Legal Commentary

Planning to Burn a Koran = $200,000 Bill from the Government for Policing Costs?

By Eugene Volokh

The Gainesville Sun reports:

The cost of policing the Dove World Outreach Center for the planned Quran burning that never happened is expected to come to about $100,000 each for the Gainesville Police Department and the Alachua County Sheriff?s Office, officials say.

And Gainesville City Manager Russ Blackburn said the city intends to present a bill for the costs to the church?s senior pastor, Terry Jones....

Except that charging people money for extra policing, because of a fear that thugs would react violently to their speech, is unconstitutional, see Forsyth County v. Nationalist Movement (1992). In Forsyth, the Court held unconstitutional an ordinance under which the fee for parade permits was based partly on the likely cost of police protection, which in turn reflected the possibility of violent reaction to the speech. The Court held this even though the fee in that case was capped at $1,000; and the Court?s reasoning strikes me as applying just as much to after-the-fact demands for reimbursement of policing costs (note that most of the precedents the Court cites below are not limited to licensing schemes):

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 appropriate instances, will assess a fee to cover ?the cost of necessary and reasonable protection of persons participating in or observing said ... activit[y].? See 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 Cal., 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, it contends 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 id., 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. Pennsylvania, 319 U. S. 105, 116 (1943); cf. Schneider v. State (Town of Irvington), 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.[12] 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. v. Member of N.Y. State Crime Victims Bd., 502 U. S. 105, 116 (1991); 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 id., at 229?231.

Full post as published by The Volokh Conspiracy on September 17, 2010 (boomark / email).