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Fry v. Board of Regents of the University of Wisconsin System

October 01, 2002


Appeal from the United States District Court for the Western District of Wisconsin. No. 96 C 292--John C. Shabaz, Judge.

Before Bauer, Harlington Wood, Jr., and Manion, Circuit Judges.

The opinion of the court was delivered by: Manion, Circuit Judge.


Six years ago, several students at the University of Wisconsin-Madison ("the University") sued the University challenging its mandatory student activity fee system on First Amendment grounds. Following appeals to this court and to the United States Supreme Court, on remand to the district court, the sole issue remaining was whether the mandatory fee system unconstitutionally granted the student government unbridled discretion for deciding which student organizations to fund. According to the students, such unbridled discretion existed and thus the system failed to guarantee that the funds would be distributed in a viewpoint-neutral manner as required by the First Amendment. The district court agreed with the students and held that the University of Wisconsin-Madison's mandatory student activity fee system violated the First Amendment. Fry v. Board of Regents of the Univ. of Wis. Sys., 132 F.Supp.2d 744 (W.D. Wis. 2000). We reverse the district court's decision that the mandatory fee system unconstitutionally grants the student government unfettered discretion, except as to the funding of travel grants for which the student government has yet to adopt specific funding criteria.


This case dates back to 1996, and this is the fourth time it is before us. Southworth v. Grebe, No. 97-1001, 1997 WL 411225 (7th Cir. July 11, 1997) (unpublished order); Southworth v. Grebe, 151 F.3d 717 (7th Cir. 1998), rehearing denied, Southworth v. Grebe, 157 F.3d 1124 (7th Cir.), rev'd Board of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217 (2000); Southworth v. Board of Regents of University of Wisc. Sys., Nos. 97-3510, 97-3548, 2000 WL 831585 (7th Cir. June 23, 2000) (unpublished order). To the extent necessary, relevant facts are repeated. For additional details, the interested reader is referred to our prior opinions.

In April 1996, three University of Wisconsin-Madison students sued the University challenging a portion of the University's mandatory student activity fee system. The students claimed that forcing them to fund other students' political and ideological speech violated their First Amendment rights. While the mandatory student fees funded both "non-allocable" items (e.g., intramural sports, debt service, upkeep and operations of the student union facilities) and "allocable" programs, the plaintiffs challenged only the allocable portion of the mandatory fee system. These allocable fees were distributed to various Registered Student Organizations ("RSO") which used the money to engage in a variety of extracurricular activities, ranging from displaying posters and circulating newsletters, to hosting campus debates and guest speakers, to political lobbying.

At the time the plaintiffs filed suit, an RSO could obtain a portion of the allocable fees in one of three ways. The organization could seek funding from the Student Government Activity Fund ("SGAF"), which was administered by the Associated Students of Madison ("ASM") Finance Committee, or an RSO could apply for funding from the General Student Services Fund ("GSSF"), which was administered through the Student Services Finance Committee ("SSFC"). The third method of funding was through a student referendum. *fn1 For instance, during the 1995-1996 academic year, the Wisconsin Public Interest Research Group ("WISPIRG") obtained $45,000 in funding as the result of a student referendum. WISPIRG in turn used this money to support various political and ideological activities and speech, including contributing $2,500 directly to its parent organization, the U.S. Public Interest Research Group ("PIRG") for use in lobbying Congress.

Like WISPIRG, many RSOs used a portion of the student activity fees to engage in political and ideological activities. The plaintiffs, believing that this system unconstitutionally compelled them to fund speech they deemed objectionable, sued the University. The district court granted the plaintiffs summary judgment, concluding that the University's mandatory student activity fee program violated the First Amendment. The University appealed the district court's decision to this court. Applying Abood and Keller *fn2 (which held that objecting teachers and lawyers could not be forced to subsidize the speech of a union or a bar association unless that speech was germane to the organization's purpose), this court affirmed. Southworth v. Grebe, 151 F.3d 717 (7th Cir. 1998).

The Supreme Court granted certiorari and reversed. Board of Regents of Univ. of Wis. Sys. v. Southworth, 529 U.S. 217 (2000). In following the principles set out in Abood and Keller, the Supreme Court acknowledged that students attending a "university cannot be required to pay subsidies for the speech of other students without some First Amendment protection." Id. at 231. The Court nevertheless held that the means of implementing First Amendment protections adopted in Abood and Keller were "neither applicable nor workable in the context of extracurricular student speech at a university." Id. at 230. However, the Supreme Court held that "[t]he University must provide some protection to its students' First Amendment interests. . . . The proper measure, and the principal standard of protection for objecting students . . . is the requirement of viewpoint neutrality in the allocation of funding support." Id. at 233.

Because in its earlier appeal the plaintiffs stipulated that the ASM Finance Committee and the SSFC allocated the student activity fees in a viewpoint-neutral fashion, the question of viewpoint neutrality was not before the Supreme Court. But, as the Supreme Court noted, the plaintiffs' stipulation did not extend to the referendum method of funding student activities, under which "by majority vote of the student body a given RSO may be funded or defunded." Id. at 235. This is problematic, the Court explained, because "[t]he whole theory of viewpoint neutrality is that minority views are treated with the same respect as are majority views." Id. While noting that the record was sparse on the referendum feature, the Court concluded that "[t]he student referendum aspect of the program for funding speech and expressive activities, however, appears to be inconsistent with the viewpoint-neutrality requirement." Id. at 230. Accordingly, the Court concluded that "[a] remand is necessary and appropriate to resolve this point; and the case in all events must be reexamined in light of the principles we have discussed." Id. at 236.

Following remand, the plaintiffs moved for leave to void their stipulation that the ASM Finance Committee and the SSFC made funding decisions in a viewpoint-neutral fashion. Southworth, 2001 WL 831585 at *3. The plaintiffs explained that they had made this stipulation because they believed that under Abood and Keller, the University could not force them to fund others' speech, whether or not the funds were distributed in a viewpoint-neutral manner. Id. at *3. The plaintiffs also requested leave to amend their complaint to allege that the mandatory fee system was not viewpoint-neutral because it granted the student government unbridled discretion for deciding which groups to fund. Id. We concluded that those issues were best left to the discretion of the district court. Id. at *4. Accordingly, we remanded to the district court, directing it to consider the plaintiffs' motion for leave to amend their complaint and to void their stipulation that the funds were distributed in a viewpoint-neutral manner. Id. We also remanded to the district court for further consideration of the constitutionality of the referendum. Id. at *3.

Back before the district court, the University moved to dismiss the constitutional challenge to the referendum method of funding student groups. The University maintained that the plaintiffs' challenge to the referendum was moot because, following the Supreme Court's decision in Southworth, the University had amended its student activity fee policy, eliminating the referendum method of funding student organizations. The parties later stipulated to the dismissal of the students' claim challenging the constitutionality of the referendum. The district court then considered the plaintiffs' motion to void their stipulation of viewpoint neutrality and for leave to amend their complaint. The plaintiffs also sought leave to add Benjamin Thompson as a plaintiff. The district court granted all three motions, adding the additional student-plaintiff, voiding the stipulation of viewpoint neutrality, and allowing the plaintiffs to amend their complaint. A bench trial then proceeded on the plaintiffs' amended complaint.

Following trial, the district court issued an oral ruling, holding that the University's mandatory fee system violated the plaintiffs' First Amendment rights by granting the student government too much discretion for determining which student organizations to fund. Four days later, on December 11, 2000, the district court issued a written Supplemental Decision and Order further explaining its oral ruling. Fry, 132 F.Supp.2d 744. Specifically, the district court explained that "[s]ome degree of discretion may be both necessary and constitutionally permissible in the segregated fee program." Id. at 749. But the court went on to note that the student government's "discretion not limited by express objective standards is insufficient to adequately safeguard the principle of view-point neutrality." Id. However, the district court deferred entry of its judgment for two months to allow the University time to modify the fee system. Id. at 750.

The University and student government then adopted changes to their fee distribution policies; these changes attempted to limit the student government's discretion and assure viewpoint neutrality. The amended policies were presented to the district court in mid-February. After reviewing the changes, the district court ruled that despite the modifications "[t]he level of the student government's discretion is unchanged." The district court then entered judgment in the plaintiffs' favor and enjoined the University from "compelling plaintiffs to pay those portion of the mandatory fees which funded expressive activities of RSOs to which the students objected." The University appeals.


On appeal, the University first argues that the district court abused its discretion in allowing the plaintiffs to void their stipulation of viewpoint neutrality. The University also contends that the plaintiffs lack standing to challenge the viewpoint neutrality of the fee system, and that in any event a facial challenge is inappropriate. Next, the University maintains that the constitutional prohibition against granting governmental authorities unbridled discretion does not apply in the context of a student activity fee system. Alternatively, the University argues that even if the unbridled discretion standard applies, the district court erred in concluding that the University's fee system granted the student government such discretion.

A. Stipulation of Viewpoint Neutrality

Following remand from the Supreme Court, we remanded this case to the district court to consider the plaintiffs' request to void their stipulation that "[t]he process for reviewing and approving allocations for funding is administered in a viewpoint-neutral fashion." Southworth, 2001 WL 831585 at *4. "A stipulation is binding unless relief from the stipulation is necessary to prevent a 'manifest injustice' or the stipulation was entered into through inadvertence or based on an erroneous view of the facts or law." Graefenhain v. Pabst Brewing Co., 870 F.2d 1198, 1206 (7th Cir. 1989). "As with other matters of trial management, the district court has 'broad discretion' to decide whether to hold a party to its stipulation; the district court's decision will be overturned on appeal only where the court has clearly and unmistakably abused its discretion." Id. at 1206.

In this case, the district court concluded that voiding the stipulation was appropriate because "[p]rior to the Supreme Court's decision in Southworth, lower courts analyzed this compelled speech question using the 'germaneness' analysis in Abood and Keller." Thus, as the district court recognized, the plaintiffs' stipulation took on "a new significance after the Supreme Court's decision in Southworth. . . ." The district court further noted that "[a]t the time plaintiffs entered into the stipulation they could not have foreseen that they were stipulating to a conclusion that would eventually be dispositive of the case." The district court then reasoned that "[u]nder the circumstances, it is apparent that the stipulation was entered into through inadvertence and a mistake of law. Were the Court to conclude otherwise it could be envisioned that parties would refrain from entering into stipulations for fear of inadvertently stipulating away their case on appeal."

This court's earlier decision also followed the compelled-speech cases of Abood and Keller, Southworth, 151 F.3d at 732, rather than the viewpoint-neutrality analysis subsequently adopted by the Supreme Court in Southworth, 529 U.S. at 233. In voiding the plaintiffs' stipulation, the district court properly considered this development. Moreover, in the final analysis the University is not harmed by the district court's decision to void the plaintiffs' stipulation because that stipulation, at most, bound only the named plaintiffs. *fn3 Had the district court refused to void the plaintiffs' stipulation, other University of Wisconsin-Madison students (such as Benjamin Thompson, who was added as a plaintiff only upon remand) could have immediately filed a new lawsuit against the University. That would likely result in repetitive filings, motions and discovery. Under these circumstances and given the district court's fully reasoned explanation, we conclude that the district court did not abuse its discretion in allowing the plaintiffs to void their stipulation.

The limited case law in this circuit analyzing a district court's decision to void a stipulation supports this conclusion. In Cates v. Morgan Portable Building Corp., 780 F.2d 683 (7th Cir. 1985), we held that the district court was acting within its broad discretion in voiding the parties' stipulation that on remand the case would be tried based on the record of a previous trial. Id. at 690-91. In that case,

"[i]t turned out that the record of the previous trial did not fully illuminate the issue of mitigation of damages, which became a focus of concern in the case only after [the appellate court] reversed the second judgment." Id. at 690. Similarly, in this case, the issue of viewpoint neutrality did not become a focus of concern until the Supreme Court rejected this court's reliance on the compelled-speech cases of Abood and Keller.

This court also considered the propriety of voiding a stipulation in Graefenhain, 870 F.2d 1198 (7th Cir. 1989). In that case, the plaintiff stipulated that the court, rather than the jury, could decide the issue of damages in his age discrimination case. Id. at 1205. However, after it became apparent that the damages trial would involve a much more complex factual issue concerning whether or not the plaintiff would have been terminated in a RIF, the plaintiff moved to void his stipulation and to try the question of damages to the jury. Id. at 1206. The district court refused to void the stipulation. Id.

Graefenhain is factually distinguishable from this case because in that case there was "no indication that [the plaintiff] misunderstood the law of damages for wrongful discharge. . . ." Id. Conversely, here, the plaintiffs (as well as the district court and this court), applied a line of case law that the Supreme Court rejected. Also, in Graefenhain, while we affirmed the district court's refusal to void the stipulation, we also noted that the changed circumstances "may have empowered the district court to exercise its discretion to void the prior agreement. . . ." Id. But we concluded that "the court's failure to do so was not an abuse of discretion." Id. at 1206. Changed circumstances which alter the focus of a case or the importance of an issue may justify the voiding of a stipulation. Had the district court in Graefenhain voided the stipulation, that too would likely not have been an abuse of discretion. See United States v. Williams, 81 F.3d 1434, 1437 (7th Cir. 1996) ("It is possible for two judges, confronted with the identical record, to come to opposite conclusions and for the appellate court to affirm both. That possibility is implicit in the concept of a discretionary judgment."). As explained above, see supra at 9, the district court acted within its broad discretion. Therefore, we affirm the district court's decision voiding the plaintiffs' stipulation of viewpoint neutrality.

B. Standing

The University next argues that the plaintiffs lack standing to challenge the mandatory student activity fee system. "[P]arties seeking to invoke the jurisdiction of federal courts must show that they have standing to sue within the meaning of Article III." Krislov v. Rednour, 226 F.3d 851, 857 (7th Cir. 2000). Essentially, this requires that the plaintiff "have suffered an 'injury in fact,' defined as 'an invasion of a legally protected interest which is . . . concrete and particularized and 'actual or imminent'. . . .' " Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (internal citations omitted). There must also be a causal connection between the injury and the conduct, and the injury must be redressable by a favorable decision. Id. at 560-61.

In this case, the plaintiffs' alleged concrete and particularized interest is an assurance that their mandatory student activity fees are distributed in a viewpoint-neutral manner. The Supreme Court's decision in Southworth makes clear that this is a legally protected interest. As the Court explained, "[i]t infringes on the speech and beliefs of the individual to be required, by this mandatory student activity fee program, to pay subsidies for the objectionable speech of others without any recognition of the State's corresponding duty to him or her." Southworth, 529 U.S. at 231. Accordingly, as the Court held, "the objecting students may insist upon certain safeguards with respect to the expressive activities which they are required to support," id. at 229, and "[t]he University must provide some protection to its students' First Amendment interests. . . ." Id. at 233. As the Court explained, the proper measure of that protection "is the requirement of viewpoint neutrality in the allocation of funding support." Id. This language makes clear that the students have a First Amendment interest in assuring that the University administers the mandatory fee system in manner ensuring viewpoint neutrality. In fact, the University admits as much, acknowledging in its brief on appeal that the plaintiffs have an "independent First Amendment right not to be compelled to support non-governmental speech with which they disagree, where the system for distributing funding discriminates against other student groups . . . on the basis of viewpoint." This independent First Amendment right satisfies the injury-in-fact requirement of standing.

Nonetheless, the University argues that the plaintiffs lack standing because the plaintiffs do not claim "that the University has engaged in specific acts of viewpoint discrimination." The plaintiffs respond that since they are not presenting an as-applied challenge, but rather a facial challenge to the unbridled discretion the University grants the student government for deciding which RSOs to fund, they need not allege any actual incidents of viewpoint discrimination to have standing. In support of their argument, the plaintiffs cite several licensing and permit cases, Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S.Ct. 775 (2002); Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992); City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988), wherein the Supreme Court held that a licensing scheme vesting the decisionmaker with unbridled discretion violates the First Amendment and may be challenged facially, without the necessity of applying for and being denied a license. The University counters that the constitutional principles established in licensing and permit cases are inapplicable to a mandatory fee system and therefore the plaintiffs not only lack standing, but also cannot present a facial challenge to the system, and that in any event the unbridled discretion standard on which the plaintiffs rely does not apply outside the sphere of licensing and permit schemes. *fn4

At this juncture, this case has seemingly jumped from one issue--that of viewpoint neutrality--to another--the question of unbridled discretion. Before proceeding, it is necessary to put the parties' contentions into context. The plaintiffs do not contend that the University actually engaged in incidents of viewpoint discrimination, but instead claim that the mandatory fee system fails to satisfy the constitutional mandate of viewpoint neutrality because it grants the student government unbridled discretion. From the plaintiffs' perspective, the prohibition on unbridled discretion is part of the viewpoint-neutrality requirement. Thus, under the plaintiffs' theory, a granting of unbridled discretion by the University to the student government constitutes a violation of the requirement of viewpoint neutrality. Because the plaintiffs do not claim actual incidents of viewpoint discrimination, but rather a violation of the unbridled discretion component of the viewpoint-neutrality requirement, on appeal the plaintiffs focus solely on the question of unbridled discretion. This explains the shift from the viewpoint-neutrality language to the unbridled discretion jargon.

Conversely, the University maintains that the only constitutional requirement for the mandatory fee system is that it actually operate in a viewpoint-neutral manner. The University does not see the unbridled discretion prohibition as a component of viewpoint neutrality, but rather as a separate constitutional standard, and one which applies only in the context of licensing and permit cases.

1. Unbridled discretion and viewpoint neutrality.

To determine whether the unbridled discretion standard is a component of viewpoint neutrality, we turn to several Supreme Court cases for guidance, beginning with Freedman v. Maryland, 380 U.S. 51 (1965). In Freedman, the Supreme Court considered the constitutionality of a state law requiring movies to be approved by a Board of Censors before being shown anywhere in the state. The Board had the authority to reject films considered "obscene" or that "tend[ed] in the judgment of the Board, to debase or corrupt morals or incite to crimes," terms that were broadly defined by the statute. Id. at 52, n.2. Rather than applying for a license from the Board, Ronald Freedman exhibited an unlicenced film at his theater and then challenged the constitutionality of the licensing scheme. Id. at 52-53. The Court in Freedman held that the state law constituted a prior restraint on speech and established a censorship system, and thus was constitutional only if it satisfied certain procedural safeguards. Specifically, the Court held that given the grave dangers of a censorship system, to avoid constituting an invalid prior restraint

(1) any restraint prior to judicial review can be imposed only for a specified brief period during which the status quo must be maintained; (2) expeditious judicial review of that decision must be available; and (3) the censor must bear the burden of going to court to suppress the speech and must bear the burden of proof once in court. Thomas, 534 U.S. at __, 122 S.Ct. at 779 (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), and summarizing the Freedman standard).

Because the Maryland licensing scheme lacked these procedural safeguards, the Supreme Court held that the motion picture censorship statute violated the First Amendment.

While Freedman focused on the procedural requirements for a prior restraint and censorship system, as opposed to the unbridled discretion standard, it is important to begin with Freedman because later unbridled discretion cases rely heavily on Freedman's standing analysis. This is because the Court in Freedman began its discussion by noting that

[i]n the area of freedom of expression it is well established that one has standing to challenge a statute on the ground that it delegates overly broad licensing discretion to an administrative office whether or not his conduct could be proscribed by a properly drawn statute, and whether or not he applied for a license. Id. at 56 (emphasis added).

The Court further explained that standing in such cases was appropriate "because of the danger of sweeping and improper application in the area of First Amendment freedoms." Id. This language, while very general, acknowledges the constitutional infirmity of overly broad licensing discretion, and provides for standing to facially challenge such discretion.

More directly discussing the question of unbridled discretion is the Supreme Court's decision in Shuttlesworth v. City of Birmingham, 394 U.S. 147 (1969). In Shuttlesworth, the appellant challenged the constitutionality of a city ordinance making it an offense to participate in a parade, procession or other public demonstration without first obtaining a permit from the city commissioner. Id. at 149. The ordinance granted the commissioner absolute power to deny a permit to protect "public welfare, peace, safety, health, decency, good order, morals or convenience." Id. at 149. The Court began its analysis by reiterating its consistent condemnation of " 'licensing systems which vest in an administrative official discretion to grant or withhold a permit upon broad criteria unrelated to proper regulation of public places.' " Id. at 153 (quoting Kunz v. New York, 340 U.S. 290 (1951) (citing Saia v. New York, 334 U.S. 558 (1948)); Niemotko v. Maryland, 340 U.S. 268 (1951)). The Court then concluded that the city's ordinance, as written, was unconstitutional because it conferred upon the city commission "virtually unbridled and absolute power to prohibit any 'parade,' 'procession,' or 'demonstration' on the city's streets or public ways." Id. at 150.

The evolution of the unbridled discretion standard continued with the Supreme Court's decision in City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750 (1988) (4-3 decision). In that case, the City of Lakewood passed an ordinance authorizing the mayor to issue applications for annual permits for the installation of newsracks on public property. Id. at 753. While authorizing the mayor to grant or deny applications for annual newsrack permits, the ordinance did not specify any criteria to guide the mayor's decision. Id. at 753. If the mayor denied the permit, he was only required to "stat[e] the reasons for such denial." Id. But even if the mayor approved the application, in issuing the permit the city could subject the annual permit to several terms and conditions, including any "terms and conditions deemed necessary and reasonable by the Mayor." Id. at 753-54. Rather than applying for the permit, a newspaper publisher sued the city, alleging that the ordinance at issue violated the First Amendment. Id. at 754.

In Lakewood, the Supreme Court first considered whether the newspaper had standing to present a facial challenge to the ordinance since it had never applied for a permit. Relying on Freedman, the Court noted that its "cases have long held that when a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." Id. at 755-56. The Court then explained the rationale for allowing a facial challenge to a statute allegedly vesting unbridled discretion in a government official, noting two identifiable risks to free expression--the risk of self-censorship and the risk that the licensing official, not limited by express standards, will use his power to suppress speech. Id. at 757-58. As to the risk of self-censorship, the Supreme Court explained:

[T]he mere existence of the licensor's unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused. . . . Self-censorship is immune to an "as applied" challenge, for it derives from the individual's own actions, not an abuse of government power. . . . Only standards limiting the licensor's discretion will eliminate this danger by adding an element of certainty fatal to self-censorship. Id. at 757-58 (internal citation omitted).

The Court also expounded more fully on the second risk:

Second, the absence of express standards makes it difficult to distinguish, "as applied," between a licensor's legitimate denial of a permit and its illegitimate abuse of censorial power. Standards provide the guideposts that check the licensor and allow courts quickly and easily to determine whether the licensor is discriminating against disfavored speech. Without these guides post hoc rationalizations by the licensing official and the use of shifting or illegitimate criteria are far too easy, making it difficult for courts to determine in any particular case whether the licensor is permitting favorable, and suppressing unfavorable, expression. . . . In sum, without standards to fetter the licensor's discretion, the difficulties of proof and the case-by-case nature of "as applied" challenges render the licensor's action in large measure effectively unreviewable. Id. at 758-59.

After summarizing the rationale underlying the unbridled discretion standard, the Court in Lakewood held that the ordinance violated the First Amendment by not imposing the necessary standards to limit the mayor's discretion: "It is apparent that the face of the ordinance itself contains no explicit limits on the mayor's discretion. Indeed, nothing in the law as written requires the mayor to do more than make the statement 'it is not in the public interest' when denying a permit application." Id. at 769.

While Lakewood was a 4-3 decision, the Supreme Court applied the same standing analysis and unbridled discretion standard in Forsyth County v. Nationalist Movement, 505 U.S. 123 (1992), a case involving a parade-permit ordinance. In Forsyth County, the county passed an ordinance requiring a permit for any parade, assembly or demonstration, and requiring every permit applicant to "pay in advance for such permit, for the use of the County, a sum not more than $1,000.00 for each day such parade, procession, or open air public meeting shall take place." Id. at 126 (internal citation omitted). However, the ordinance also allowed the county administrator "to adjust the amount to be paid in order to meet the expense incident to the administration of the Ordinance and to the maintenance of public order in the matter licensed." Id. at 127 (internal citation omitted). An organization called the Nationalist Movement applied for a permit to hold a rally. The county imposed a $100 fee for issuance of the permit based on 10 hours of the county administrator's time. "The fee did not include any calculation for expenses incurred by law enforcement authorities . . . [and] [t]he 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." Id. at 127. The Nationalist Movement nonetheless refused to pay the $100 fee, and instead sued the County alleging that the ordinance was facially invalid because it granted the County overly broad discretion for determining the amount of the permit fee.

The Court in Forsyth began by stating that a permit system "must meet certain constitutional requirements. It may not delegate overly broad licensing discretion to a government official." Id. at 130. The Court next addressed the issue of standing, explaining "the success of a facial challenge on the grounds that an ordinance delegates overly broad discretion to the decisionmaker rests not on whether the administrator has exercised his discretion in a contentbased manner, but whether there is anything in the ordinance preventing him from doing so." Id. at 133 n.10. Based on this well-established principle, the Court concluded that the Nationalist Movement had standing to present a facial challenge.

The Court next considered whether the ordinance violated the First Amendment by providing the county officials with unbridled discretion. The Court concluded that it did, explaining:

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, 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 administrator. 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. Id. at 132-33.

Most recently, in Thomas, the Supreme Court applied the unbridled discretion standard to the Chicago Park District's permit scheme. In that case, several political activists brought a facial challenge to the constitutionality of a Chicago ordinance which required individuals to obtain a permit to hold "a public assembly, parade, picnic, or other event involving more than fifty individuals" on Chicago Park District property. 534 U.S. at __, 122 S.Ct. at 777. One issue before the Court in Thomas was whether the procedural safeguards set forth in Freedman applied to the Chicago ordinance. Id. at 779. See supra at 14-16 setting forth the Freedman procedural safeguards. The Supreme Court concluded that "Freedman is inapposite because the licensing scheme at issue was not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum." Id. The Court nonetheless noted that "[w]here the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content." Id. at 780. Thus, as the Court explained, the ordinance must "contain adequate standards to guide the official's decision and render it subject to effective judicial review." Id. The Court then reviewed the various provisions of the ordinance, and concluded that the ordinance provided reasonably specific and objective standards to limit the discretion of the Park District and to protect against the risk that the Park District would deny a permit based on the content of the speech involved. Id. at 780-81. Accordingly, the Court held that the ordinance sufficiently limited the licensing official's discretion so as to satisfy First Amendment concerns. Id. at 781.

From this line of cases there is much to be garnered, but we begin with the initial question of whether the unbridled discretion standard is part of the constitutional requirement of viewpoint neutrality. While the Supreme Court has never expressly held that the prohibition on unbridled discretion is an element of viewpoint neutrality, we believe that conclusion inevitably flows from the Court's unbridled discretion cases. From the earliest unbridled discretion cases to Thomas, the Supreme Court has made clear that when a decisionmaker has unbridled discretion there are two risks: First, the risk of self-censorship, where the plaintiff may edit his own viewpoint or the content of his speech to avoid governmental censorship; and second, the risk that the decisionmaker will use its unduly broad discretion to favor or disfavor speech based on its viewpoint or content, and that without standards to guide the official's decision an as-applied challenge will be ineffective to ferret out viewpoint discrimination. Both of these risks threaten viewpoint neutrality. See, e.g., Thomas, 534 U.S. at __, 122 S.Ct. at 780 ("Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content.") (emphasis added); Lakewood, 486 U.S. at 763-64 ("[W]ithout standards governing the exercise of discretion, a government official may decide who may speak and who ...

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