THE FIRST AMENDMENT: REGULATION OF PARADES, PROTESTS

Transcription

1 CITY ATTORNEYS DEPARTMENT LEAGUE OF CALIFORNIA CITIES ANNUAL CONFERENCE MAY, 2003 THE FIRST AMENDMENT: REGULATION OF PARADES, PROTESTS AND OTHER EXPRESSIVE ACTIVITIES PRESENTED BY: DEAN DERLETH CITY ATTORNEY FOR CORONA, COLTON AND LOS ALAMITOS BEST BEST & KRIEGER, LLP MAY 9, 2003 ORANGE\DRD\4268

2 THE FIRST AMENDMENT: REGULATION OF PARADES, PROTESTS AND OTHER EXPRESSIVE ACTIVITIES A. GENERAL RULES A parade permit scheme may not delegate vague or overly broad licensing discretion to a government official or governmental body. Appropriate time, place and manner restrictions are acceptable. B. THREE PRONG TEST A permit scheme controlling the time, place or manner of First Amendment activity must be: 1. Content-neutral; 2. Narrowly tailored to serve a significant governmental interest; and 3. Leave open ample alternatives for communication Failure to satisfy each prong of this test invalidates the permit scheme. PRACTICE TIP: Committees or officials with subjective review of a parade application are unconstitutional. C. PRECONDITIONS Preconditions to issuance of a parade permit must be: 1. Reasonably related to a legitimate municipal regulation of the public streets, sidewalks or other involved public property; and 2. Narrowly tailored to serve that interest. PRACTICE TIP: Cities can require that an event not unduly impede, obstruct, impair on interfere with the public's use of the street or other public property, or the operation of emergency vehicles or city services and functions, and that it not present a substantial or unwarranted safety or traffic hazard. ORANGE\DRD\4268

3 D. ADVANCE NOTICE REQUIREMENTS Advance notice requirements must be short, to allow parades to respond to contemporaneous events. Requiring a parade application to be filed more than a couple days before the planned parade - even if content neutral - will be struck down. Waiver of an advance notice requirement is still unconstitutional. 30 days may be appropriate for parades of a larger size and magnitude (e.g. Rose Parade). PRACTICE TIP: Set advance notice requirements at the minimum reasonable time it takes to deploy police, traffic control officers, transportation department staff, park rangers or other staff. In most cases, these assignments can be done in a matter of days. We understand that San Francisco requires 24 hours, New York requires 36 hours, and many other cities require only a few days. E. PROCESSING TIME Delays can constitute denial. Like advance notice requirements, processing times must not impede the ability of the applicant to address contemporaneous events. Ordinances must require action on permit applications to be taken as expeditiously as possible. Appeals should also be handled timely. F. RECOVERY OF COSTS Cities can require a permittee to prepay fees to defray the municipal expense of ensuring traffic control and related functions associated with the parade. Charges must reflect the actual amounts required to defray public costs from the permittee's activity, so long as they are not content based. Fee payment requirements must be narrowly tailored to serve a significant governmental interest. They cannot consider the content of the message or the reaction of the crowd. Cities can require reimbursement for damage to city property.

4 G. CONDITIONS Cities can require permittees to defend and indemnify the City. Insurance requirements must adhere to valid time, place and manner regulations. Cities should utilize narrower measures, such as police control measures, careful field organization and participant waivers of liability. Motor vehicle insurance might be acceptable. FOR A MORE DETAILED SUMMARY AND ANALYSIS OF THIS OUTLINE, PLEASE SEE THE ATTACHED PAPER.

5 CITY ATTORNEYS DEPARTMENT LEAGUE OF CALIFORNIA CITIES ANNUAL CONFERENCE MAY, 2003 THE FIRST AMENDMENT: REGULATION OF PARADES, PROTESTS AND OTHER EXPRESSIVE ACTIVITIES PRESENTED BY: DEAN DERLETH CITY ATTORNEY FOR CORONA, COLTON AND LOS ALAMITOS BEST BEST & KRIEGER, LLP MAY 9, 2003 * We have updated a portion of a paper prepared by Pedro B. Echeverria for this conference in October, I would also like to recognize the valuable contributions of Malathy Subramanian, an associate of Best Best & Krieger LLP in our Irvine office.

6 OUTLINE 1. INTRODUCTION 1 2. PARADES GENERALLY PUBLIC FORUM 2 4. PARADE PERMITS ORDINANCES ARE PERMISSIBLE PRIOR RESTRAINTS 2 5. PERMIT SCHEME REQUIREMENTS 3 A. NEED FOR AN ORDINANCE OR SIMILAR ENACTMENT 3 B. DISCRETION TO ISSUE OR DENY 3 C. REQUIREMENTS FOR ISSUANCE OF PERMIT MUST BE CLEARLY SPECIFIED 4 D. PERMITS MAY BE CONDITIONED 4 E. ADVANCE NOTICE REQUIREMENTS MUST BE DEFINITE AND SHORT 5 F. PROCESSING TIME AND PROCEDURES MUST BE CLEARLY SET FORTH 6 G. SECURED ZONES 6 6. PERMISSIBLE "BURDENS" ON PARADES 7 A. DEPARTMENTAL SERVICE CHARGES MAY BE RECOVERED 7 B. WAIVER OF FEES FOR THE INDIGENT IS NOT REQUIRED 8 C. INDEMNIFICATION AND LIMITED INSURANCE MAY BE REQUIRED 8 7. ENFORCEMENT OF PARADE PERMIT REQUIREMENTS 9

7 THE FIRST AMENDMENT: REGULATION OF PARADES, PROTESTS 1. INTRODUCTION "Public places" historically associated with the free exercise of expressive activities, such as streets, sidewalks, and parks, are considered, without more, to be "public forums." In such places, the government's ability to permissibly restrict expressive conduct is very limited. (United States v. Grace (1983) 461 U.S. 171, 177.) This paper discusses the limitations on the ability of municipalities to regulate parades, protests and other expressive activities. It is not the purpose of this paper to provide an exhaustive review of case authority in this area. However, it does endeavor to present an overview of current case authority as it applies to municipal regulation of these areas of expressive activity and to provide suggestions to assist in the drafting of permit schemes for such conduct. 2. PARADES GENERALLY The term "parades" as used in this paper includes a wide range of expressive activity on publicly owned or controlled property, such as processions, demonstrations, marches, rallies, protests, pageants, reviews, ceremonies or exhibitions which are conducted in, on, upon, or along any portion of any public street, sidewalk or other property owned or controlled by a city or other government entity, so as to impede, obstruct, impair or interfere with the public's free use of such street, sidewalk or other public property. Marches, protests demonstrations, picketing and other protest activities clearly constitute protected speech (Shuttleworth v. Birmingham (1969) 394 U.S. 147, 152; Collins v. Jordan (9th Cir. 1996) 110 F.3d 1363.) An additional element, of course, is that the parade involve the expression or communication of speech or ideas. Two elements of the definition of parades are of particular significance. The first is that by their very purpose and nature, parades involve the use of public property, streets, parks and the like, which have been recognized as public forums. Parade cases, therefore, rarely involve any issue as to whether or not the place involved is a public forum. Although such public forum issues frequently arise in other free speech cases, that body of law seldom has any application in parade cases. The second element of particular significance is that parades are conducted so as to impede,

8 obstruct, impair or interfere with the public's free use of the street, sidewalks or other public property. The various cases addressing parade regulations indicate that it is that factor alone, the regulation of competing uses of public forums, which enables cities and other government entities to regulate parades. A similar use of the streets or sidewalks, for example, in which all traffic and other laws are observed and which does not impact the public's use of the street or sidewalks in any significant manner eliminates the basis for any regulation which the courts have found to be permissible. (Cox v. New Hampshire (1941) 312 U.S. 569, 575; Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach (1993) 14 Cal.App.4th 312, 336.) 3. PUBLIC FORUM Public streets and sidewalks are clearly public forums. Regulation of speech in a traditional public forum is subject to the highest scrutiny. (Foti v. City of Menlo Park (9th Cir. 1998) 146 F.3d 629, 635.) In such places, which occupy a special position in terms of First Amendment protection, the City bears an exceptionally heavy burden of justification to restrict expressive activities in these fora. (United States v. Grace, supra, 461 U.S. 171; NAACP v. City of Richmond (9th Cir. 1984) 743 F.2d 1346, 1355.) 4. PARADE PERMIT ORDINANCES ARE PERMISSIBLE PRIOR RESTRAINTS Parades, although not consisting entirely of "pure speech," involve the exercise of free speech and the right of assembly guaranteed by both the U.S. and California Constitutions. (Shuttlesworth, supra, 394 U.S. at p. 152; Long Beach, supra, 14 Cal.App.4th at p. 324.) Parade permit ordinances impose a prior restraint on the exercise of those rights by requiring that a permit be obtained before a parade can be held. (Forsyth County v. Nationalist Movement (1992) 505 U.S. 123; Long Beach, supra, 14 Cal.App.4th at p. 324.) There is a heavy presumption against the validity of a prior restraint. Nevertheless, both federal and California courts have recognized that government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to hold a parade. (Forsyth County, supra, 505 U.S. at p. 130; Long Beach, supra, 14 Cal.App.4th at p. 325.) However, because parades involve the exercise of free speech, a parade permit scheme must meet certain constitutional requirements. It may not delegate vague or overly broad licensing discretion to a government official. Further, any permit scheme controlling the time, place or manner of First Amendment activity must be: (1) content-neutral; (2) narrowly tailored to serve a significant governmental interest, and (3) leave open ample alternatives for communication. (Forsyth County, supra, 505 U.S. at p. 130; Long Beach, supra, 14 Cal.App.4th at p. 325.) The failure to satisfy any single prong of this test invalidates the requirement. However, a content based regulation may still pass constitutional muster if it is the least restrictive means to further a compelling interest. Thus, any permit scheme regulating protected speech and advocacy activities in a public forum which is based on the content of speech requires strict scrutiny. 2

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10 5. PERMIT SCHEME REQUIREMENTS A. NEED FOR AN ORDINANCE OR SIMILAR ENACTMENT Due process requires that statutes clearly set forth what conduct is required or prohibited. That is particularly true for restrictions on speech. Moreover, the First Amendment demands that regulation of protected activity incorporate narrowly drawn, reasonable and definite standards. (Long Beach, supra, 14 Cal.App.4th at p. 329.) Efforts at regulating parades without the benefit of an ordinance or similar enactment which complies with these requirements will be struck down as allowing for vague or overly broad licensing discretion which could easily be exercised to take into account the content of the message. (Niemotko v. Maryland (1951) 340 U.S. 268; Dillon v. Municipal Court (1971) 4 Cal.3d 860.) Thus, the enactment of an ordinance which meets all of the constitutional requirements is a prerequisite to being able to regulate parades by means of a permit scheme. B. DISCRETION TO ISSUE OR DENY Perhaps the most fundamental and frequently invoked of the constitutional requirements for parade permit laws is that they must not confer overly vague, overly broad or unlimited discretion to officials charged with granting or denying permits. (Long Beach, supra, 14 Cal.App.4th at p. 325; Forsyth County, supra, 505 U.S. at p. 130; Shuttlesworth, supra, 394 U.S. at p. 153; Dillon, supra, 4 Cal.3d at pp ) The concern is expressed by the courts is that without precise governing standards an administrator may freely pick and choose among the constitutionally protected events to be allowed on the basis of impermissible criteria such as the content of the proposed speech. The Supreme Court in Forsyth County reiterated that the First Amendment prohibits the vesting of such "unbridled discretion" in a government official. (Supra, 505 U.S. at p. 133.) In Long Beach, the court considered a provision worded as follows: "The city manager or his designee may issue a permit under this chapter if it is determined that the following criteria have been met;...." The Court rejected arguments that the city manager was effectively under a ministerial duty to issue a permit if the criteria were met. The plain meaning of the provision's permissive language was found to vest the city manager with open-ended discretion whether or not to issue permits. (Long Beach, supra, 14 Cal.App.4th at p. 326.) The court in Long Beach relied upon Dillon, wherein the California Supreme Court struck down a similar provision on the same grounds. In order to avoid vesting officials with such impermissible discretion, the permit scheme should provide that so long as the criteria set forth in the ordinance are met, the official "shall" or "must" issue the permit making it a ministerial act. Parade permit schemes should also require that any denial of a permit be accompanied by a statement setting forth with specificity the reasons for the denial. 4

11 C. REQUIREMENTS FOR ISSUANCE OF PERMIT MUST BE CLEARLY SPECIFIED Permit schemes may require that certain criteria be met as a precondition to issuance of a parade permit. Such criteria, however, must be reasonably related to legitimate municipal regulation of the public streets and sidewalks or of the other public property involved and narrowly tailored to serve that interest. (Shuttlesworth, supra, 394 U.S. at p. 153; Long Beach, supra, 14 Cal.App.4th at p. 330.) The U.S. Supreme Court in Shuttlesworth struck down an ordinance which empowered the licensing body to deny a permit if in its judgment "the public welfare, peace, safety, health, decency, good order, morals or convenience require that it be refused." Not surprisingly, the Court found that those were impermissibly broad criteria entirely unrelated to legitimate regulation of the public streets and sidewalks. In contrast, the California Court of Appeal, in Long Beach, considered and approved three criteria directly applicable to parades in that permit scheme. The criteria required that the event not "unduly" impede, obstruct, impair or interfere with the public's use of the street or other public property, or the operation of emergency vehicles or city services and functions, and that it not present a "substantial or unwarranted" safety or traffic hazard. The court found that the standards were not void for uncertainty and that the measures of obstruction which they provided were not beyond common or objective understanding because of the use of words such as "unduly" and "substantial or unwarranted." (Long Beach, supra, 14 Cal.App.4th at p. 330.) In drafting or revising a parade permit scheme, the criteria which must be met as a precondition to issuance of a permit must be clearly specified. The exercise of some degree of judgment by the permit issuing official with respect to the degree of obstruction of the public streets or sidewalks or other public property is permissible if the measures permitted are within common or objective understanding. Of course, additional criteria may be specified for issuance of the permit which are ministerial in nature, equally applied to all applicants, and are narrowly drawn and content neutral. These include a requirement of a complete application giving the specifics necessary for effective legitimate regulation of the public streets, sidewalks or other public property (e.g. identity of the sponsor, estimated number of participants, types and numbers of vehicles or animals, date, time and route, and similar information.) They should also include a determination that there have been no prior permits granted for other events at the same date, time and place. D. PERMITS MAY BE CONDITIONED Since permit schemes may impose criteria which are reasonably related to legitimate regulation of the public streets and sidewalks or of other public property involved, it follows that if such criteria are not met a permit may be denied. The better practice, however, would be to grant the permit with conditions, if such conditions can cure the problem presented, or to deny the permit but propose a reasonable alternative to the request. For example, requiring a shift in the time or a partial change in the route because of significant traffic problems may be acceptable. Any such conditions or alternatives must pass the same constitutional muster that the criteria themselves must pass, and the granting of the authority to impose such conditions must similarly limit them. Although the courts seem to treat the authority to condition permits as inherent, it is advisable to specify the types of conditions which may be imposed, in the parade permit scheme. 5

12 E. ADVANCE NOTICE REQUIREMENTS MUST BE DEFINITE AND SHORT Even if advance notice requirements, i.e. the requirement that a parade application be filed a certain number of days before the planned date for the parade, are content-neutral, they have been found to inhibit and reduce the quantity of speech. When such advance notice requirements are excessively long, they are struck down as not being narrowly tailored to serve a significant governmental interest. The Court in Long Beach struck down a requirement that parade permit applications be filed at least 30 working days prior to the permit's effective date, although it left open the possibility that for some parades of a larger size and magnitude (such as the Rose Parade) 30 days might be appropriate. (Long Beach, supra, 14 Cal.App.4th at p. 331.) A 20 day prior notice requirement was struck down in NAACP. (NAACP, supra, 743 F.2d at p ) Because of the city's 20-day permit application requirement and the unavailability of the officials who could waive it, the NAACP faced prohibition of a march, on 5 days' notice, to protest a contemporaneous government decision not to investigate the death of a prisoner. The Court observed that many metropolitan parade ordinances required substantially less notice than Richmond's. San Francisco required only 24 hours, New York only 36 hours, and many other cities required only a few days. (NAACP, supra, 743 F.2d pp. at ) Although no clear standard has been announced by the courts, it was reasonably apparent that any advance notice requirement must be short enough to allow parades in response to contemporaneous events, such as recent or proposed actions of governmental bodies or officers. Provisions allowing for the waiver of a notice requirement for First Amendment activity have not fared well in the courts. The permit schemes in both Long Beach and NAACP contained waiver provisions which were found to be unconstitutionally vague and overly broad. Whether or not to apply a waiver must be determined under clear standards; its application cannot be left to the unguided discretion of an official. (Long Beach, supra, 14 Cal.App.4th at pp ) The court in Mardi Gras of San Luis Obispo (C.D. Ca. 2002) 189 F. Supp. 1018, 1027 held that permitting waivers for First Amendment activity is an impermissible content based provision. In reviewing or drafting a parade permit ordinance, advance notice requirements must be made as short as reasonably practicable. The time for filing a parade application must reasonably allow for groups to respond to contemporaneous events. In many instances, a delay in the issuance of a permit can significantly reduce the impact and effectiveness of the message to be conveyed by the parade. Consideration should be given to setting the advance notice requirement at the minimum reasonable time it takes to deploy police, traffic control officers, transportation department staff, park rangers or other staff. In most instances such assignments can be made in a matter of one or two days. If the permit scheme provides for a waiver of the advance notice requirement, precise and definite standards must be set forth for the exercise of the waiver. An official whose availability is certain should be designated to determine whether or not a waiver is required. Provisions for a waiver are advisable but may not be necessary if the advance notice required is already as short as practicable. 6

13 F. PROCESSING TIME AND PROCEDURES MUST BE CLEARLY SET FORTH In the First Amendment area, delay can pragmatically constitute denial. Failure to clearly designate the officials who are authorized to act on permit applications and to impose time limits for the approval or disapproval of such applications allows overly broad discretion to act or not act on the applications of particular groups. (Dillon, supra, 4 Cal.3d at p. 870.) The same types of considerations applicable to advance notice times apply to processing time. It must not impede the ability of the applicant to address contemporaneous events. If a right of appeal from a denial of a permit is granted in the permit scheme, similar provisions must be included designating the reviewing official and the time for rendering a decision on the appeal. (Long Beach, supra, 14 Cal.App.4th at pp ) A parade permit ordinance must require that all actions on permit applications must be taken as expeditiously as possible. Consideration should be given to not providing that appeals be taken to bodies whose meetings on those matters may be delayed by quorum requirements. Sufficient time must be allowed for applicants to challenge the denial of a permit in court. G. SECURED ZONES In Services Employee International Union, Local 660 v. City of Los Angeles (C.D. Ca. 2000) 114 F.Supp.2d 966, the Court enjoined City of Los Angeles enforcement of secured zones that were created for the 2000 Democratic National Convention. For a period of time prior to and after the convention, the Los Angeles Police Department designated a secured zone around the Staples Center, which consisted of an area of more than 8 million square feet encompassing numerous streets, sidewalks and buildings. The City also set up a small protest or demonstration site for use during the convention approximately 260 yards from the entrance to the convention. The Court found that the secured zone was unconstitutional and not narrowly tailored to serve a significant governmental interest, in that the secured zone covered more area than necessary to allow delegates to enter the convention safely, and that the time restrictions were absolute blocking expressive activities twenty-four hours a day. (Id. at p. 971.) The Court also determined that the manner of speech was not addressed because the intent is to preclude all speech activities by non-invitees within the secured zone, and there was no attempt to balance the speech interest of the protestors against the need for security at the convention. (Id. at p. 972.) The Court held that although the safety concerns were real, "First Amendment jurisprudence teaches that banning speech is an unacceptable means of planning for potential misconduct." (City of Los Angeles, supra, 114 F.Supp.2d at p. 972.) The Court also found that the official demonstration area did not provide an adequate alternative means of communication to accommodate First Amendment interests. (Ibid.) The intended audience in this case was the convention delegates and the blanket preclusion of persons to the area where the delegates enter and leave the facility precluded individuals from effectively communicating with the delegates and did not withstand constitutional scrutiny. (Id. at pp ) The Court did indicate however that all unauthorized vehicles could be banned from the secured zone, given the peculiar security problems 7

14 posed by vehicles. (Id. at p. 972.) 6. PERMISSIBLE "BURDENS" ON PARADES A. DEPARTMENTAL SERVICE CHARGES MAY BE RECOVERED A city is free under the First Amendment to require that a permittee prepay fees to defray the municipal expense of ensuring traffic control and related functions occasioned by the parade. (Cox; Forsyth County; Long Beach, supra, 14 Cal.App.4th at pp ) Some uncertainty has developed over the years as to whether anything more than a nominal fee could be imposed on parades. Indeed, many plaintiffs have argued that not only are fees limited to a nominal amount but that a waiver had to be provided for "truly indigent" applicants. Such charges may be imposed so long as they reflect the actual amounts required to defray specific public costs engendered by the permittee's own activity and as long as they are not based on the content of the message. If fees are based on the content of the speech or on the possible hostile reaction of the listeners, not even a cap of $1,000 or some more nominal amount will save the ordinance for First Amendment purposes. (Forsyth County, supra, 505 U.S. at p. 136.) Fee payment requirements must be narrowly tailored to serve a significant government interest. The Court in Long Beach ruled that providing for traffic control to rectify a parade's disruption of normal street use is a significant governmental interest, and that charges which correspond to the actual cost of providing the services are most narrowly tailored. (Long Beach, supra, 14 Cal.App.4th at p. 336.) The charges approved in Long Beach for the 1989 parade amounted to $12, However, the departmental service charge in the Long Beach City ordinance was permanently enjoined by the California Court of Appeal (apparently without opposition from the City of Long Beach) on September 10, (See Civil Docket for the Central District of California, People for Community Empowerment v. City of Long Beach, No. CV , September 10, 2001.) In Cox, supra, the U.S. Supreme Court approved a flexible fee which would vary according to the expense of the services required by the parade. In addition, a permit application fee limited to the actual administrative costs incurred in processing the application may be imposed. (Stonewall Union v. City of Columbus (6th Cir. 1991) 391 F.2d 1130, 1133.) And so may a requirement that a permittee reimburse the city for city property damaged by reason of the permittee's use or activities. (Long Beach, supra, 14 Cal.App.4th at p. 337.) Caution must be exercised in establishing the departmental services fees to be charged. The content of the message and the listeners' possible hostile reaction to it cannot be taken into account in establishing the fee to be charged for a parade permit. (Forsyth County, supra, 505 U.S. at p. 134.) Permissible factors that can be considered include the size of the parade and its impacts on normal traffic. It is unclear whether the size of the crowd in attendance can be considered. (Long Beach, supra, 14 Cal.App.4th at p. 335.) The Court in Stonewall Union v. City of Columbus approved of consideration of the estimated number of viewers and of the nature, composition, format and configuration of the parade. However, the Court made it clear that it was impermissible to take into 8

15 account the content of the message and the possible hostile reaction of the audience. (Stonewall, supra, 391 F.2d at pp ) B. WAIVER OF FEES FOR THE INDIGENT IS NOT REQUIRED The courts in Long Beach and in Stonewall both rejected the argument that failure to provide a waiver from parade permit fees for indigent speakers or groups violates the First Amendment. The argument for the waiver is founded on cases in which failure to satisfy the fee prerequisite precluded the applicants' involvement in the constitutionally protected activity altogether. In contrast, in parade cases, alternative forums are available without payment of fees. Sidewalks, parks and other public property are available without the payment of any fees so long as the traffic laws and other applicable laws and regulations are observed. (Long Beach, supra, 14 Cal.App.4th at pp ; Stonewall, supra, 391 F.2d at p ) In reviewing or drafting a parade permit ordinance, cities may require the payment of departmental service charges, including reimbursement for city property damaged or destroyed by reason of a permittee's use or activities, and of an application fee so long as these are based on the actual costs incurred in processing the application and in providing the city services engendered by the parade. Such charges, however, may not take into account the content of the speech involved or the possible hostility of the listeners. C. INDEMNIFICATION AND LIMITED INSURANCE MAY BE REQUIRED There appears to be no controversy over a requirement that a permittee defend and indemnify a city and its officers and employees from all claims arising from the permittee's alleged acts or omissions. Such a provision was not challenged in Long Beach, and although it was mentioned in the opinion, the Court was not troubled by it. An indemnification requirement is content-neutral and narrowly tailored to serve a significant governmental interest, to protect the public finances. Insurance requirements, however, pose more serious issues. The parade permit scheme in Long Beach contained a requirement that the permittee procure and maintain throughout the permit period a liability insurance policy which includes the city and its boards, officers, agents and employees as named insureds or additional named insureds. The city manager was given the discretion to determine the necessary and adequate coverages under the circumstances and to waive the requirement for events of not more than one day which did not present a substantial or significant public liability or property damage exposure for the city. The court found the insurance waiver provision to be suspect and ruled that the power granted to the city manager to fix the insurance requirements is devoid of standards to restrain the exercise of discretion and, therefore, violated the First Amendment. (Long Beach, supra, 14 Cal.App.4th at p. 339.) The Court went on to find several grounds for striking down the insurance requirements themselves. It found that both the city manager and the underwriters must take the content of the message and the possible hostility of the listeners into account in setting the types and levels of 9

16 coverages as well as the premiums which the permittee is required to pay. In addition, it found the insurance requirement overly broad in that the financial protection which it affords the city is extremely limited, basically providing only a contingent liability for defense. Moreover, it found that there were narrower measures which could be utilized by the city to provide the necessary protection. For example, police control measures, careful field organization, and participant waivers of liability. Even a narrower type of insurance coverage, such as motor vehicle insurance, might be acceptable. All of these factors rendered the insurance requirement substantially broader than necessary to achieve the government's interest. (Long Beach, supra, 14 Cal.App.4th at pp ) Nevertheless, the Court made it clear that it was not categorically condemning insurance requirements for parades. In order to pass constitutional muster, however, such requirements must adhere to the requisites of valid time, place and manner regulations. (Id. at pp ) A parade permit scheme must utilize narrower measures to limit city liability before resorting to any insurance requirement. The insurance requirement must not allow the exercise of discretion which will result in content or audience hostility being taken into account to set the types and levels of coverages. The types and levels of coverages which can be specified under the permit scheme must be the narrowest necessary to protect against identified risks, such as motor vehicle liability. Any waiver of the insurance requirements must set forth definite and specific criteria for its exercise. 7. ENFORCEMENT OF PARADE PERMIT REQUIREMENTS There are limited enforcement mechanisms available with respect to unauthorized parades. An ordinance can make failure to comply with its requirements a misdemeanor. Any participant in an unauthorized parade who breaks traffic and other laws can be arrested or cited for such violations. If violations of the peace occur, the parade can be declared an unlawful assembly and the participants can be ordered to disperse under pain of arrest. The remedies are indeed limited, and with good reason. The courts consider as one of the most hallowed rights the right to use public ways and property for the expression, communication and exchange of ideas. CONCLUSION Cities should pay close attention that their regulation of time, place and manner of First Amendment protected speech is content neutral, does not vest government officials with vague or overbroad discretion, insures expeditious action on permit applications and appeals, is narrowly tailored to serve a significant government interest, and leaves open ample alternatives for communication. 10