation that allows arbitrary application is
 inherently inconsistent with a valid time, place, and
manner regulation because such discretion has the potential
for becoming a means of suppressing a particular point of
view.  Heffron v. International Society for Krishna Con-
sciousness, Inc., 452 U. S. 640, 649 (1981).  To curtail that
risk,  a law subjecting the exercise of First Amendment
freedoms to the prior restraint of a license must contain
 narrow, objective, and definite standards to guide the
licensing authority.  Shuttlesworth, 394 U. S., at 150-151;
see also Niemotko, 340 U. S., at 271.  The reasoning is
simple: If the permit scheme  involves appraisal of facts,
the exercise of judgment, and the formation of an opinion,
Cantwell v. Connecticut, 310 U. S. 296, 305 (1940), by the
licensing authority,  the danger of censorship and of
abridgment of our precious First Amendment freedoms is
too great to be permitted.  Southeastern Promotions, Ltd.
v. Conrad, 420 U. S. 546, 553 (1975).
  In evaluating petitioner's facial challenge, we must
consider the county's authoritative constructions of the
ordinance, including its own implementation and interpre-
tation of it.  See Ward v. Rock Against Racism, 491 U. S.
781, 795-796 (1989); Lakewood v. Plain Dealer Publishing
Co., 486 U. S. 750, 770, n. 11 (1988); Gooding v. Wilson, 405
U. S. 518, 524-528 (1972).  In the present litigation, the
county has made clear how it interprets and implements
the ordinance.  The ordinance can apply to any activity on
public property"-from parades, to street corner speeches,
to bike races"-and the fee assessed may reflect the county's
police and administrative costs.  Whether or not, in any
given instance, the fee would include any or all of the
county's administrative and security expenses is decided by
the county administrator.
  In this case, according to testimony at the District Court
hearing, the administrator based the fee on his own
judgment of what would be reasonable.  Although the
county paid for clerical support and staff as an  expense
incident to the administration of the permit, the adminis-
trator testified that he chose in this instance not to include
that expense in the fee.  The administrator also attested
that he had deliberately kept the fee low by undervaluing
the cost of the time he spent processing the application.
Even if he had spent more time on the project, he claimed,
he would not have charged more.  He further testified that,
in this instance, he chose not to include any charge for
expected security expense.  Tr. 135-139.
  The administrator also explained that the county had
imposed a fee pursuant to a permit on two prior occasions.
The year before, the administrator had assessed a fee of
$100 for a permit for the Movement.  The administrator
testified that he charged the same fee the following year
(the year in question here), although he did not state that
the Movement was seeking the same use of county property
or that it required the same amount of administrative time
to process.  Id., at 138.  The administrator also once
charged bike-race organizers $25 to hold a race on county
roads, but he did not explain why processing a bike-race
permit demanded less administrative time than processing
a parade permit or why he had chosen to assess $25 in that
instance.  Id., at 143-144.  At oral argument in this Court,
counsel for Forsyth County stated that the administrator
had levied a $5 fee on the Girl Scouts for an activity on
county property.  Tr. of Oral Arg. 26.  Finally, the adminis-
trator testified that in other cases the county required
neither a permit nor a fee for activities in other county
facilities or on county land.  Tr. 146.
        Based on the county's implementation and construction
of the ordinance, it simply cannot be said that there are any
 narrowly drawn, reasonable and definite standards,
Niemotko, 340 U. S., at 271, guiding the hand of the
Forsyth County administrator.  The decision how much to
charge for police protection or administrative time"or even
whether to charge at all"is left to the whim of the adminis-
trator.  There are no articulated standards either in the
ordinance or in the county's established practice.  The
administrator is not required to rely on any objective
factors.  He need not provide any explanation for his
decision, and that decision is unreviewable.  Nothing in the
law or its application prevents the official from encouraging
some views and discouraging others through the arbitrary
application of fees.  The First Amendment prohibits the
vesting of such unbridled discretion in a government
official.
                         B
  The Forsyth County ordinance contains more than the
possibility of censorship through uncontrolled discretion.
As construed by the county, the ordinance often requires
that the fee be based on the content of the speech.
  The county envisions that the administrator, in appropri-
ate instances, will assess a fee to cover  the cost of neces-
sary and reasonable protection of persons participating in
or observing said . . . activit[y].  See App. to Pet. for Cert.
100.  In order to assess accurately the cost of security for
parade participants, the administrator  `must necessarily
examine the content of the message that is conveyed,'
Arkansas Writers' Project, Inc. v. Ragland, 481 U. S. 221,
230 (1987), quoting FCC v. League of Women Voters of
California, 468 U. S. 364, 383 (1984), estimate the response
of others to that content, and judge the number of police
necessary to meet that response.  The fee assessed will
depend on the administrator's measure of the amount of
hostility likely to be created by the speech based on its
content.  Those wishing to express views unpopular with
bottle-throwers, for example, may have to pay more for
their permit.
  Although petitioner agrees that the cost of policing
relates to content, see Tr. of Oral Arg. 15 and 24, it con-
tends that the ordinance is content-neutral because it is
aimed only at a secondary effect"the cost of maintaining
public order.  It is clear, however, that, in this case, it
cannot be said that the fee's justification  `ha[s] nothing to
do with content.'  Ward, 491 U. S., at 792, quoting Boos v.
Barry, 485 U. S. 312, 320 (1988) (opinion of O'Connor, J.).
  The costs to which petitioner refers are those associated
with the public's reaction to the speech.  Listeners' reaction
to speech is not a content-neutral basis for regulation.  See
Boos v. Barry, 485 U. S., at 321 (opinion of O'Connor, J.);
id., at 334 (opinion of Brennan, J.); Hustler Magazine, Inc.
v. Falwell, 485 U. S. 46, 55-56 (1988); Murdock v. Pennsyl-
vania, 319 U. S. 105, 116 (1943); cf. Schneider v. State, 308
U. S. 147, 162 (1939) (fact that city is financially burdened
when listeners throw leaflets on the street does not justify
restriction on distribution of leaflets).  Speech cannot be
financially burdened, any more than it can be punished or
banned, simply because it might offend a hostile mob.
See Gooding v. Wilson, 405 U. S. 518 (1972); Terminiello v.
Chicago, 337 U. S. 1 (1949).
  This Court has held time and again:  Regulations which
permit the Government to discriminate on the basis of the
content of the message cannot be tolerated under the First
Amendment.  Regan v. Time, Inc., 468 U. S. 641, 648-649
(1984); Simon & Schuster, Inc., 502 U. S., at  ___ (slip op.
9); Arkansas Writers' Project, 481 U. S., at 230.  The county
offers only one justification for this ordinance: raising
revenue for police services.  While this undoubtedly is an
important government responsibility, it does not justify a
content-based permit fee.  See Arkansas Writers' Project,
481 U. S., at 229-231.
  Petitioner insists that its ordinance cannot be unconstitu-
tionally content-based because it contains much of the same
language as did the state statute upheld in Cox v. New
Hampshire, 312 U. S. 569 (1941).  Although the Supreme
Court of New Hampshire had interpreted the statute at
issue in Cox to authorize the municipality to charge a
permit fee for the  maintenance of public order, no fee was
actually assessed.  See id., at 577.  Nothing in this Court's
opinion suggests that the statute, as interpreted by the
New Hampshire Supreme Court, called for charging a
premium in the case of a controversial political message
delivered before a hostile audience.  In light of the Court's
subsequent First Amendment jurisprudence, we do not read
Cox to permit such a premium.
                      C
  Petitioner, as well as the Court of Appeals and the
District Court, all rely on the maximum allowable fee as
the touchstone of constitutionality.  Petitioner contends that
the $1,000 cap on the fee ensures that the ordinance will
not result in content-based discrimination.  The ordinance
was found unconstitutional by the Court of Appeals because
the $1,000 cap was not sufficiently low to be  nominal.
Neither the $1,000 cap on the fee charged, nor even some
lower nominal cap, could save the ordinance because in this
context, the level of the fee is irrelevant.  A tax based on
the content of speech does not become more constitutional
because it is a small tax.
       The lower courts derived their requirement that the
permit fee be  nominal from a sentence in the opinion in
Murdock v. Pennsylvania, 319 U. S. 105 (1943).  In
Murdock, the Court invalidated a flat license fee levied on
distributors of religious literature.  In distinguishing the
case from Cox, where the Court upheld a permit fee, the
Court stated:  And the fee is not a nominal one, imposed as
a regulatory measure and calculated to defray the expense
of protecting those on the streets and at home against the
abuses of solicitors.  319 U. S., at 116.  This sentence does
not mean that an invalid fee can be saved if it is nominal,
or that only nominal charges are constitutionally permissi-
ble.  It reflects merely one distinction between the facts in
Murdock and those in Cox.
  The tax at issue in Murdock was invalid because it was
unrelated to any legitimate state interest, not because it
was of a particular size.  Similarly, the provision of the
Forsyth County ordinance relating to fees is invalid because
it unconstitutionally ties the amount of the fee to the
content of the speech and lacks adequate procedural
safeguards; no limit on such a fee can remedy these
constitutional violations.
  The judgment of the Court of Appeals is affirmed.

                          It is so ordered.



        SUPREME COURT OF THE UNITED STATES--------
                       No. 91-538
                        --------
         FORSYTH COUNTY, GEORGIA, PETITIONER v.
                     THE NATIONALIST MOVEMENT
        on writ of certiorari to the united states court of
                 appeals for the eleventh circuit
                          [June 19, 1992]

       Chief Justice Rehnquist, with whom Justice White,
Justice Scalia, and Justice Thomas join, dissenting.
       We granted certiorari in this case to consider the follow-
ing question:
           ``Whether the provisions of the First Amendment to
the United States Constitution limit the amount of a
license fee assessed pursuant to the provisions of a
county parade ordinance to a nominal sum or whether
the amount of the license fee may take into account the
actual expense incident to the administration of the
ordinance and the maintenance of public order in the
matter licensed, up to the sum of $1,000.00 per day of
the activity.  Pet. for Cert. i.
    The Court's discussion of this question is limited to an
ambiguous and noncommittal paragraph toward the very
end of the opinion.  Ante, at 14.  The rest of the opinion
takes up and decides other perceived unconstitutional
defects in the Forsyth County ordinance.  None of these
claims were passed upon by the Court of Appeals; that
court decided only that the First Amendment forbade the
charging of more than a nominal fee for a permit to parade
on public streets.  Since that was the question decided by
the Court of Appeals below, the question which divides the
courts of appeals, and the question presented in the petition
for certiorari, one would have thought that the Court would
at least authoritatively decide, if not limit itself to, that
question.
                          I
       The answer to this question seems to me quite simple,
because it was authoritatively decided by this Court more
than half a century ago in Cox v. New Hampshire, 312 U. S.
569 (1941).  There we confronted a State statute which
required payment of a license fee of up to $300 to local
governments for the right to parade in the public streets.
The Supreme Court of New Hampshire had construed the
provision as requiring that the amount of the fee be
adjusted based on the size of the parade, as the fee  for a
circus parade or a celebration procession of length, each
drawing crowds of observers, would take into account the
greater public expense of policing the spectacle, compared
with the slight expense of a less expansive and attractive
parade or procession.  Id., at 577 (internal quotation marks
omitted).  Under the state court's construction, the fee
provision was  not a revenue tax, but one to meet the
expense incident to the administration of the Act and to the
maintenance of public order in the matter licensed. Ibid.
(internal quotation marks omitted).  This Court, in a
unanimous opinion by Chief Justice Hughes, upheld the
statute, saying:
 There is nothing contrary to the Constitution in the
charge of a fee limited to the purpose stated.  The
suggestion that a flat fee should have been charged
fails to take account of the difficulty of framing a fair
schedule to meet all circumstances, and we perceive no
constitutional ground for denying to local governments
that flexibility of adjustment of fees which in the light
of varying conditions would tend to conserve rather
than impair the liberty sought.

``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.  Ibid.
    Two years later, in Murdock v. Pennsylvania, 319 U. S.
105, (1943), this Court confronted a municpal ordinance
that required payment of a flat license fee for the privilege
of canvassing door-to-door to sell one's wares.  Pursuant to
that ordinance, the city had levied the flat fee on a group of
Jehovah's Witnesses who sought to distribute religious
literature door-to-door for a small price.  Id., at 106-107.
The Court held that the flat license tax, as applied against
the hand distribution of religious tracts, was unconstitu-
tional, on the ground that it was  a flat tax imposed on the
exercise of a privilege granted by the Bill of Rights.  Id., at
113.  In making this ruling, the Court distinguished Cox by
stating that  the fee is not a nominal one, imposed as a
regulatory measure and calculated to defray the expense of
protecting those on the streets and at home against the
abuses of solicitors.  Id., at 116.  This language, which
suggested that the fee involved in Cox was only nominal,
led the Court of Appeals for the Eleventh Circuit in the
present case to conclude that a city is prohibited from
charging any more than a nominal fee for a parade permit.
913 F. 2d 885, 890-891, and n. 6 (1990).  But the clear
holding of Cox is to the contrary.  In that case, the Court
expressly recognized that the New Hampshire state statute
allowed a city to levy much more than a nominal parade
fee, as it stated that the fee provision  had a permissible
range from $300 to a nominal amount.  Cox v. New
Hampshire, supra, at 576.  The use of the word  nominal
in Murdock was thus unfortunate, as it represented a
mistaken characterization of the fee statute in Cox.  But a
mistaken allusion in a later case to the facts of an earlier
case does not by itself undermine the holding of the earlier
case.  The situations in Cox and Murdock were clearly
different; the first involved a sliding fee to account for
administrative and security costs incurred as a result of a
parade on public property, while the second involved a flat
tax on protected religious expression.  I believe that the
decision in Cox squarely controls the disposition of the
question presented in this case, and I therefore would
explicitly hold that the Constitution does not limit a parade
license fee to a nominal amount.
                           II
       Instead of deciding the particular question on which we
granted certiorari, the Court concludes that the county
ordinance is facially unconstitutional because it places too
much discretion in the hands of the county administrator
and forces parade participants to pay for the cost of
controlling those who might oppose their speech.  Ante, at
7-14.  But, because the lower courts did not pass on these
issues, the Court is forced to rely on its own interpretation
of the ordinance in making these rulings.  The Court
unnecessarily reaches out to interpret the ordinance on its
own at this stage, even though there are no lower court
factual findings on the scope or administration of the
ordinance.  Because there are no such factual findings, I
would not decide at this point whether the ordinance fails
for lack of adequate standards to guide discretion or for
incorporation of a  heckler's veto, but would instead
remand the case to the lower courts to initially consider
these issues.
       The Court first finds fault with the alleged standardless
discretion possessed by the county administrator.  The
ordinance provides that the administrator  shall adjust the
amount to be paid in order to meet the expense incident to
the administration of the Ordinance and to the mainte-
nance of public order in the matter licensed.  App. to Pet.
for Cert. 119.  In this regard, the ordinance clearly parallels
the construction of the statute we upheld in Cox.  312 U. S.,
at 577 (statute did not impose  a revenue tax, but one to
meet the expense incident to the administration of the Act
and to the maintenance of public order in the matter
licensed (internal quotation marks omitted)).  The Court
worries, however, about the possibility that the administra-
tor has the discretion to set fees based upon his approval of
the message sought to be conveyed, and concludes that
 the county's authoritative constructio[n] of the ordinance
allows for such a possibility.  Ante, at 8.  The Court
apparently envisions a situation where the administrator
would impose a $1,000 parade fee on a group whose
message he opposed, but would waive the fee entirely for a
similarly situated group with whom he agreed.  But the
county has never rendered any  authoritative construction
indicating that officials have  unbridled discretion, ante, at
10, in setting parade fees, nor has any lower court so found.
In making its own factual finding that the ordinance does
allow for standardless fee setting, this Court simply cites
four situations in which the administrator set permit
fees"two fees of $100, one of $25, and one of $5.  Ante, at
9.  On the basis of this evidence, the Court finds that the
administrator has unbridled discretion to set permit fees.
The mere fact that the permit fees differed in amount does
not invalidate the ordinance, however, as our decision in
Cox clearly allows a governmental entity to adopt an
adjustable permit fee scheme.  See Cox v. New Hampshire,
supra, at 577 ( [W]e perceive no constitutional ground for
denying to local governments th[e] flexibility of adjustment
of fees).  It is true that the Constitution does not permit a
system in which the county administrator may vary fees at
his pleasure, but there has been no lower court finding that
that is what this fledgling statute creates.  And, given the
opportunity, the District Court might find that the county
has a policy that precludes the administrator from arbi-
trarily imposing fees.  Of course, the District Court might
find that the administrator does possess too much discre-
tion.  In either case, I believe findings by the District Court
on the issue would be preferable.
      The Court relies on Ward v. Rock Against Racism, 491
U. S. 781, 795-796 (1989), for the proposition that the
county's interpretation of the ordinance must be considered.
In that case, however, we relied upon District Court
findings concerning New York City's limiting interpretation
of a noise regulation.  Id. at 795.  I would prefer to remand
this case so that the Court might rely on such express
findings here as well.
       The Court's second reason for invalidating the ordinance
is its belief that any fee imposed will be based in part on
the cost of security necessary to control those who oppose
the message endorsed by those marching in a parade.
Assuming 100 people march in a parade and 10,000 line the
route in protest, for example, the Court worries that, under
this ordinance, the county will charge a premium to control
the hostile crowd of 10,000, resulting in the kind of  heck-
ler's veto we have previously condemned.  Ante, at 11-13.
But there have been no lower court findings on the question
of whether or not the county plans to base parade fees on
anticipated hostile crowds.  It has not done so in any of the
instances where it has so far imposed fees.  Ante, at 9.  And
it most certainly did not do so in this case.  The District
Court below noted that:
``[T]he instant ordinance alternatively permits fees to
be assessed based upon `the expense incident to . . . the
maintenance of public order.'  If the county had applied
this portion of the statute, the phrase might run afoul
of . . . constitutional concerns. . . .
        ``However, in the instant case, plaintiff did not base
their [sic] argument upon this phrase, but contended
that the mere fact that a $100 fee was imposed is
unconstitutional, especially in light of the organiza-
tion's financial circumstances.  The evidence was clear
that the fee was based solely upon the costs of process-
ing the application and plaintiff produced no evidence
to the contrary.''  App. to Pet. for Cert. 14 (emphasis
added).
The Court's analysis on this issue rests on an assumption
that the county will interpret the phrase  maintenance of
public order to support the imposition of fees based on
opposition crowds.  There is nothing in the record to
support this assumption, however, and I would remand for
a hearing on this question.
       For the foregoing reasons, I dissent.


