Supreme Court forbids charging fees for police protection of protesters No fees on speech, 5-4 majority rules

June 20, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau

WASHINGTON -- A sharply divided Supreme Court went far yesterday toward forbidding local governments to force organizers of controversial marches and demonstrations to pay the added cost of providing police to protect them.

Although a planned protest likely to stir a hostile response may mean that counties or cities will run up extra police costs, officials may not charge fees to help defray the added spending, the court majority said.

Moving on to curb federal power, the court in a second ruling imposed historic new limits on Congress' power to compel the states to help solve major national problems.

In a 6-3 decision, written in sweeping terms in an obvious effort to make a major constitutional statement, the court struck down a tough remedy adopted by Congress when states balk at helping each other get rid of radioactive wastes.

The court's 5-4 ruling on the costs of protecting demonstrators against hecklers put in doubt a 1941 constitutional ruling that permitted local governments to assess marchers for the greater public expense of policing such an event.

Although the majority did not say that it was casting aside the 1941 ruling, its new decision made it clear that local officials are now forbidden by the Constitution to charge a fee when they think it is "necessary to provide security for parade participants from angry crowds opposing their message."

Justice Harry A. Blackmun, writing for the majority, declared: "Speech cannot be financially burdened, any more than it can be punished or banned, simply because it might offend a hostile mob."

The opinion went on to indicate that if local authorities use the potential negative reaction of bystanders as the basis for making the marchers pay for police protection, the officials themselves are putting an unconstitutional charge on the expression of unpopular views. The First Amendment forbids that, the majority concluded.

The ruling came in a case involving a county that has one of the nation's longest records of racial turmoil: rural Forsyth County, Ga., some 30 miles from Atlanta.

In direct response to a protest march by 20,000 civil rights demonstrators in 1987, the county commissioners adopted a new law setting a parade permit fee of up to $1,000 per day. A fee of $100 was assessed against an anti-civil rights group, the Jackson, Miss.-based "Nationalist Movement," when it planned a march to oppose a federal holiday marking the birthday of civil rights leader Martin Luther King, Jr.

Rather than pay that fee, the Nationalist Movement sued in federal court to overturn it. The Supreme Court struck down the fee yesterday, with the majority saying that the small size of the fee did not save its constitutionality.

Supporting Justice Blackmun's majority opinion in Forsyth County vs. Nationalist Movement were Justices Anthony M. Kennedy, Sandra Day O'Connor, David H. Souter, and John Paul Stevens. Chief Justice William H. Rehnquist wrote the dissent, joined by Justices Antonin Scalia, Clarence Thomas and Byron R. White.

The court's ruling nullifying a key part of Congress' 1985 effort to deal with the problem of radioactive wastes building up rapidly when only a few dump sites were available came in the case of New York vs. United States.

That law focused on what are called low-level radioactive wastes, generated in huge volume by commercial reactors, hospitals, research institutions and factories. Only three sites for disposing of those wastes were available, and the states where those sites existed -- Nevada, South Carolina and Washington -- threatened to shut down their sites when other states took no action on waste generated within their own borders.

Adopting a compromise fashioned largely by the states themselves, Congress gave the states financial incentives to work out joint plans to dispose of their radioactive wastes and gave states with dump sites the right to exclude the wastes of states that had not acted. Those parts of the law were upheld unanimously bythe court yesterday against a challenge by New York, which has made no specific plans for a disposal site.

But, in the key part of the decision, a majority struck down the toughest part of the 7-year-old law: a mandate that a state refusing to take care of its own citizens' radioactive wastes had to take ownership of those wastes and pay any damages due to the state's failure to provide for disposal.

That clause, Justice O'Connor wrote, directly coerced the states into regulating waste disposal, and that violated their sovereignty. "The Constitution has never been understood to confer upon Congress the ability to require the states to govern according to Congress' instructions," the majority said.

The O'Connor opinion was supported in full by Chief Justice Rehnquist and Justices Kennedy, Scalia, Souter and Thomas. Dissenting were Justices Blackmun, Stevens and White.

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