Timothy SULLIVAN et al. Plaintiffs, v. CITY OF AUGUSTA, Defendant, 406 F. Supp. 2d 92

ORDER ON MOTIONS FOR JUDGMENT ON LIABILITY WOODCOCK, District Judge. To march is to speak. A parade, as speech, especially as political speech, invokes the First Amendment and commands this Court’s protection. A march can be a powerful and effective community expression of ethos: to celebrate our heroes — as on Veterans’ Day; to applaud our commonly-held values — as on July 4th; or, consistent with this Country’s longest-held traditions, to protest our policies and attempt to effect change — as in Selma or Washington, D.C.

Because the right to march lies at the core of our freedoms, this Court concludes Maine’s capital city of Augusta may regulate parades only at the edges. It strikes down municipal regulations based on content or viewpoint discrimination and leaves standing those that are wholly neutral. I. FACTUAL BACKGROUND This case marches on. On March 15, 2004, Timothy Sullivan sought a temporary restraining order against the city of Augusta’s parade ordinance, claiming its provisions violated the First Amendment rights of the March for Truth Coalition.

The Coalition wished to parade on the streets of Maine’s capital city to advocate for a host of causes, both political and economic. This Court granted Mr. Sullivan’s motion for temporary restraining order only as to the city’s bond requirement, leaving the remainder of the ordinance intact. The Plaintiffs have regrouped and reformed, adding a party, a lawyer, and additional evidence raising new issues. This time they have sustained their burden and this Court grants judgment in then-favor. A. Parade Ordinance Fee The relevant portions of the Parade Ordinance, § 13-5, provide: (

a) No less than thirty (30) days prior to an intended .parade, march or other use of public ways within the city, a permit must be applied therefor to the City Police Chief or his designee. The City Manager may allow a shorter time frame for good cause shown. (

c) Within ten (10) days of applying for the permit, as a condition to its issuance, the applicant must meet with the Police Chief to discuss and attempt to agree on the details of the route and other logistics. (

d) The Police Chief may deny the permit or alter the route for traffic or safety reasons and impose reasonable conditions including, but not limited to, time limits, requirement to keep moving and on route, no amplification or sound truck, no explosives, fireworks or other artificial noise; (

e) The cost of the permit shall be one hundred dollars ($100.00), plus the costs of traffic control per city collective bargaining agreement and clean up costs, as estimated by the Police Department. The permit fee will not include the cost of police protection for public safety. The one hundred dollar ($100.00) fee is payable at the time the application is submitted and the balance at the time of its issuance. The City Council may modify this fee from time to time by Order. (Code 1970 § 15-6; Ord. No. 244, 1-6-92; Ord. No. 106, 9-8-03; Ord. No. 54, 4-5-04)(Docket # 50 — Ex. 2).

If the permit is denied or modified, the applicant may appeal in writing within five days to the City Clerk’s office “for determination by the City Council.” Id. at 3-15(g). B. Mass Outdoor Gathering Ordinance (MOGO).

Section 3-116 of the MOGO provides: (

a) It is recognized that a mass outdoor , gathering attended by two hundred (200) or more persons may create a hazard to public health and safety. Accordingly, it is deemed to be appropriate and in the interest of the public welfare to regulate the conduct of such gatherings in order to protect the public health and safety. (

b) No person shall sponsor, promote or conduct a mass outdoor gathering with the intent to attract or the understanding that the gathering may attract two hundred (200) or more persons until a permit has been obtained thereof from the Augusta Police Chief or his designee. The application for a permit must be submitted no less than thirty (30) days prior to the mass gathering, unless the City Manager allows a shorter time frame for good cause shown. (Code 1970, § 3-57; Ord. No. 105, 9-8-03).

Section 3-117 directs that: The Police Chief shall grant a permit to sponsor, promote or conduct a mass outdoor gathering to be attended by two hundred (200) or more persons upon written application therefore unless it appears to the Police Chief within a reasonable certainty that such gathering will unreasonably endanger the public health or public safety. (Code 1970, § 3-58; Ord. No. 105, 9-8-03).

Section 3-118 states: Prior to the issuance of a permit under this article, the applicant shall furnish the Police Chief with adequate proof that the following will be available at the gathering:

(1) The furnishing of adequate and satisfactory water supply and sewer facilities;

(2) Adequate refuse storage and disposal facilities, adequate medical facilities;

(3) Adequate fire and police protection; and

(4) Such other matters as may be appropriate for security of health and safety. The Police Chief may review such plans, specifications and reports as is deemed necessary for a proper review of the proposed mass gathering. (Code 1970, § 3-59, Ord. No. 105, 9-8-03). The permit fee is $100.00, plus the “cost estimated by the City for cleanup and traffic control”.

Section 3-120. The MOGO provisions do not apply “to athletic events conducted by the Board of Education, Little League or other organizations, provided alcohol is not available.”

Section 3-122. C. The Applications 1. Timothy Sullivan’s February 9, 2004 Application On February 9, 2004, on behalf of the March for Truth Coalition, Mr. Sullivan filed an “Application for Parade Permit” with the City Police Department, proposing three parade routes. The permit stated the parade would be held on Saturday March 20, 2004, between 12:30-2:00 p.m. Sullivan, 310 F.Supp.2d at 351.

Of three approved parade routes, Augusta Deputy Police Chief Major Gregoire (Major Gregoire) determined the first would require twelve officers and two police vehicles for traffic control, costing $2,077.44 and the second, ten officers and two police vehicles, costing $1,761.20. In later discussions, Major Gregoire approved a third route, costing $1,543.08. Id.

To calculate these costs, Major Gregoire considered only the following factors: “the route to be taken, the duration of the route, the estimated number of people who will attend, whether marchers intend to close the entire road or only one direction of travel, and whether there are any other events or special circumstances within the City which could affect traffic.” Gregoire Supplemental Aff. ¶ 6 (Docket # 50). Major Gregoire based his assessment of traffic control needs only on factors “completely unrelated to the message to be communicated by marchers.” Id. Mr.

Sullivan (and the March for Truth Coalition) claimed not to have the resources to pay the permit fee. Id.; Sullivan Dep. at 8:6-12:3, 17:7-18:13 (Docket # 56 — Attach. I). 2. Lawrence Dansinger’s August 23, 2004 Application On August 3, 2004, Lawrence Dansinger applied for a parade permit to hold a peace march/rally on October 16, 2004 in conjunction with the Million Worker March to be held in Washington, D.C. the next day. Pis.’ Statement of Mat. Facts at ¶46 (Docket #43 — Attach. 1) (PSMF). Mr. Dansinger agreed to apply for the permit and assumed Mr.

Sullivan and Tony Aman “would be doing other aspects of the organizing.” Dansigner Dep. at 19:10-12 (Docket # 56 — Attach. 2). The Augusta Police Department responded to Mr. Dan-singer’s application by letter dated September 15, 2004, advising him that, in addition to the initial application fee of $100.00, approval of the parade permit was conditioned on payment of $1,979.32. PSMF ¶ 53. Mr.

Dansinger responded by a letter from his attorney dated September 29, 2004, explaining that the permit fee of almost $2,000.00 created a substantial financial hardship for him and requesting the fee be waived because of his limited financial means. Id. ¶ 54. This letter explained that Mr. Dansinger’s annual income was $8,400.00, asserted that he could not afford to pay the additional estimated permit fee, and requested that the City establish an inability to pay exception for the traffic control fees charged for free speech activities. Id. The City never responded. Id. ¶ 55.

The Augusta Police Department does not consider financial hardship in acting upon an application for a parade permit. Id. D. Sullivan I: This Court’s Previous Decision In Sullivan I, this Court addressed only the constitutionality of the Parade Ordinance, not the MOGO.

This Court upheld the City’s mandatory application fee and imposition of costs associated with police services, stating there “is no evidence ... the application fee is anything but administrative” and “the police fee is simply a mathematical computation based on the Police Chiefs assessment of the police presence necessitated by the parade route.” Sullivan, 310 F.Supp.2d at 354.

However, this Court struck down the ordinance’s bond requirement, explaining that it “requires to some degree that the police chief assess the content of the proposed event” and “fails to articulate the standards by which such a determination .. .may be made.” Id. at 355. In response, the City amended the Parade Ordinance and the MOGO to delete the bond provision. See supra 351 n. 2. II. LEGAL STANDARD The parties have submitted this case on a stipulated record, which “allows the judge to decide any significant issues of material fact that he discovers.” Boston Five Cents Sav. Bank v.

Sec’y of Dep’t of Housing & Urban Dev., 768 F.2d 5, 11-12 (1st Cir.1985). III. DISCUSSION The Plaintiffs contend that certain of the City’s ordinances are unconstitutional both on their face and as applied because they impermissibly discriminate based on content, allow too much discretion in the licensing authority, are not narrowly tailored to serve a significant governmental interest while preserving ample alternatives for communication, and do not provide an exception to the large permit fee for citizens or groups for whom the fee causes a substantial financial hardship. A.

Standing As a threshold matter, this Court must examine the City’s contention that the Plaintiffs do not have standing to raise facial challenges to the constitutionality of the MOGO and the thirty-day advance notice requirement in both ordinances. Def’s Resp. to Pis.’ Mot. for J. on Liability and Cross-Mot. for J. on Liability and Incorporated Mem. of Law at 15, 33 (Docket # 48)(Def.’s Resp.).

Article III standing contains three elements: (1) “an injury in fact”; (2) “a causal connection between the injury and the conduct complained of’; and, (3) likelihood that the injury will be “ ‘redressed by a favorable decision.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The first element of the standing inquiry — the injury in fact — is “an invasion of a legally protected interest which is (

a) concrete and particularized ... and (b) ‘actual or imminent, not conjectural or hypothetical.’ ” Id. at 560, 112 S.Ct. 2130 (citations omitted). A plaintiff must show that “ ‘he has sustained or is immediately in danger of sustaining some direct injury’ as the result of the challenged official conduct.” City of Los Angeles v. Lyons, 461 U.S. 95, 101-02, 103 S.Ct. 1660, 75 L.Ed.2d 675 (1983) (citations omitted). Interwoven with these

Article III elements are prudential considerations that limit which cases a court may hear, including the requirement that: “plaintiff generally must assert his own legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third parties.” Sec’y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 955, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (citations omitted). When a challenge asserts that a statute or ordinance is, on its face, unconstitutional, particularly in the First Amendment context, the type of facial challenge affects the standing analysis.

A statute may be facially unconstitutional if (1) “it is unconstitutional in every conceivable application”; or, (2) “it seeks to prohibit such a broad range of protected conduct that it is unconstitutionally overbroad.” Members of City Council v. Taxpayers for Vincent, 466 U.S. 789, 796, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). Concerning the first type of challenge, courts have not created “any exception from the general rule that constitutional adjudication requires a review of the application of a statute to the conduct of the party before the Court”. Id. at 798, 104 S.Ct. 2118.

However, when “the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression”, courts have applied a more relaxed standard. Munson, 467 U.S. at 956-57, 104 S.Ct. 2839; Taxpayers for Vincent, 466 U.S. at 799, 104 S.Ct. 2118; Forsyth County v.

The Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992)(“it is well established that in the area of freedom of expression an over-broad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable. . .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”) (citations omitted); Freedman v.

Maryland, 380 U.S. 51, 56, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)(“In 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.”). The rationale for this relaxation is that when a statute is unduly overbroad, there exists “a danger of chilling free speech” in society as a whole. Munson, 467 U.S. at 956-57, 104 S.Ct. 2839; Broad-rick v.

Oklahoma, 413 U.S. 601, 612-13, 93 5.Ct. 2908, 37 L.Ed.2d 830 (1973)(discuss-ing cases where a plaintiff has standing to bring facial overbreadth challenges, including prior restraint and unreasonable time, place and manner claims, “not because his own rights have been violated, but because of a judicial prediction or assumption that the statute’s very existence may cause others not before the court to refrain from constitutionally protected speech or expression”). Plaintiffs argue they are mounting such a facial challenge.

Pls.’ Reply Mem. in Support of Mot. for J. on Liability Issues and Obj. to Defi’s Cross Motion for J. on Liability Reply at 3 (Docket # 55)(Pls. ’s Reply)(“Because the potential application of the City’s MGO and the 30-day advance notice requirements in both its Parade Ordinance and its MGO may chill the speech of the Plaintiffs or others .. .Plaintiffs have standing”)(emphasis supplied). As noted by the Supreme Court in Forsyth, a classic example of overbreadth is an ordinance that “delegates overly broad discretion to the decisionmaker.” 505 U.S. at 129, 112 S.Ct. 2395.

Among the attacks Plaintiffs launch are challenges to the discretion allowed the decisionmaker in both ordinances regarding the computation of the traffic control fee and the waiver of the 30-day notice fee. Pis.’ Mot. for J. on Liability Issues Based on a Stipulated Record at 3-4, 25-29 (Docket # 43)(Pls. ’ Mot.). This Court agrees the Plaintiffs have raised a challenge to the statute’s reach sufficient to relax the prudential limitations on standing. This does not end the standing inquiry. The First Circuit recently noted in Osediacz v.

City of Cranston, 414 F.3d 136 (1st Cir.2005): “When certain types of facial challenges to statutes, ordinances, regulations, or governmental policies are premised on First Amendment grounds, they invite a lowering of conventional standing barriers because the traditional jus tertii ban on litigating the rights of third parties is arguably inapplicable... [citing Forsyth County [¶]... thus, the lowering of the bar intersects with standing doctrine only on the issue of third-party standing". Id. at 140, 112 S.Ct. 2395 (emphasis supplied).

The Court went on to state; however, that “the Court did not, however, carve out any exception to the core requirements of constitutional standing. These requirements, including the bedrock requirement that the plaintiff. .. have suffered an injury in fact, were left intact.” Id. at 141, 112 S.Ct. 2395. See also Munson, 467 U.S. at 958, 104 S.Ct. 2839 (“The crucial issues are whether Munson satisfies the requirement of ‘injury-in-fact,’ and whether it can be expected satisfactorily to frame the issues in the case. If so, there is no reason that Mun-son need also be a charity.

If not, Munson could not bring this challenge even if it were a eharity”)(emphasis supplied); Schaumburg v. Citizens for Better Env’t., 444 U.S. 620, 634, 100 S.Ct. 826, 63 L.Ed.2d 73 (1980)(“práew a case or contro versy, a litigant whose own activities are unprotected may nevertheless challenge a statute by showing that it substantially abridges the First Amendment rights of other parties not before the court”)(emphasis supplied); Laird v. Tatum, 408 U.S. 1, 13-14, 92 S.Ct. 2318, 33 L.Ed.2d 154 (1972)(noting, in a First Amendment case, that the federal courts “do not render advisory opinions”).

To challenge the MOGO, Plaintiffs must show that they meet the requirements of constitutional standing. While they bear the burden of proof on this issue, Lujan, 504 U.S. at 561, 112 S.Ct. 2130, the inquiry has been described as “not very demanding”. Osediacz, 414 F.3d at 143. In Ose-diacz, at issue was a Cranston, Rhode Island policy that allowed private parties to erect holiday displays on the south lawn of City Hall, subject to certain administrative requirements and mayoral approval. 414 F.3d at 137-38.

Plaintiff claimed the policy violated the First and Fourteenth Amendments, but the First Circuit, speaking through Judge Selya, concluded she had not shown “some reasonable possibility that she would be subject to the constitutionally defective action”. Id. at 143. Osediacz explained the record must contain “evidence sufficient to indicate an objectively reasonable possibility that she would be subject to the allegedly unconstitutional mayoral approval requirement”. Id. at 143.

Here, Plaintiffs’ reply motion gives the Court scant reason to conclude that the constitutional as opposed to the prudential requirements of standing, have been met. See Pis. ’ Reply at 3.

In their motion, however, Plaintiffs state that “the plain language of the Ordinance unequivocally applies to a march held on a public street in Augusta ‘with the intent to attract or with the understanding that the gathering may attract two hundred (200) or more persons’ ”... the unexplained exercise of discretion by the Augusta Police Department not to apply the City’s Mass Outdoor Gatherings Ordinance does not cure the unconstitutional content discrimination set forth in the plain language of the Ordinance itself. Pis. ’ Mot. at 24.

If Plaintiffs are correct that the MOGO applies to marches such as the ones that they wished to hold, this could satisfy the “reasonable possibility” that they would be subject to the constitutionally defective action. The City argues the MOGO does not apply to parades. Def.’s Resp. at 33-34. In support, Defendant makes two points: (1) the MOGO on its face does not apply to parades; and, (2) even if a “strained reading” could lead to the conclusion that it applied, the City has made it clear it does not. Id. Simply put, the City contends a mass gathering is not a parade.

However, the ordinance nowhere defines “mass gathering” and a parade could well meet common

definitions of the phrase. More specifically, the City points to the following language in the MOGO: “Prior to the issuance of a permit under this article, the applicant shall furnish the Police Chief with adequate proof that the following will be available at the gathering:

(1) The furnishing of adequate and satisfactory water supply and sewer facilities;

(2) Adequate refuse storage and disposal facilities, adequate medical facilities; .... ” Sec. 3-118. The City contends that “[t]he language of the ordinance, by requiring the applicant to provide the police chief with proof that water and sewer facilities, refuse storage and disposal facilities, and medical facilities were available, demonstrate that the permit requirements do not pertain to people simply walking on the sidewalk, even if more than 200 people are involved.” Def.’s Resp. at 33.

This Court, however, does not agree this language is so clear to conclude that there is no “reasonable possibility” this ordinance could not cover parades. Under this language, the City could well require the sponsor of a large parade to provide medical treatment and water for its marchers as well as trash receptacles. The requirement of sewer facilities (presumably portable toilets) would be less likely, but not out of the question. The ambiguity of this language is reflected in Major Gregoire’s testimony on October 6, 2004.

Responding to whether a large parade was a mass gathering, he stated: “That’s — I mean, that’s an

interpretation. I don’t know. I would have to review what the ordinance said. They are moving and that type of thing. They could be considered a parade. It’s a matter of

interpretation”. Gregoire Dep. at 5:13-17 (Docket # 56 — Attach. 6). It is true that Major Gregoire later read the MOGO language unambiguously. On March 15, 2005 in his supplemental affidavit, he stated: “the City interprets the Mass Outdoor Gathering permit to only apply to a gathering which occurs at a fixed location”. Gregoire Supplemental Aff. ¶ 13; Resp. to Pis. ’ Statement of Facts at ¶ 65 (Docket # 49XRPSF). Authoritative limiting constructions by the City are certainly relevant in evaluating the ordinance, see Ward v.

Rock Against Racism, 491 U.S. 781, 795-96, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), but this Court finds significant that the City first offered its limiting construction well into this lawsuit — over a year after Mr. Sullivan’s parade application. As such, this Court cannot consider the City’s

interpretation to be the kind of “long standing practice” which should guide the

interpretation of the ordinance. Paulsen v. Gotbaum, No. 90-Civ.-6152, 1992 WL 8361, *1 n. 1,1992 U.S. Dist. LEXIS 396, *1 n. 1 (S.D.N.Y. Jan. 14, 1992). Rather, it is an apparently non-binding, non-authoritative statement by the Deputy Chief of Police. If Major Gregoire changed his mind once, he could do so again. Indeed, the record reflects that from the time the Plaintiffs applied for their permits, there was a reasonable possibility that the City might interpret the MOGO to apply to their conduct. See Becker v.

FEC., 230 F.3d 381, 386 n. 3 (1st Cir.2000)(citing Lujan and other case law for the proposition that standing is to be assessed under the facts existing when the complaint is filed). Consequently, in light of Major Gregoire’s changing testimony and in the absence of any evidence of a standard long-standing municipal practice, this Court finds the city of Augusta has not adopted an authoritative

interpretation of the MOGO so as to eliminate its application to marches or parades. The Plaintiffs having satisfied the first element of the standing inquiry, i.e. that they were in the class of people potentially chilled by the language of the ordinance and thus suffered an injury in fact, must still show a causal connection between the injury and the conduct complained of, and a likelihood the injury will be redressed by a favorable decision. The second element requires a “fairly traceable” connection. Vt. Agency of Natural Resources v. United States ex rel.

Stevens, 529 U.S. 765, 771, 120 S.Ct. 1858, 146 L.Ed.2d 836 (2000) (citations omitted). The City argues there is no evidence the Plaintiffs altered their conduct in any way based on the language of the ordinance. Def.’s Resp. at 35. Nevertheless, one of Plaintiffs’ primary complaints involves the lack of a financial hardship exception, as even Defendant admits: “Sullivan’s only claim of injury is a claim that he paid too much for the parade permit fee.. .Dan-singer’s claimed injury is that.. .he could not afford the permit fee”. Id.

Both the Parade Ordinance and the MOGO have nearly identical provisions requiring fees for application, traffic control, and clean up costs. Sec 13.5(e); 3-120. If Plaintiffs had to show that they in fact applied for a MOGO permit to obtain standing to challenge the ordinance, it would not be enough simply to show that they were in the potential class chilled by the MOGO and that the fee provision was an obstacle to speech.

Instead, they would be limited to challenging the provisions of the Parade Ordinance — under which they actually applied for a permit and concerning which particular fee requirement they found onerous. However, given that Plaintiffs do not have to show that they in fact applied for a permit, see Freedman, 380 U.S. at 56, 85 S.Ct. 734; Osediacz, 414 F.3d at 143, their complaint regarding the deterrent effect of a financial hardship exception is fairly traceable not only to the fee provisions of the Parade Ordinance, but to the identical ones of the MOGO.

Likewise, striking down the fee provisions of the MOGO would provide some redress to the Plaintiffs’ complaint of foreclosed avenues of adequate expression based on financial hardship. See Pis.’ Mot. at 37 (“The lack of an exemption in both of the City’s Ordinances for citizens or groups who would suffer a substantial financial hardship from the permit fees also leaves the plaintiffs and many other Maine citizens and groups without ‘open, ample alternatives for communication’ ”). While the issue is a close one, Plaintiffs have standing to challenge the MOGO. B.

Ripeness The City asserts an additional preliminary matter; namely, that the claims against the MOGO are not ripe because there is no current justiciable controversy. Def.’s Resp. at 35. Ripeness generally involves an evaluation of the fitness of the issue and the hardship of withholding immediate judicial consideration. Rhode Island Ass’n of Realtors v. Whitehouse, 199 F.3d 26, 33 (1st Cir.1999). However, when free speech is at issue, the same chilling effect concerns call for a relaxation of ripeness requirements. El Dia, Inc., v.

Hernandez Colon, 963 F.2d 488, 496 (1st Cir.1992)(holding that “a facial challenge of this sort, implicating First Amendment values, customarily works a relaxation of the ripeness criteria”); Currence v. City of Cincinnati, 28 Fed.Appx. 438, 443 (6th Cir.2002); New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995). The First Circuit has explained that the rationale behind this relaxation stems from fear of irretrievable loss. El Dia, 963 F.2d at 496.

See also Gonzales, 64 F.3d at 1500 (“First Amendment rights of free expression and association are particularly apt to be found ripe for immediate protection, because of the fear of irretrievable loss. In a wide variety of settings, courts have found First Amendment claims ripe, often commenting directly on the special need to protect against any inhibiting chill”). Consequently, when First Amendment claims are presented, “reasonable predictability of enforcement or threats of enforcement, without more, have sometimes been enough to ripen a claim”. Id. at 1499 (citing Martin Tractor Co. v. Fed. Elec.

Comm., 627 F.2d 375, 380 (D.C.Cir.1980)). The standing and ripeness concerns are intertwined, the core being the reasonable fear of enforcement. Rhode Island, 199 F.3d at 29 (citing Adult Video Ass’n v. Barr, 960 F.2d 781, 786 (9th Cir.1992)(“Our conclusion that a reasonable threat of prosecution exists, for purposes of standing, effectively dispenses with any ripeness problem”), vacated, 509 U.S. 917, 113 S.Ct. 3028, 125 L.Ed.2d 716 (1993), reinstated in relevant part, 41 F.3d 503 (9th Cir.1994)). Here, Plaintiffs had a reasonable fear the ordinance would apply to their application.

Therefore, their claims would have been ripe as of that date. The question is whether the subsequent affidavit by Major Gregoire, stating that the City does not interpret the MOGO to apply to parades, alters this conclusion. The answer depends on when the ripeness inquiry should be made — at the time of complaint or at the time of decision. If the latter, Plaintiffs claim may not be ripe; if the former, it is. Somewhat surprisingly, however, this is hardly a straightforward issue. See Rhode Island, 199 F.3d at 33 (claims “ripe when filed”); Cmty. Hous. of Me. v.

Martinez, 146 F.Supp.2d 36, 44 (D.Me.2001)(“the real ripeness issue...is whether rights or obligations had been determined or legal consequences had flowed at the time the amended complaint was filed, when the policy was in force”); Ctr. for Science in Public Interest v. FDA, No. 03-1962, 2004 WL 2218658, at *3, 2004 U.S. Dist LEXIS 20781, at *8 (D.D.C. Sept. 17, 2004)(review conducted on facts existing at the time of the filing of the complaint); Sierra Club v. Dombeck, 161 F.Supp.2d 1052, 1062 (D.Ariz.2001)(same); Democratic Nat’. Comm. v. Watada, 198 F.Supp.2d 1193, 1197 (D.Haw.2002); Bradley v.

Work, 916 F.Supp. 1446, 1464 (S.D.Ind.1996)(same). But see Regional Rail Reorganization Act Cases, 419 U.S. 102, 140, 95 S.Ct. 335, 42 L.Ed.2d 320 (1974)(“sinee ripeness is peculiarly a question of timing, it is the situation now rather than the situation at the time of the District Court’s decision that must govern”); Buckley v. Valeo, 424 U.S. 1, 113-14, 96 S.Ct. 612, 46 L.Ed.2d 659 (1976)(“ ‘ripeness is peculiarly a question of timing’, and therefore the passage of months between the time of the decision of the Court of Appeals and our present ruling is of itself significant”) (citation omitted); Am.

Motorists Ins. Co. v. United Furnace Co., 876 F.2d 293, 302 n. 4 (2d Cir.1989)(“We note that it is irrelevant whether the case was ripe for review when the complaint was filed”); Manley v. Texas, No. 6-01CV231, 2001 U.S. Dist. LEXIS 25427, at *5-*6 (E.D.Tex.2001)(“whether a case is ripe depends on the state of affairs at the time the court is called upon to render a decision”). This Court concludes that the Regional Rail line of authority is distinguishable from this case. In the Regional Rail cases, the issue was whether intervening events could make ripe a previously unripe challenge.

In contrast, the current concern is whether intervening events can render unripe a previously ripe challenge. Upon analysis, this issue is one of mootness, rather than ripeness. See Martinez, 146 F.Supp.2d at 44 (“HUD also argues that because the policy has been retracted it is not an action by which rights or obligations have been determined, or from which legal consequences will flow. That argument conflates ripeness and mootness”); Warth v.

Seldin, 422 U.S. 490, 499 n. 10, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975)(defining the ripeness inquiry as turning on “whether the harm asserted has matured sufficiently to warrant judicial intervention” and the mootness inquiry as turning on “whether the occasion for judicial intervention persists”). This Court concludes that the proper moment to determine the ripeness of Plaintiffs’ cause of action is not now, but the time of the complaint. Thus, the Plaintiffs’ facial challenge to the MOGO is ripe for judicial consideration. C.

The Ordinances Turning at last to the parties’ substantive arguments, the first step is to determine what level of scrutiny to apply. In the world of First Amendment law, the standard of scrutiny depends on content neutrality. Regulations of speech not regarded as content neutral will be sustained only if they are shown to be narrowly tailored to promote a compelling government interest. United States v. Playboy Entm’t. Group, Inc., 529 U.S. 803, 813, 120 S.Ct. 1878, 146 L.Ed.2d 865 (2000).

Reasonable restrictions on the time, place, or manner of protected speech regarded as content neutral, however, receive “intermediate” rather than “strict” scrutiny. Casey v. City of Newport, 308 F.3d 106, 110-11 (1st Cir.2002). See also Ward, 491 U.S. at 791, 109 S.Ct. 2746; Nat’l Amusements, Inc. v. Town of Dedham, 43 F.3d 731, 736 (1st Cir.1995). 1.

Content In Ward, the Supreme Court explained that “the principal inquiry in determining content neutrality, in speech cases generally and in time, place, or manner cases in particular, is whether the government has adopted a regulation of speech because of disagreement with the message it conveys.” Ward, 491 U.S. at 791, 109 S.Ct. 2746. “Thus, a law designed to serve purposes unrelated to the content of protected speech is deemed content-neutral even if, incidentally, it has an adverse effect on certain messages while leaving others untouched.” McGuire v. Reilly, 260 F.3d 36, 43 (1st Cir.2001)(citing Hill v.

Colo., 530 U.S. 703, 736, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 47-48, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986)). The critical inquiry in determining content neutrality is not whether certain speakers are disproportionately burdened, but rather, whether the reason for the differential treatment is, or is not, content-based.

See Hill, 530 U.S. at 719-20, 120 S.Ct. 2480 (positing that a statute is content-neutral when it does not directly regulate speech, or bears a legislative history evidencing its neutrality and is content-neutral on its face, or advances interests unconnected to expressive content).

So long as a legitimate purpose unrelated to expressive content can be shown, “all that remains is for the government to show that accomplishment of the legitimate purpose that prompted the law also rationally explains its differential impact.” McGuire, 260 F.3d at 44 (citing City of Renton, 475 U.S. at 47-48, 106 S.Ct. 925; Natl Amusements, 43 F.3d at 738). See also McGuire v. Reilly, 386 F.3d 45, 63 (1st Cir.2004)(indicating that some showing of discriminatory intent is necessary to make out an as-applied First Amendment viewpoint discrimination claim when legislative motivations were content neutral). a.

MOGO The Plaintiffs argue that, on its face, the MOGO impermissibly discriminates in favor of athletic events, because the ordinance exempts all “athletic events conducted by the Board of Education, Little League or other organizations, provided that alcohol is not available.” Pis. ’ Mot. at 23 (quoting § 3-122). This Court agrees that the MOGO purposefully provides for content-based differential treatment and is subject to strict scrutiny. The Supreme Court has held that a restriction on speech is content-based when, like here, the message determines whether the speech is subject to the restriction.

See Arkansas Writers’ Project, Inc., v. Ragland, 481 U.S. 221, 230, 107 S.Ct. 1722, 95 L.Ed.2d 209 (1987). Accordingly, courts have found ordinances providing similar exemptions to be content-based regulations. See, e.g., Hotel Employees & Res. Employees Union, Local 2850 v. City of Lafayette, No. C-95-3519 SAW, 1995 WL 870959, at *2 (N.D.Cal. Nov. 2, 1995)(exemption for “vehicular wedding or funeral procession” is content-based); Trewhella v.

City of Lake Geneva, 249 F.Supp.2d 1057, 1068-69 (E.D.Wis.2003)(exemption for labor union picketers, school groups, veterans’ organizations and governmental agencies is content-based); Ohio Citizen Action v. City of Avon Lake, 986 F.Supp. 454, 458-60 (N.D.Ohio 1997)(exemption for individuals “seventeen years of age or younger... soliciting contributions or offering for sale any goods for any religious, charitable, civic, educational or political organization, or... soliciting for a newspaper or something personally manufactured, raised or produced, or.. .rendering personal services” is content-based).

In contrast, the Supreme Court determined that a permit ordinance covering all types of large-scale events — including political and athletic events — at a public park did not discriminate on the basis of content because “none of the grounds for denying a permit has anything to do with what a speaker might say”: the “picnicker and soccer-player, no less than the political activist or parade marshal, must apply for a permit of the 50-person limit is to be exceeded.” Thomas v. Chicago Park District, 534 U.S. 316, 322, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002).

The MOGO, on its face, discriminates based on the subject matter of the speech by exempting certain categories of gatherings from the permit requirement. The MOGO’s exceptions regulate on the basis of the subject-matter of the gathering. The same size event, in the same place, with the same impact — -indeed the same people present — so long as the event concerns athletics — is excused from obtaining a permit. For this reason, the MOGO cannot be considered content-neutral. See Dowling v. Township of Woodbridge, No. Civ.05-313(WGB), 2005 WL 419734, at *5 (D.N.J.

Feb. 22, 2005)(exempting certain categories of demonstrations from the preregistration requirement is a content-based regulation); N.J. Freedom Org. v. City of N.B., 7 F.Supp.2d 499, 509 (D.N.J. 1997). Once an ordinance is found not to be content-neutral, it can be upheld only if it is found necessary to serve a compelling state interest and narrowly drawn to achieve that end. Perry Educ. Ass’n v.

Perry Local Educators’ Ass’n, 460 U.S. 37, 45, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983); Playboy, 529 U.S. at 813, 120 S.Ct. 1878 (“If a statute regulates speech based on its content, it must be narrowly tailored to promote a compelling Government interest. If a less restrictive alternative would serve the Government’s purpose, the legislature must use that alternative”). Such content-based restrictions are “presumptively invalid”. R.A.V. v. City of St. Paul, 505 U.S. 377, 382, 112 S.Ct. 2538, 120 L.Ed.2d 305 (1992) (citations omitted).

The justification for the MOGO is as follows: “It is recognized that a mass outdoor gathering attended by two hundred (200) or more persons may create a hazard to public health and safety. Accordingly, it is deemed to be appropriate and in the interest of the public welfare to regulate the conduct of such gatherings in order to protect the public health and safety.” Sec. 3-116.

Even if it is conceded that public health and safety are compelling state interests, the City has not put forth any evidence, much less any argument suggesting political or other non-athletic events are more likely to create a hazard to public health and safety than athletic events. In other words, the City fails to make any showing that the ordinance is either necessary or narrowly tailored. The MOGO, therefore, fails the strict scrutiny test. b. Parade Ordinance Plaintiffs characterize the permit requirement for marches under the Parade Ordinance as a “prior restraint on speech”. Pis.’ Mot. at 21.

The City, in contrast, paints the requirement as a valid “time, place and manner” restriction. Def.’s Resp. at 1. The difference between parties’ choice of labels again rests on the content-neutrality of the ordinance. In Cox v. State of New Hampshire, 312 U.S. 569, 61 S.Ct. 762, 85 L.Ed. 1049 (1941), the Supreme Court considered the constitutionality of a law requiring marchers to obtain a license and pay a fee of not more than $300.00 before parading on public streets.

Cox did not characterize that law as a “prior restraint,” but rather upheld the law as a reasonable regulation of the “time, place, and manner in relation to the other proper uses of streets”: Civil liberties, as guaranteed by the Constitution, imply the existence of an organized society maintaining public order without which liberty itself would be lost in the excesses of unrestrained abuses.

The authority of a municipality to impose regulations in order to assure the safety and convenience of the people in the use of public highways has never been regarded as inconsistent with civil liberties but rather as one of the means of safeguarding the good order upon which they ultimately depend. The control of travel on the streets of cities is the most familiar illustration of this recognition of social need.

Where a restriction of the use of highways in that relation is designed to promote the public convenience in the interest of all, it cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection. One would not be justified in ignoring the familiar red traffic light because he thought it his religious duty to disobey the municipal command or sought by that means to direct public attention to an announcement of his opinions.

As regulation of the use of the streets for parades and processions is a traditional exercise of control by local government, the question in a particular case is whether that control is exerted so as not to deny or unwarrantedly abridge the right of assembly and the opportunities for the communication of thought and the discussion of public questions immemorially associated with resort to public places. Id. at 574, 576, 61 S.Ct. 762 (citations omitted); see also Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).

However, in cases such as Forsyth County, and City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988), the Supreme Court analyzed licensing and permit regulations as “prior restraints,” rather than as time, place and manner regulations. Nevertheless, the Supreme Court in Forsyth noted that local governments may require permits for parades or rallies to regulate competing uses of public forum. Forsyth, 505 U.S. at 130, 112 S.Ct. 2395. The Supreme Court reconciled these seemingly contradictory precedents in Thomas.

While the plaintiffs in Thomas argued the park-permit ordinance constituted an unconstitutional prior restraint, the Court rejected a prior restraint formula: [T]he licensing scheme at issue here is not subject-matter censorship but content-neutral time, place, and manner regulation of the use of a public forum. The Park District’s ordinance does not authorize a licensor to pass judgment on the content of speech: None of the grounds for denying a permit has anything to do with what a speaker might say.

Indeed, the ordinance (unlike the classic censorship scheme) is not even directed to communicative activity as such, but rather to all activity conducted in a public park. The picnicker and soccer player, no less than the political activist or parade marshal, must apply for a permit if the 50-person limit is to be exceeded.

And the object of the permit system (as plainly indicated by the permissible grounds for permit denial) is not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful, or impermissible under the Park District’s rules, and to assure financial accountability for damage caused by the event.

As the Court of Appeals well put it: “[T]o allow unregulated access to all comers could easily reduce rather than enlarge the park’s utility as a forum for speech.” 534 U.S. at 322, 122 S.Ct. 775 (citation omitted). See also Bl(a)ck Tea Soe’y v.

City of Boston, 378 F.3d 8, 12 (1st Cir.2004)(“The Supreme Court has explicitly rejected attempts to analyze security-based time-place-manner restrictions as prior restraints.. .if content-neutral prohibitions on speech at certain places were deemed prior restraints, the intermediate standard of review prescribed in time-place-manner jurisprudence would be eviscerated”) (citations omitted).

Because the park-permit ordinance in Thomas did not concern itself with the content of the proposed speech, but rather was a “ministerial, police routine for adjusting the rights of citizens so that the opportunity for effective freedom of speech may be preserved,” the Court upheld the ordinance as a time, place and manner licensing system. Thomas, 534 U.S. at 323, 122 S.Ct. 775 (citing Poulos v. New Hampshire, 345 U.S. 395, 403 (1953)).

Under Thomas, the crucial difference between the two categories depends on whether the scheme is content-neutral or not and, therefore, in analyzing the parade ordinance, this Court returns to the question of content-neutrality. Acknowledging the ordinance is content-neutral on its face, the Plaintiffs allege the City has applied the Parade Ordinance in a discriminatory manner by waiving the parade permit fee for the Maine Chiefs of Police Association’s (Association) annual parade.

Although the Plaintiffs admit that the waiver of the traffic control fee for the Association’s annual parade “is understandable given that the Augusta Police Department is a member organization and it administers the City’s parade Ordinance,” they contend the waiver constitutes unconstitutional viewpoint discrimination because it favors certain types of speech, such as “pro-police,” over other types of speech, such as anti-war. Pis.’ Mot. at 24-25.

The City counters (1) a government subsidy for certain expressive activities, but not others, is constitutional; and, (2) a viewpoint discrimination claim requires proof of an intent to discriminate against speech because of its content, which is absent here. Def.’s Resp. at 7. The Plaintiffs retort that the City is not merely providing a subsidy for certain types of speech, but placing large financial obstacles against the exercise of speech — a fundamental difference. Plaintiffs challenge the authority of the City to subsidize speech based on content. Pis.’ Reply at 5-7.

They also contend the constitutional defect on the City’s parade fee can be cured only by eliminating the burdensome fees altogether, or, at the very least, providing a waiver when the fees create a substantial hardship. Id. at 6. The First Amendment guarantee of freedom of speech does not mean that the government must provide funds for or sponsor all speech equally. Rust v. Sullivan, 500 U.S. 173, 193, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); Stonewall Union v. City of Columbus, 931 F.2d 1130, 1138 (6th Cir.1991), disapproved on other grounds by Forsyth County, 505 U.S. at 129, 112 S.Ct. 2395.

This prerogative is limited only by the principle that the government may not selectively fund speech on the basis of its viewpoint when subsidizing the speech of private entities. Rosenberger v. Rector & Visitors of the University of Va., 515 U.S. 819, 834, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995); Regan v. Taxation with Representation, 461 U.S. 540, 548-50, 103 S.Ct. 1997, 76 L.Ed.2d 129 (1983). For example, the Supreme Court upheld the constitutionality of a subsidy for certain speakers — veterans’ organizations— when the distinction was not based on the content or messages of those groups’ speech.

Regan, 461 U.S. at 548, 103 S.Ct. 1997 (“the veterans’ organizations... are entitled to receive tax-deductible contributions regardless of the content of any speech they may use”). When the government itself is the speaker, or is using private entities to convey a governmental message, it is entitled to use public funds to do so, regardless of content-neutrality. Rust, 500 U.S. at 194, 111 S.Ct. 1759; Rosenberger, 515 U.S. at 833, 115 S.Ct. 2510.

By waiving the permit fee for the annual Association’s parade, the City has not maintained or administered the Parade Ordinance to disfavor or suppress one viewpoint in favor of another. Rather, the City has used its funds to promote and facilitate a speaker deemed to be in the public interest. See Long Beach Lesbian & Gay Pride, Inc. v. City of Long Beach, 14 Cal.App.4th 312, 17 Cal.Rptr.2d 861, 879 (1993)(holding the use of municipal funds to defray the cost of service charges for certain parades thought beneficial to the city not unconstitutional).

As in Regan, it is the speaker rather than the viewpoint that provides the basis for the subsidy. Regardless of the particular message a given march by the Association may convey or be intended to convey to the public and regardless of the content of any such expression, the City has deemed the mere existence of an expressive march by the Association to be in the public interest. Furthermore, the “Maine Chiefs of Police Association”, if not a governmental entity or a private entity conveying a governmental message, comes close.

Under these principles, there is reason to conclude that the City is entitled to sponsor their speech. Nor will this Court engage in hair-splitting by finding a constitutional difference between waiving a fee and paying it out of the City treasury. Either way, the City and more specifically its taxpayers bear the cost. The permit fee is not discrimi-natorily applied: it is “imposed on all, but in some cases paid by the City.” See id. “A refusal to fund protected activity, without more, cannot be equated with the imposition of a ‘penalty’ on that activity.” Harris v.

McRae, 448 U.S. 297, 317 n. 19, 100 S.Ct. 2671, 65 L.Ed.2d 784 (1980). The same issue was presented in Stonewall Union, wherein the organizers of a gay rights parade complained about the city’s sponsoring and paying the fees of other parades. The Sixth Circuit, relying on Harris, stated: [Although plaintiffs have a First Amendment right to parade on behalf of gay and lesbian rights, they do not have a right to demand that the City ... sponsor that right by paying their parade permit fees because it sponsors other speech-related activities.

If defendants can adequately show that the parades which they have sponsored and for which they have paid the permit fees are reasonably related to the government function which the sponsoring department of the city government performs, the fact that the City ... sponsors and pays the parade permit fees for certain activities related to government functions does not mean that the ordinance is diseriminatorily applied. 931 F.2d at 1138.

Likewise, here, although the Plaintiffs have a First Amendment right to hold a pro-peace and economic justice parade, they do not have a right to demand that the city of Augusta sponsor that right by paying the parade permit fees simply because it sponsors a speech-related activity closely related to its governmental function. Since Plaintiffs have failed to show that the Parade Ordinance is anything other than content-neutral, the requirements in the ordinance will be analyzed as time, place and manner restrictions subject to less rigid scrutiny.

In addition to the requirement of content-neutrality, time, place and manner restrictions are constitutional if they: (1) do not delegate overly broad licensing discretion to a government official; (2) are narrowly tailored to serve a significant government interest; and, (3) leave open ample alternative channels for communication of the information. For-syth County, 505 U.S. at 130, 112 S.Ct. 2395; Thomas, 534 U.S. at 323, 122 S.Ct. 775. The Court will examine each element. 2.

Discretion “[E]ven content-neutral time, place, and manner restrictions can be applied in such a manner as to stifle free expression.” Thomas, 534 U.S. at 323, 122 S.Ct. 775. Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk he will favor or disfavor speech based on its content. Id. (citing Forsyth County, 505 U.S. at 131, 112 S.Ct. 2395). “The dangers of discretion are particularly evident in parade permit schemes, where waivers will often be sought for politically controversial causes.

It is precisely when ‘political and social pressures’ are most likely to affect decisionmaking that objective standards to govern discretion are most essential.” N.A.A.C.P. v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir.1984). Therefore, the Supreme Court requires that permitting requirements contain narrow, objective, and definite standards to guide the licensing authority. Forsyth, 505 U.S. at 131, 112 S.Ct. 2395 (citing Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969)).

The Plaintiffs contend that the Parade Ordinance fails this test because (1) there are no written guidelines or formula for determining the number of police officers for traffic control; (2) there are no criteria for determining when there is “good cause” to waive the thirty-day notice requirement; and, (3) the requirement that a parade applicant meet with the Police Chief before the event and “attempt to agree on the details of the route and other logistics” is too vague and subjective. Pis. ’ Mot. at 25-30. a.

Traffic Control Fee The Plaintiffs argue that the Augusta Police Department’s determination of the estimated cost of traffic control “relies heavily on a judgment call about the number of officers that are required to provide traffic control” because the Police Department “has never established any written criteria or .formula for calculating the number of officers or vehicles as part of its estimate of the traffic control cost.” Pis.’ Mot at 26.

Plaintiffs suggest this “broad subjectivity and discretion” is illustrated by the Police Department’s increase of “its estimate by twenty percent, from eight to ten, for the number of police officers needed to provide traffic control for the parade route used on April 8, 2003 when the same exact route was proposed for the March 20, 2004 parade.” Id. at 26-27.

They argue the lack of any standards for calculating the number of police officers required for traffic control “magnifies the danger that the police department will im-permissibly assign more police officers (and thus charge a higher fee) for traffic control when the proposed parade is controversial and a counter-demonstration or opposition activities are expected.” Id. As long ago as Cox, the Supreme Court held that a state may require, as a condition to engaging in expressive activity, a permit applicant pay fees to defray policing costs directly attributable to the speech activity.

Cox, 312 U.S. at 576-77, 61 S.Ct. 762. Cox upheld a fee that ranged from “$300 to a nominal amount” and was intended “to meet the expense incident to the administration of the [licensing] act and to the maintenance of public order in the matter licensed.” Id. Since Cox, courts have refined this general rule, subjecting license and fee requirements to closer constitutional analysis.

In Forsyth County, the Supreme Court considered a facial challenge to a county ordinance that required permits for private demonstrations and other uses of public property and imposed a fee of up to $1,000 to meet the expense of the ordinance’s administration and the maintenance of public order.

The Supreme Court found the ordinance unconstitutional because it granted unfettered discretion to the county administrator charged with setting the permit fee, and because the ordinance, by taking into consideration the costs of “necessary and reasonable protection of persons participating in or observing said... activity”, arguably based the fee in part on the content of the speech. 505 U.S. at 132-34, 112 S.Ct. 2395; see also City of Lafayette, 1995 WL 870959, at *4 n. 9 (the ordinance granted excessive discretion to the police chief to determine fees where the police chief was required to estimate the city personnel hours necessary to control traffic “or otherwise monitor the special event”).

In Stonewall Union, the ordinance provided that the following factors must be considered in determining the number of officers necessary for policing a parade: time, date, route, length, number of participants, and vehicles. 931 F.2d at 1135.

Furthermore, a police lieutenant stated by affidavit that the standard criteria used to determine the optimal number of police officers included: (1) the proposed route and the designated route for the parade; (2) the time of day that the event is to take place; (3) the date and day of the week proposed; (4) the general traffic conditions in the area requested, both vehicular and pedestrian; special attention given to the rerouting of the vehicles or pedestrians normally using the requested area; (5) the number of marked and unmarked intersections along the route requested, together with the traffic control devices present; (6) if traffic must be completely rerouted from the area, then the number of marked and unmarked intersections and the traffic control devices; (7) the estimated number of participants; (8) the estimated numbers of viewers; (9) the nature, composition, format and configuration of the parade or run; (10) the anticipated weather conditions; and (11) the estimated time for the parade, run or event.

Id. The Sixth Circuit found the factors to be “objective and definitive standards related to traffic control to guide the licensing authority and prevent unfettered discretion.” Id.

Here, Major Gregoire stated in his affidavit that the amount of traffic control “is based only on factors which are completely unrelated to the message to be communicated by marchers” and include the route to be taken, the duration of the route, the estimated number of people who will attend, whether marchers intend to close the entire road or only one direction of travel, and whether there are any other events or special circumstances within the City which could affect traffic. Gregoire Supplemental Aff. ¶ 6.

However, the ordinance, unlike the ordinance in Stonewall, does not explicitly incorporate the objective standards and criteria the Police Chief claims he used when determining .traffic control costs. Sec. 13-5(e)(referring merely to the “costs of traffic control per city collective bargaining agreement and clean up costs, as estimated by the Police Department”). Nor, especially given Major Gregoire’s recent elaboration of the criteria in a supplemental affidavit, are these criteria well-established.

The City asks us to assume the Police Chief will consider only these objective factors when assessing the traffic control fee and he will act in good faith and adhere to standards absent from the ordinance. But this is “the very presumption” the doctrine forbidding unbridled discretion disallows, as “the doctrine requires that the limits the city claims are implicit in its law be made explicit by textual incorporation, binding judicial or administrative construction, or well-established practice.” City of Lakewood, 486 U.S. at 770, 108 S.Ct. 2138 (citations omitted).

Here, since the ordinance is silent; it is not the place of this Court to speak for it. This part of the ordinance is unconstitutional, because the City has failed to demonstrate its calculations are grounded on the text of the ordinance, binding construction, or well established practice. b. Waiver of Thirty-Day Notice Requirement for “Good Cause Shown” Advance notice provisions “drastically burden free speech.” Grossman v. City of Portland, 33 F.3d 1200, 1206 (9th Cir.1994) (citations omitted).

The procedural hurdle of filing permit applications and the temporal hurdle of waiting for permits to be granted discourages potential speakers. Id. The harms of advance notice requirements are particularly pointed in parade registration schemes: “[Timing is of the essence in politics.... [W]hen an event occurs, it is often necessary to have one’s voice heard promptly, if it is to be considered at all.” Shuttlesworth, 394 U.S. at 163, 89 S.Ct. 935 (Harlan, J., concurring).

A delay “of even a day or two” may be of crucial importance when applied to “ ‘political’ speech in which the element of timeliness may be important.” Carroll v. President & Comm’rs of Princess Anne, 393 U.S. 175, 182, 89 S.Ct. 347, 21 L.Ed.2d 325 (1968)(quoting Quantity of Copies of Books v. Kansas, 378 U.S. 205, 224, 84 S.Ct. 1723, 12 L.Ed.2d 809 (1964))(Harlan, J. dissenting). More specifically, in the context of parades, the Ninth Circuit stated: Participatory enthusiasm is vital to their success. The size of a crowd and its enthusiasm for a cause may generate sufficient passion to sway the undecided.

Thus, simple delay may permanently vitiate the expressive content of a demonstration. A spontaneous parade expressing a viewpoint on a topical issue will almost inevitably attract more participants and more press attention, and generate more emotion, than the “same” parade 20 days later. The later parade can never be the same. Where spontaneity is part of the message, dissemination delayed is dissemination denied. City of Richmond, 743 F.2d at 1356. The advance filing requirements that courts have upheld for parades or demonstrations have generally been less than a week. See, e.g., A Quaker Action Group v.

Morton, 516 F.2d 717, 735 (D.C.Cir. 1975)(two-day advance notice requirement is reasonable for use of National Park areas in the District of Columbia for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir.1968)(two-day advance notice requirement for parade is reasonable); Progressive Labor Party v. Lloyd, 487 F.Supp. 1054, 1059 (D.Mass.l980)(three-day advance filing requirement for parade permit approved in context of a broader challenge); Jackson v. Dobbs, 329 F.Supp. 287, 292 (N.D.Ga.1970)(marchers must obtain permit by 4:00 p.m. on day before the march), aff'd, 442 F.2d 928 (5th Cir.1971); Handley v.

City of Montgomery, 401 So.2d 171, 183-84 (Ala.Cr.App.1981)(filing requirements that have the result of requiring applications between four and eleven days before the event, and nine days for the plaintiff, is reasonable given the need for advance planning). In contrast, advance filing requirements for parade permits for longer periods have been held to violate the First Amendment because municipalities have been unable to demonstrate the need for them. See Sauk County v.

Gumz, 2003 WI App 165, ¶ 40, 266 Wis.2d 758, 800, 669 N.W.2d 509, 531 (Wis.App.2003)(providing a similar list of authority and concluding that “there is nothing in the record from which we can conclude that forty-five days is a reasonable time period for processing the application or that sixty days is a reasonable filing requirement”); Americanr-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605-607 (6th Cir.2005)(provision requiring thirty days notice is overbroad and is not saved by an unwritten policy of waiving the provision); Douglas v.

Brownell, 88 F.3d 1511, 1523-24 (8th Cir.1996)(city’s asserted goals of protecting pedestrian and vehicular traffic and minimizing inconvenience to the public does not justify five-day advance filing requirement for any parade, defined as ten or more persons); City of Richmond, 743 F.2d at 1355-57 (twenty-day advance filing requirement for parade permit not supported by evidence; police and traffic concerns can be addressed in a much shorter time period; and research indicated that other municipalities had much shorter time periods); City of Long Beach, 17 Cal.Rptr.2d at 871 (thirty working days); York v.

City of Danville, 207 Va. 665, 152 S.E.2d 259, 263-64 (1967)(no evidence that the requirement that the application for a parade permit be made between thirty and sixty days before the proposed event was necessary to prepare for policing of streets or regulation of traffic). Although the ordinances here provide for a waiver of the thirty-day notice requirement for “good cause shown,” cf City of Dearborn, the Plaintiffs argue there are no articulated standards either in the ordinance or in the City’s established practice for what constitutes good cause. Pis. ’ Mot. at 29.

In its deposition, the City admitted that it had no criteria, written or unwritten, for determining whether to grant a “good cause” waiver of the thirty-day notice requirement. Gregoire Dep. at 68:22-69:12. Specifically, Major Gregoire stated: “I just think it’s too open to discretion as to when you choose and not choose. You’d have to take it on a case-by-case basis because there are — I think the major portion of that would be just on what is needed to do the event for personnel.” Id. at 69:1-5.

In his supplemental affidavit, Major Gregoire firmed up his earlier opinion that “if I could provide the people, I could probably provide the event”, Gregoire Dep. at 69:20-21, by averring, “[a]s long as the Police Department is physically able to contact the officers and make the appropriate arrangements to close the road and have the appropriate traffic officers on duty, the City would not deny the permit based on the timing of the application.” Gregoire Supplemental Aff. ¶ 18.

By failing to provide standards and guidelines for determining good cause, the waiver provisions convey excessive discretion to the Police Chief to exempt or not to exempt certain applicants from the thirty-day notice requirement. The City’s deposition supports the conclusion that the Police Chief has unfettered discretion to grant or deny a waiver. In Major Gre-goire’s Supplemental Affidavit, the City attempts to narrow the construction of the waiver provision to save it from constitutional infirmity by establishing a guideline for determining whether to grant a waiver for good cause.

As before, this Court will not read nonbinding criteria into a statute granting unbridled discretion to determine “good cause”. Accordingly, this part of the ordinance is unconstitutional because it invests overly broad discretion in the licensing authority. 3. Overbreadth The Plaintiffs allege the Parade Ordinance is not narrowly tailored to serve a significant governmental interest — either as applied or on its face. They say that because the ordinance mandates an applicant meet with the Chief of Police and “attempt to agree” on parade logistics, it is not narrowly tailored on its face. Pis.’ Mot. at 32-33.

Also, they claim that because it adds a surcharge for profit when calculating a traffic control fee, the ordinance is overbroad as applied. Pis. ’ Mot. at 34. The Plaintiffs also contend that the lack of any exception or reduction to the permit fee for citizens or groups for whom the fee causes a substantial hardship is not necessary to achieve a legitimate governmental interest and, moreover, leaves those citizens and groups without “open, ample alternatives for communication.” Pis. ’ Mot. at 35-37.

Defendant responds that the ordinance is not overbroad, and serves the substantial governmental interest of public safety and traffic control. Def.’s Resp. at 18. To reiterate, a regulation of the time, place, and manner of protected speech must be narrowly tailored to serve a significant governmental interest and must leave open ample alternative channels for communication. Forsyth, 505 U.S. at 130, 112 S.Ct. 2395. A regulation is narrowly tailored if “the means chosen are not substantially broader than necessary to achieve the government’s interest”.

Ward, 491 U.S. at 800, 109 S.Ct. 2746 (accord Bl(a)ck Tea Soc’y, 378 F.3d at 12). To satisfy this benchmark, a regulation need not be the least restrictive alternative available to the government, but must promote a substantial government interest that would be achieved less effectively absent the regulation. Ward, 491 U.S. at 798-99, 109 S.Ct. 2746. Maintenance of public order is a substantial government interest which may under certain circumstances support regulation of the use of public streets for parades. See Cox, 312 U.S. at 574, 61 S.Ct. 762.

As an initial matter, it is indisputable that the Parade Ordinance restricts access to a public forum. “Public streets are the prototypal example of a public forum.” City of Richmond, 743 F.2d at 1355; see also Hague v. CIO, 307 U.S. 496, 515, 59 S.Ct. 954, 83 L.Ed. 1423 (1939)(“Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions”).

Because the Parade Ordinance restricts access to the streets, it is subject to a particularly high degree of scrutiny. City of Richmond, 743 F.2d at 1355. Public fora cannot be put off limits to First Amendment activity solely to spare public expense, see Schneider v. State, 308 U.S. 147, 162, 60 S.Ct. 146, 84 L.Ed. 155 (1939), nor can laws regulating public fora be held constitutional simply because they leave potential speakers alternative fora for communicating their views. See id. at 163, 60 S.Ct. 146; City of Richmond, 743 F.2d at 1355; Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546, 556, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975). “Public fora have achieved a special status in our law; the government must bear an extraordinarily heavy burden to regulate speech in such locales.” City of Richmond, 743 F.2d at 1355. a.

Meet and Attempt to Agree Provision The Plaintiffs proffer that the Parade Ordinance’s requirement that the applicant must meet with the Police Chief and attempt to agree on parade logistics is not narrowly tailored to serve the significant governmental interests because: (1) requiring an in-person meeting with the Police Chief creates another time barrier to a citizen who is seeking to promote a spontaneous or prompt demonstration in response to a time-sensitive issue or event, especially in the case, as here, where the applicant has already provided specific and detailed information about the requested parade route; and, (2) the details of the route may be an important part of the applicant’s expressive activity and therefore the applicant should not be required to negotiate with the government about the manner of expression.

Pis.’ Mot. at 33-34. It is true that like the advance notice requirement, the in-person meeting provision has the potential to substantially inhibit speech, because one must inform the Police Chief of details about his or her desire to speak. By imposing delay for a meeting with the Police Chief as a condition to permitting a parade, the government inhibits spontaneous expression and thus a certain type of speech.

Most significantly, the in-person meeting requirement invites subjective assessments, and applicants who are uncomfortable dealing directly with the Police Chief may be discouraged from applying for a parade ordinance altogether. Plaintiffs’ example, of an applicant wishing to protest alleged civil rights abuses by police, is well taken. Id. at 33. Although there is a significant governmental interest in preventing parades from obstructing traffic and causing other safety concerns, the in-person meeting requirement chills substantially more speech than is necessary to achieve that end. b.

Surcharge as Part of Traffic Control Fee The Plaintiffs also argue that a fee in excess of the amount paid to the police officers for traffic control is over-broad. Pis.’Mot. at 34. Major Gregoire testified that the City estimates the cost of traffic control before knowing which officers will be available for the overtime needed for a parade traffic control detail; however, he also noted that certain aspects of the process, such as his time to

schedule and organize, are not billed. Gregoire Dep. at 102:25-106:23. The City pays the police officers assigned to the parade a minimum overtime shift of four hours per its collective bargaining agreement. Gregoire Supplemental Affidavit ¶ 8. Major Gregoire admitted the City “may make some profit” on the traffic control charge depending on which officers work and the “actual cost is less than what we bill”. Gregoire Dep. at 98:22-99:3; 166:1-8. The record shows that the City charged Mr. Sullivan $478.55 more than its actual overtime payments. PSMF at ¶ 44; RPSF at ¶ 44.

There is no evidence that the difference is equal to or greater than the cost incurred by the City, as Defendants asserts, for “considerable administrative and overhead time”. RPSF at ¶ 44; E. Conn. Citizens Action Group v. Powers, 723 F.2d 1050, 1056 (2d Cir.1983), questioned on other grounds as stated in Van Arnam v. GSA 332 F.Supp.2d 376 (D.Mass.2004). Ordinarily, a government cannot profit by imposing licensing or permit fees on the exercise of a First Amendment right. Murdock v. Pennsylvania, 319 U.S. 105, 113-14, 63 S.Ct. 870, 87 L.Ed. 1292 (1993); Cox, 312 U.S. at 577, 61 S.Ct. 762.

Only fees that cover the administrative expenses of the permit or license are permissible. E. Conn. Citizens Action Group, 723 F.2d at 1056; Nat'l Awareness Found. v. Abrams, 50 F.3d 1159, 1165 (2d Cir.1995). See also Cox, 312 U.S. at 577, 61 S.Ct. 762 (approving of a fee “limited to the purpose stated” of meeting “the expense incident to the administration of the Act and to the maintenance of public order in the matter licensed”); Northeast Ohio Coal. v.

City of Cleveland, 105 F.3d 1107, 1110 (6th Cir.1997)(“lieense or permit fee... does not violate the Constitution so long as the purpose of charging the fee is limited to defraying expenses incurred... ”). A fee in excess of the amount necessary to offset these costs is impermissible. E. Conn. Citizens Action Group, 723 F.2d at 1056; Moffett v. Killian, 360 F.Supp. 228, 232 (D.Conn.1973)(holding that Connecticut cannot collect a fee in excess of that amount “actually needed” to defray the costs of administering legitimate regulation of First Amendment activity).

In contrast to this Court’s earlier conclusion that “the record establishes that the police fee is simply a mathematical computation based on the Police Chiefs assessment of the police presence necessitated by the parade route”, Sullivan, 310 F.Supp.2d at 354, further discovery has revealed that the computation does not bear a direct or precise relationship to the actual costs incurred. It is, therefore, overbroad. c.

Disparate Impact on the Indigent The Plaintiffs contend the ordinances are unconstitutional on their face and as applied because they do not provide any exception or reduction to the large permit fee for citizens or groups for whom the fee causes a substantial hardship. They argue the lack of a financial exemption burdens more expressive activity than necessary and leaves those citizens and groups unable to pay the fee without “open, ample alternatives for communication.” Pls. ’ Mot. at 35-37. The ordinances do not take into account the ability of the applicant to pay the fee.

Nor does the evidence indicate that the Police Chief, in his or her discretionary capacity of assessing the total permit fee, considers the ability of the applicant to pay such fee. PMSF at ¶ 55. Although the City’s permit schemes provide for a review of a denial of a permit before the City Council, see Sec. 13-5(g), there is no provision that exempts persons, who are unable to pay, from paying the costs for police protection.

The granting of a permit on the basis of the ability of persons to pay an unfixed fee for police protection, without providing for an adequate alternative means of exercising First Amendment rights, is unconstitutional. Murdock, 319 U.S. at 111, 63 S.Ct. 870, 87 L.Ed. 1292 (“Freedom of speech, freedom of press, freedom of religion are available to all, not merely to those who can pay their own way.”).

In Van Am am, a case involving an organization wishing to protest on JFK Plaza in Boston, Judge Woodloek held that, “although Van Arnam is not ‘indigent,’ acceptance of the ex ante financial burden of a $1,000 (or greater) insurance premium, or the more diffuse (but potentially far greater) burden of unlimited personal liability, would be a serious financial burden for her — one that could (and in fact did) completely deter her from speaking on federal property.” 332 F.Supp.2d at 406.

He concluded that the indemnification clause imposed financial demands that burdened the expressive activities of those without sufficient financial means more than necessary to achieve legitimate governmental interests. Id. Other courts have found that indigent persons are denied an equal opportunity to be heard if as a consequence of the added costs of police protection, they are unable to pay the charge for exercising their First Amendment rights. Cent. Florida Nuclear Freeze Campaign v.

Walsh, 774 F.2d 1515, 1523-24 (11th Cir.l985)(holding city ordinance unconstitutional in part because there was no provision exempting indigents from paying the costs for additional police protection); Invisible Empire of the Knights of the Ku Klux Klan v. Town of Thurmont, 700 F.Supp. 281, 286 (D.Md.l988)(requirement of reimbursing town for police protection and cleanup was unconstitutional because it was not “waived or modified for indigents”); Wilson ex rel. U.S. Nationalist Party v. Castle, No. 93-3002, 1993 WL 276959, at *4 (E.D.Pa.

July 15, 1993)(insurance requirement was not narrowly tailored as applied to persons “who are financially and otherwise unable to obtain coverage”); Invisible Empire Knights of the Ku Klux Klan v. City of West Haven, 600 F.Supp. 1427, 1435 (D.Conn.l985)(bond requirement was unconstitutional as applied to those who can demonstrate their inability to obtain a bond). However, some courts have held the' mere absence of an indigency exception is not fatal, particularly if the failure to prepay the additional police charges does not preclude the applicants from engaging in the constitutionally protected activity.

Stonewall Union, 931 F.2d at 1137. In Stonewall Union, the Sixth Circuit concluded an indigency exemption or waiver was not required for a parade ordinance when the sidewalks and parks of the city were available without charge for related speech activities. Id. Likewise, in Sauk County, the court reviewed an ordinance that required a license for large assemblies (over 1,000 people) lasting more than eighteen hours and agreed with Stonewall Union, holding that the plaintiff had ample alternative means of assembling and speaking to express his views.

Sauk County noted that the plaintiff provided it with no “authority that persons are constitutionally entitled to hold a gathering of the size and duration covered by this ordinance if they are unable to pay for reasonable costs associated with the application for a license or the assembly itself, when those charges for the costs are imposed without regard to the content of speech.” 2003 WI App. 165 at ¶ 57, 266 Wis.2d 758, 669 N.W.2d 509. At issue here is whether the sidewalks and parks of a city represent a reasonable alternative to parades.

When evaluating whether there are open, ample alternatives, the First Circuit has reminded us that “the lens of inquiry must focus not on whether a degree of curtailment exists, but on whether the remaining communicative avenues are adequate”. Globe Newspaper Co. v. Beacon Hill Architectural Comm’n., 100 F.3d 175, 193 (1st Cir.1996)(quoting Nat'l. Amusements, 43 F.3d at 745).

Furthermore, “the First Amendment does not guarantee a right to the most cost-effective means of distribution or the rent-free use of public property” and “some diminution in the overall quantity of speech” may be tolerated when evaluating whether or not there are adequate alternatives. Id. at 193-94. The City claims there are several adequate alternatives available to Plaintiffs and others without financial means, including: sidewalk marches, rallies on the State House steps, and mass gatherings. Def.’s Resp. at 5.

This Court has carefully considered Stonewall Union and progeny, but ultimately reaches the opposite conclusion. The Plaintiffs developed a persuasive argument, based on the expert opinions of Joe H. Bandy, III, an Assistant Professor of Sociology at Bowdoin College, underpinning their position that the ordinances do not adequately allow for alternative means of effectively communicating their message. According to Assistant Professor Bandy, there are several reasons a march offers advantages over more stationary forms of expression: (1) a moving march allows demonstrators to bring their pr

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