Sullivan v. City of Augusta
Timothy SULLIVAN and Lawrence E. Dansinger, Plaintiffs, Appellees, v. CITY OF AUGUSTA, Defendant, Appellant
Attorneys
Stephen E.F. Langsdorf with whom Sigmund D. Schütz and Preti, Flaherty, Beli-veau & Pachios, LLP were on brief for appellant., David G. Webbert with whom Johnson & Webbert, LLP was on brief for appel-lees.
Full Opinion (html_with_citations)
Defendant-appellant City of Augusta, Maine (“Augusta” or “the City”) appeals from the judgment entered in favor of plaintiff-appellees Timothy Sullivan and Lawrence E. Dansinger in the United States District Court for the District of Maine. The court found that several provisions of the City’s parade ordinance and of its mass outdoor gathering ordinance (the MOGO) violated the First Amendment.
On appeal, the City challenges the standing of the plaintiffs and the ripeness of their claims, especially their right to protest the MOGO. The City also challenges the district court’s rulings that provisions of both ordinances violate the Federal Constitution. We conclude the plaintiffs did not have standing to sue regarding the MOGO’s alleged defects, hence we vacate all the rulings of the district court regarding the constitutionality of that ordinance’s provisions. We affirm the court’s rulings that the advance notice and in-person meeting requirements of the parade ordinance are constitutionally defective and affirm the district court’s ruling that the $478.55 overcharge to Sullivan was unconstitutional. However, we reverse its rulings that the fee provision grants excessive discretion to the police and that the parade permit fee of $100 and associated charges for police traffic control are unconstitutional insofar as indigents must pay them without being given an opportunity to seek and secure a waiver on account of their indigency.
Background
On February 9, 2004, acting on behalf of a group known as the March for Truth Coalition, which advocates the “worldwide end of war and empire-building” and major social and economic reforms, Sullivan applied to Augusta’s City Police Department
Claiming the assessed estimate of traffic control costs and the bond were unconstitutional burdens on the exercise of his rights under the First Amendment, Sullivan moved on March 15, 2004 in the district court for a temporary restraining order (“TRO”) enjoining the City from imposing these conditions. The same day, Sullivan filed a complaint in the district court challenging the constitutionality of certain provisions not only of the City’s parade ordinance, under which he had sought a permit, but also of the City’s separate MOGO, under which he had not sought a permit. The district court granted the TRO in part, finding that Sullivan had standing to challenge the parade ordinance and enjoining Augusta from enforcing the bond requirement. The court also considered “the requirements of the application fee and costs of retaining law enforcement services” and concluded that “these portions of the ordinance are constitutional as applied.” Sullivan I, 310 F.Supp.2d at 354-55. The City subsequently amended the parade ordinance to delete the bond requirement, but left intact its other provisions. Thereafter, the Coalition paid the required amounts to the City, the parade permit was issued, and the march took place as scheduled on March 20, 2004. Sullivan did not seek, nor is there evidence he ever discussed with the Police, and the City did not request, that he obtain a second permit, under the MOGO, for the March 20, 2004 event.
Sullivan then amended his complaint on September 28, 2004, adding a second plaintiff, Dansinger. Dansinger had applied for a parade permit in August 2004 for a march he wished to hold in October of that same year. After the City Police Department responded to his application with a letter requiring him to pay a fee and costs of almost $2,000, Dansinger responded that he was unable to pay and sought, without response from the City, a waiver of the total amount of fee and costs. No permit was issued, and the proposed October march did not take place.
Discovery followed the filing of the amended complaint, and the parties submitted the case to the district court on a stipulated record and filed cross motions for judgment on liability. A stipulated record “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). Here, the agreed-upon record included depositions of Sullivan, Dansinger, Joe Bandy (the plaintiffs’ expert witness), and Augusta Deputy Police Chief Major Gregoire (“Gregoire”), and affidavits from' Gregoire. Following oral argument, the district court issued a decision holding that the plaintiffs had standing to challenge both ordinances, that their claims were ripe, that various provisions both of the parade ordinance and of the MOGO violated the First Amendment of the Federal Constitution, and that there was no need for the court to abstain from ruling on the challenged ordi
The district court in its decision also found in the City’s favor on plaintiffs’ claim that it was violative of the Federal Constitution for the City to waive the parade permit fee for an event honoring law enforcement sponsored by the Maine Chiefs of Police Association, of which the City is a member. Plaintiffs did not cross-appeal from that unfavorable finding.
Facts
The following facts are taken from the district court’s findings based on the stipulated record. See Sullivan II, 406 F.Supp.2d at 95-99. As noted, Sullivan represented the March for Truth Coalition, which wanted to parade on the streets of Augusta to advocate for a variety of causes, including opposition to the Iraq war. The plaintiffs’ challenges to the parade ordinance and the MOGO addressed several elements of both ordinances.
A. Parade Ordinance Fee
Portions of the Parade Ordinance, § 13-5, provide as follows:
(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 timé 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.
Augusta, Me.Code § 13-5 (1991). “If the permit is denied or modified, the applicant may appeal in writing within five (5) days to the City Clerk’s office for determination by the City Council.” Id. at § 13-5(g).
B. 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 therefor from the Augusta Police Chief or his desig-nee. The application for a permit must*23 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.
Augusta, Me.Code § 3-116 (1991).
Section 3-117 states:
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 therefor unless it appears to the Police Chief within a reasonable certainty that such gathering will unreasonably endanger the public health or public safety.
Id. at § 3-117.
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.
Id. at § 3-118. The permit fee is $100.00, plus the “cost estimated by the City for cleanup and traffic, control.” Id. at § 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.” Id. at § 3-122.
C. Plaintiffs’ Applications
i. Sullivan’s February 9, 2004 Application
Of the three proposed parade routes in Sullivan’s February 2004 parade permit application, Augusta Deputy Police Chief Major Gregoire, the officer delegated responsibility, under the Police Chiefs oversight, to handle Sullivan’s permit application, 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, Gregoire approved a third route, costing, he said, $1,543.08. Sullivan II, 406 F.Supp.2d at 97. To calculate these costs, Gregoire said he 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 testified that he based his assessment of traffic control needs only on factors “completely unrelated to the message to be communicated by marchers.” Sullivan and his March for Truth Coalition did not themselves have the money to pay the permit fee, but they borrowed the necessary funds from another organization. As already noted, the fee was paid, the parade permit was issued, and the march went on as planned on March 20, 2004. At no time did the City intimate that Sullivan or the Coalition needed a second permit, under the MOGO, in order to conduct a lawful march.
ii. Dansinger’s August 23, 2004 Application
On August 23, 2004, Dansinger applied for a parade permit to hold a peace march/rally on October 16, 2004, in con
D. District Court Decision
The district court found that various sections of the City’s parade ordinance and MOGO, on facial challenge, violated the First Amendment of the Federal Constitution. The court determined that Section 13&emdash;5(e) of the parade ordinance providing that the cost of the permit will be $100, plus the costs of traffic control per city collective bargaining agreement and cleanup costs, as estimated by the Police Department, was unconstitutional because it vested too much standardless discretion in the police. The court held unconstitutional Section 13-5(a) of the parade ordinance and Section 3-116(a) of the MOGO to the extent that each requires thirty days’ prior notice of a parade or MOGO application, unless the City Manager allows a shorter time frame for good cause shown. The court also held unconstitutional Section 13-5(c) of the parade ordinance to the extent it requires, as a condition of its issuance, a meeting between the applicant and the police chief within ten days of applying for the permit to discuss and attempt to agree on the details of the route and other logistics of the parade. The court held unconstitutional Section 13-5(e) of the parade ordinance and Section 3-120 of the MOGO to the extent they contain no avenue for indigent permit seekers to obtain waivers of the fees specified therein. The court also held unconstitutional Section 3-122 of the MOGO, which exempts from permit requirements “athletic events” conducted by the Board of Education, Little League or other organizations, provided alcohol is not available.
Finally, the court noted in its opinion that there was no need for it to abstain from deciding these constitutional questions just because the plaintiffs had not appealed from the denial or modification of any of their permit requests to the City Council, as permitted by the parade ordinance.
Discussion
A. Standard of Review
Our review here of the controverted matters is plenary. Legal questions of standing and ripeness are obvious candidates for de novo review, and “where the trial court is called upon to resolve a number of mixed law/fact matters which implicate core First Amendment concerns, the review ... is plenary so that the court may reduce the likelihood of a ‘forbidden intrusion on the field of free expression.’ ”
B. Standing and Ripeness
i. Standing to Challenge MOGO
The City of Augusta argues on appeal, as it did below, that the plaintiffs lacked standing to challenge any part of the MOGO. We agree. For standing to challenge the constitutionality of a particular municipal ordinance such as the parade ordinance or the MOGO, plaintiffs had to show an objectively reasonable possibility that the ordinance would be applied to their own activities. See Osediacz v. City of Cranston, 414 F.3d 136, 143 (1st Cir.2005). In the case of the parade ordinance, under which Sullivan sought and actually received a parade permit and Dansinger sought, but did not obtain, a parade permit, plaintiffs have made a sufficient showing. But we find no similar showing sufficient to establish standing to challenge the MOGO, the City’s mass outdoor gathering ordinance. Plaintiffs did not acquire or seek a MOGO permit. They did not allege, and there was no evidence in the record that anyone connected with the City ever indicated to plaintiffs, that they would be required to obtain a permit under the MOGO as a prerequisite to conducting their proposed street marches, nor was there evidence or even allegations that, in addition to a parade permit, plaintiffs needed, or reasonably believed they needed, a permit under the MOGO in order to conduct such activities in conformity with existing municipal policy and law.
As the district court recognized, the relaxation in First Amendment cases of certain prudential standing - requirements does not mean that plaintiffs can dispense with the need to meet core Article III standing principles. Osediacz, 414 F.3d at 141; see Sec’y of State of Maryland v. Joseph H. Munson Co., 467 U.S. 947, 956-57, 104 S.Ct. 2839, 81 L.Ed.2d 786 (1984) (“[I]n the area of freedom of expression, an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable,” but Munson still must “satis[fy] the requirement of ‘injury-in-fact’ and whether it can be expected satisfactorily to frame the issues in this case [i.e., its case must be ‘ripe’].”).
“Injury-in-fact” has been described by the Court as “an invasion of a legally protected interest which is (a) concrete and particularized ... and (b) ‘actual or imminent, not conjectural or hypothetical.’ ” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992) (citations omitted). Plaintiffs have failed to carry their burden of showing that they have sustained any injury-in-fact on account of the MOGO. Without suffering such an injury, they lack stand
The district court recognized that plaintiffs were required to show injury-in-fact relative to the MOGO, and that to establish such injury in the present circumstances, they must show an objectively reasonable possibility they would need a permit under that ordinance in order to engage lawfully in their intended street marches. See Osediacz, 414 F.3d at 143. The court believed that such a showing had been made here. It construed the language of the MOGO as overlapping with that of the parade ordinance. It believed that marches such as plaintiffs sponsored or proposed, while covered by the parade ordinance, could also be considered to be mass outdoor gatherings if held with the intent to attract or with the understanding that the gathering may attract two hundred (200) or more persons; and that under the language of the MOGO, Augusta might (although it did not) require a separate MOGO permit as well as a parade permit.
In the district court’s view, the undefined phrase in the MOGO, “mass gathering,” could well include a parade. The City might want the sponsor of “a large parade” to furnish the health and safety items specified in the MOGO, i.e., adequate medical facilities, adequate and satisfactory water supply and sewer facilities, and refuse storage and disposal facilities. The court believed that “sewer facilities” could be interpreted to mean portable toilets and that other terms could likewise be read in a way relevant to parades and marches.
The district court believed that the deposition testimony of Deputy Police Chief Major Gregoire, rendered on October 6, 2004, indicated the City’s ambivalence about the MOGO’s role. Asked whether a parade of 3,000 people for a mile down a City street was a mass gathering, Gregoire replied: “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.” In the court’s opinion, this reply was inconsistent with, perhaps even contradictory of, Gregoire’s subsequent affidavit, dated March 15, 2005, in which Gregoire stated positively, “the City interprets the Mass Outdoor Gathering permit to only apply to a gathering which occurs at a fixed location.”
The two, as it believed, inconsistent statements by Gregoire led the district court to conclude, “if Major Gregoire changed his mind once, he could do so again,” and to find that “when plaintiffs applied for their permits, there was a reasonable possibility that the City might interpret the MOGO to apply to their conduct.” The court ruled that “in light of Major Gregoire’s changing testimony and in the absence of a long-standing municipal practice, this Court finds the City of Augusta has not adopted an authoritative interpretation so as to eliminate its application to marches or parades.”
With respect, we do not agree with the district court’s analysis. We do not think plaintiffs have shown a realistic likelihood that, in addition to a parade permit, the City might have required them to receive a MOGO permit for the marching activities reflected in this record. Textually, we do not read the two ordinances as requiring persons like plaintiffs proposing an ordinary street march on the City’s public streets to obtain more than a parade permit. And, if there were any question about this, Gregoire’s affidavit as to the City’s interpretation, uncontradicted by anything shown in the record, and supported by the City’s consistent willingness to allow these plaintiffs to march without requiring more than a parade permit, is
a. Interpretation of the Language of the Ordinances
Looking first at the text of the parade ordinance, it requires a permit thereunder for “an intended parade, march or other use of public ways within the City” — precisely the events the plaintiffs intended and for which they sought, and in Sullivan’s case received, parade permits. Plaintiffs never sought, nor were they advised by anyone to obtain, a MOGO permit, presumably because the parade ordinance alone referred specifically to parades and marches on the City’s public ways, while the MOGO said nothing about moving events of this character. Rather, the MOGO addresses the licensing of what it calls, without further definition, “a mass outdoor gathering with the intent to attract two hundred (200) or more persons.” The MOGO thus addresses an undefined (except for the 200-person benchmark) generic class of mass gatherings without any limits as to type or place. In comparable circumstances— given two ordinances, one specific and the other general — Maine’s courts, like federal and other state courts, have followed the interpretive rule that “specific statutory provisions take precedence over general provisions.” Ziegler v. American Maize-Prod. Co., 658 A.2d 219, 222 (Me.1995) (quoted with approval in Camps Newfound/Owatonna Corp. v. Town of Harrison, 705 A.2d 1109, 1115 (Me.1998)). See also Armstrong v. Town of Cape Elizabeth, 2000 WL 33675379 (Me.Super., Dec.31, 2000) (applying foregoing principle to Cape Elizabeth zoning ordinance). See generally Busic v. United States, 446 U.S. 398, 406, 100 S.Ct. 1747, 64 L.Ed.2d 381 (1980) (“A more specific statute will be given precedence over a more general one.... ”). • Under this interpretive rule, the parade ordinance, which regulates in haec verba the very type of conduct in which plaintiffs intended to engage, i.e., a march on public ways, would seem likely to be construed — as in fact it has been by the City — to take precedence over the more general MOGO, which makes no particular mention of conduct of this sort. It seems unlikely, therefore, that the two ordinances would be construed in pari materia, viz. as both applying equally to plaintiffs’ proposed marches and as calling for dual permits and dual fees,
One can speculate, to be sure, as did the district court, that giant parades or unusually large or lengthy street marches might give rise to public health concerns similar to those upon which the MOGO focuses. Such hypothetical events, indeed, might even require fixed staging areas, in which case the MOGO might become applicable. But there are neither allegations in plaintiffs’ amended complaint nor evidence in
Sullivan’s application for his march on March 20, 2004 stated it was to last only one and a half hours. Little else can be discerned from the record about the actual characteristics of plaintiffs’ marches other than that, in Sullivan’s case, the march occurred and that no suggestion was ever made by anyone that a MOGO permit, in addition to the parade permit, was required. Indeed, plaintiffs’ amended complaint alleges that “Plaintiff [Sullivan] was not required in this instance to obtain a Mass Gathering Permit” and also states, “The only barrier to Sullivan exercising his right to free speech and assembly in the traditional public forum of Augusta’s streets and sidewalks is his inability to pay over $2,000 for police salaries, police squad car use, and event insurance [all items connected with his application for a parade permit at the time he applied].” Dansinger’s march did not occur, but, again, there is nothing whatever in the record to suggest that, in his case, anyone, including the Police Department and Dansinger himself, felt the parade ordinance was by itself insufficient to meet all the City’s and the public’s regulatory requirements. It is worth noting that paragraph (d) of the parade ordinance allows the Police Chief to “impose reasonable conditions including, but not limited to [certain conditions spelled out in the ordinance]” (emphasis supplied). Under paragraph (d), the Police Chief, without recourse to a separate MOGO permit, could presumably condition issuance of a parade permit on provision of specified facilities he thought reasonably necessary to safeguard public health should he believe the circumstances of a particular parade or march so required.
Looking simply at the text of the two ordinances, therefore, we think it far less likely than did the district court that they would ever be read as requiring anything but a parade permit for the marches for which plaintiffs requested permits.
b. The City’s Interpretation of the MOGO in Gregoire’s Affidavit
The City’s own interpretation of the MOGO, as expressed in Gregoire’s affida
Deputy Chief Gregoire, who handled both types of permits for many years, testified to much experience with parades but very few mass gatherings, from which it would appear that the MOGO was not widely employed, and, one might infer, was not employed in duplicate fashion with parades. The fact that Sullivan’s March 20, 2004 march took place with only a parade permit, issued without suggestion from the Police Department that he also needed a MOGO permit (which, like the parade permit, is handled by the Police Department), strongly supports the City’s position, asserted in Gregoire’s affidavit, that it interprets the MOGO to apply only to mass gatherings at fixed locations, not to parades and marches. It is plaintiffs’ burden to establish injury-in-fact as an essential part of their standing&emdash;not the City’s burden to disprove it. See, e.g., FW/PBS v. Dallas, 493 U.S. 215, 231, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (holding that standing must affirmatively appear in the record and it is the burden of the party seeking the exercise of jurisdiction in his favor clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute). See also Lujan, 504 U.S. at 560-61, 112 S.Ct. 2130; Osediacz, 414 F.3d at 139.
Here the evidence the district court saw as indicative of an ambivalent City policy to require a MOGO permit in addition to a parade permit was Gregoire’s early deposition testimony, responding to a question whether a parade of 3,000 people for a mile down the street was a mass gathering. Gregoire’s response was “That’s&emdash;I mean, that’s an interpretation. I don’t know. I would have to review what the ordinance said.” Gregoire then went on to say, in the same response, “They are moving and that type of thing. They could be considered a parade ...” (emphasis supplied). Six months later, the City submitted to the court Gregoire’s affidavit stating unequivocally, “The City interprets the Mass Outdoor Gathering permit to only apply to a gathering which occurs at a fixed location.”
Between Gregoire’s earlier deposition testimony and his later affidavit stating the City’s final position, we see no discrepancy such as to warrant the district court’s finding that he had a “change of mind.” His deposition response came in answer to a question that could easily have caught Gregoire by surprise, about whether an enormous hypothetical 3,000 person parade extending for a mile would be a mass gathering. Gregoire said, in effect, he didn’t know&emdash;he would have to review what the MOGO said. Even so, he then suggested that, “They could be considered a parade.” In the six months that followed, Gregoire had the opportunity to review the issue, to reread the ordinances, and to consult with the Police Chief and other City officials, after which his affidavit was filed stating unequivocally the City’s interpretation of the MOGO. That he consulted with superiors and spoke for the City, not just himself, can be inferred from the fact that in the affidavit he purported, under oath, to speak for the City; it is only reasonable to assume that a ranking officer like Gregoire would not have purported to speak for the City in
As we say, we can see no contradiction between Gregoire’s guarded reply during his earlier deposition and his later affirmative affidavit. The earlier response at most suggests uncertainty. He said nothing directly contrary to what he later represented in his affidavit was the City’s interpretation. That the City interpreted a MOGO permit to apply only to a gathering which occurs at a fixed location fits reasonably within the language of the two ordinances, supra, is consistent with the City’s practices as reflected in this record, and is entitled to be taken as an authoritative representation of the City’s interpretation of its own ordinance. See Forsyth County v. Nationalist Movement, 505 U.S. 123, 131, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992) (“In evaluating respondent’s facial challenge, we must consider the county’s authoritative constructions of the ordinance, including its own implementation and interpretation of it”).
This is not a case where the agency’s interpretation during a lawsuit repudiates its earlier interpretation, suggesting the later-announced interpretation might be a ploy to end the lawsuit and leave the agency free to return subsequently to the very practices that caused the plaintiff to sue. There is absolutely no evidence to suggest that Gregoire’s affidavit of the City’s interpretation constituted a repudiation of or departure from some earlier different practice of the City, nor have plaintiffs so alleged. Compare Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 189, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (observing that defendants’ cessation of challenged practice during course of litigation did not guarantee they would not return to practice after dismissal). The district court criticized the City for not establishing that Gregoire’s assertion of its interpretation reflected “a longstanding municipal practice,” but the City’s treatment of these plaintiffs has from the start been entirely consistent with the interpretation of the MOGO stated in Gre-goire’s affidavit, and plaintiffs, whose burden it is, have produced no evidence of any inconsistency at any time in the City’s treatment of others. We see no reason not to accept the City’s asserted interpretation under these circumstances.
We hold that plaintiffs did not meet their burden of establishing a “reasonable possibility” that, in applying to hold then-street marches along City streets, they were or would be held subject to the MOGO as well. We conclude, therefore, that plaintiffs lack standing to litigate the various issues they raise concerning the alleged defects in the MOGO as distinct from those in the parade ordinance. We vacate the district court’s judgment insofar as it relates to any of the provisions of the MOGO.
Because plaintiffs lack standing to challenge the MOGO, we need not examine the “ripeness” of their MOGO claims. Without standing, plaintiffs’ challenges to the MOGO provisions must be dismissed.
ii. Standing to Challenge the 30-Day Advance Application Requirement in the Parade Ordinance
The City argues that the plaintiffs do not have standing to challenge the provision in the parade ordinance, § 13-5(a), requiring applicants to apply for a permit “no less than 30 days prior to an intended
But, notwithstanding their apparent ability to comply, we believe the plaintiffs have standing to challenge, along with other provisions of the parade ordinance, the constitutionality of the thirty-day advance application provision. While it is true they never applied later than the thirty days before the sought-for permit, a late application is not necessary if injury can otherwise be surmised. Osediacz, 414 F.3d at 143. Sullivan indicated such injury in his deposition testimony that in late March 2004, he was deterred from applying for a permit for an intended April 10, 2004 street march because it was too late for Mm to comply with the thirty-day advance notice requirement.
Because there was a showing of injury sufficient for standing to attack the thirty-day provision, we need also to determine the ripeness of this claim.
Ripeness calls for an evaluation of the fitness of the claim and the hardship to plaintiffs of withholding immediate judicial consideration. Rhode Island Ass’n of Realtors, Inc. v. Whitehouse, 199 F.3d 26, 33 (1st Cir.1999). We have said that when free speech is at issue, concerns over chilling effect call for a relaxation of ripeness requirements. El Dia, Inc. v. Hernandez Colon, 963 F.2d 488, 496 (1st Cir.1992) (stating that a “facial challenge of this sort, implicating First Amendment values, customarily works a relaxation of the ripeness criteria”). The rationale for this relaxation is said to stem from a fear of “irretrievable loss.” Id. Thus, when First Amendment claims are presented, “[r]ea-sonable predictability of enforcement or threats of enforcement, without more, have sometimes been enough to ripen a claim.” New Mexicans for Bill Richardson v. Gonzales, 64 F.3d 1495, 1499 (10th Cir.1995) (quoting Martin Tractor Co. v. Federal Election Comm’n, 627. F.2d 375, 380 (D.C.Cir.), cert. denied, 449 U.S. 954, 101 S.Ct. 360, 66 L.Ed.2d 218 (1980)). The standing and ripeness concerns are intertwined, with the core issue being the reasonable fear of enforcement. Whitehouse, 199 F.3d at 33. Here, Sullivan testified to believing that the requirement to apply for a parade permit thirty days before the event blocked his eligibility to receive a permit for a short-notice street march he wished to hold on April 10, 2004 and that, as a result, he did not apply for a permit and did not hold the march. His concern as to this provision is closely linked to other concerns of and alleged injuries to
C. Parade Ordinance Issues
The district court struck down several provisions in the parade ordinance as unconstitutional, holding them facially to violate the First Amendment of the Constitution. Before considering each of these in turn, we discuss certain generally applicable principles mentioned also by the district court. Sullivan II, 406 F.Supp.2d at 106-07.
The district court properly held that protest street marches such as the ones plaintiffs conduct are forms of assembly and expressive speech protected by the First Amendment. See, e.g., Hurley, 515 U.S. at 568, 115 S.Ct. 2338. That protection is not absolute, however, since the First Amendment rights must be harmonized with the “existence of an organized society maintaining public order without which liberty itself would be lost....” Cox v. State of New Hampshire, 312 U.S. 569, 574, 61 S.Ct. 762, 85 L.Ed. 1049 (1941). The Supreme Court went on to say in Cox that regulating the use of the public streets and restricting the use of highways to promote the public convenience, “cannot be disregarded by the attempted exercise of some civil right which in other circumstances would be entitled to protection.” Id. at 574, 61 S.Ct. 762. The Court thus upheld in Cox a municipality’s right to require marchers to obtain a license and pay a fee (not more than $300, at the time) before parading on public streets. The Court stated that “the question in a particular case is whether ... [the City’s] control is exerted so as not to deny or unwar-rantedly 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.
A notable aspect of the Supreme Court’s analysis in Cox, as the district court observed, is that a municipality’s parade permit ordinance is not to be reviewed as a “prior restraint” but as a reasonable regulation of the “time, place and manner in relation to the other proper uses of the streets.” Cox, 312 U.S. at 576, 61 S.Ct. 762. The Supreme Court has recently reiterated this standard in regard to a municipality’s content-neutral regulation of parades and other public assemblies in its parks. See Thomas v. Chicago Park District, 534 U.S. 316, 322-23, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002).
Augusta’s instant parade ordinance is plainly content-neutral, as the district court found.
We turn now to the constitutionality of the different parade ordinance provisions.
i. Traffic Control Fee
Plaintiffs contend, as the district court held, that even under the intermediate scrutiny afforded content-neutral time-place-manner regulations, the fee provision of the parade ordinance is unconstitutional. Section 13-5(e) provides, “The cost of the permit shall be one hundred dollars ($100), plus the costs of traffic control per city collective bargaining agreement and clean up costs, as estimated by the Police Department.” The ordinance further provides, “The permit fee will not include the cost of police protection for public safety.” The $100 fee is payable at the time the application is submitted and the balance at the time the permit is issued.
The district court held that the fee provision delegated overly broad discretion to the Augusta Police Department to determine the costs of traffic control — costs which plaintiffs were required to pay as a part of the total parade permit fee. Citing Forsyth, 505 U.S. at 132-34, 112 S.Ct. 2395, the court ruled that the fee provisions of the parade ordinance were lacking in narrow, objective and definite standards
The district court refused to consider as supplementing the ordinance’s own standards an affidavit from Deputy Chief Major Gregoire in which he stated certain of the factors on which he based his calculation of the traffic control fee. Id. at 1 lb-17. The district court ruled that the factors set forth in Gregoire’s affidavit went beyond anything found in the text of the ordinance itself and were not shown to reflect the City’s “well-established practice,” citing City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750, 770, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988). Id. at 117.
The district court also found that “the City charged Mr. Sullivan $478.55 more than its actual overtime payments” to the officers who served on the detail assigned to Sullivan’s March 20, 2004 parade. This overcharge resulted from the fact that the City estimated how many officers would be needed for traffic control, and what they would be paid, before it knew which particular officers would be available for the parade detail. Id. at 121-22. The City’s collective bargaining agreement requires paying each officer for a minimum overtime shift of four hours, but the pay rate of individual officers differs. In the present case, the original estimate exceeded by $478.55 the cost of paying the officers who took part in the March 20, 2004 parade detail. Sullivan paid the original estimate, and no refund was tendered. The district court rejected the City’s argument that the pay overcharge was offset by the City’s not charging Sullivan for certain of its administrative expenses, such as Gre-goire’s own time to schedule and organize the parade detail. There was no evidence in the record as to the latter costs. Pointing to precedent that only a fee defraying actual expenses is permissible, and that excess fees are unconstitutional, the district court held that the fee was “over-broad” as it “does not bear a direct or precise relationship to the actual costs incurred.” Id. at 122.
Plaintiffs complained below, as they do now, that the 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 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.” They argue this “broad subjectivity and discretion” was highlighted 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.” They additionally argue that the provision’s excessive discretion and over-breadth are demonstrated by the fact the City overcharged them for the actual cost of the additional officers during the March 2004 parade organized by Sullivan.
a. Excessive Discretion
We disagree with the district court and appellees that the parade ordinance fee provisions lack sufficiently precise and definite standards to guide the police. We agree, however, that the permit fee charged to and paid for by Sullivan for the March 20, 2004 parade, which the court found was incorrectly inflated by nearly $500, was, to that extent, unconstitutional as applied.
In deciding that the fee provision in the parade ordinance granted constitutionally “excessive” or “unfettered” discre
While Forsyth stands as a clear warning against vesting governmental officials with excessive discretion in regard to fee-setting,
The fee-setting authority of the Augusta Police Department is far more confined here. The ordinance provides, “The costs of the permit shall be one hundred dollars ($100) plus the costs of traffic control per city collective bargaining agreement and clean-up” (emphasis supplied). The Police are given no discretionary authority to estimate and charge costs other than the costs of traffic control and clean-up, nor are they authorized to vary the character of the costs as between applicants: the cost of each permit “shall be” as described, resulting in a uniformly-computed fee for each applicant. The cost of hiring police officers for traffic control is “per city collective bargaining agreement,” requiring reference to that agreement for the amount to be paid to each officer. Finally,
Given the above limitations, the principal area left to police discretion in estimating the Augusta permit costs lies in determining the number of extra officers and police vehicles to assign to a particular parade or march for traffic control purposes. Plaintiffs complain the City has failed to articulate a precise “formula” to guide the police in performing this estimate. However, the plaintiffs have pointed to no evidence that there exists any meaningful advance “formula” that could be inserted in an ordinance to determine the number of needed officers and vehicles in a given case. Parades and marches obviously vary enormously in terms of size, timing, duration and location, resulting often in quite different traffic control needs. Experienced, professional judgment would seem to be the most likely way to estimate how many extra officers will be needed. The City states that the present marches involved the use of very heavily trafficked streets, requiring diversion of traffic elsewhere during the event. It is hard to see any purely mechanical means for determining how many officers would be needed to direct traffic at the various intersections of differing routes and neighborhoods.
In any case, plaintiffs have offered no example of the sort of “formula” they have in mind. In the circumstances, it seems reasonable for the City to rely upon the experienced judgment of its Police Department to determine personnel and police vehicular needs for traffic control at a particular applicant’s parade or march. We take judicial notice that traffic control is a major responsibility of local police departments around the nation. Rerouting and directing traffic around construction sites, accident scenes and the like are tasks the police regularly perform. The police, moreover, know the traffic patterns and problems along the different streets in their particular city and its neighborhoods. Augusta could reasonably believe that its Police Chief and his staff had the expertise to estimate, case by case, the additional personnel and equipment needs for a traffic control detail established to handle traffic problems caused by a march on city streets. And once these needs are ascertained, the City’s collective bargaining agreement provides objective pay information for determining overall costs.
In ruling that the ordinance provided insufficient standards, the district court refused to take into account Gregoire’s affidavit that in determining the detail needed for plaintiffs’ marches, he was guided by certain implementing criteria— criteria not unlike those a police officer said he considered for similar purposes in Stonewall Union v. City of Columbus, 931 F.2d 1130, 1135 (6th Cir.1991). Speaking about the costs charged to plaintiffs, Gre-goire stated that the size of the traffic control detail “is based only on factors which are completely unrelated to the message to be communicated by marchers” and includes 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.
We need not decide if Gregoire’s affidavit should have been given weight here. Regardless, it is difficult to see that his stated criteria added much of constitutional import to what can be gleaned from the terms of the ordinance itself. See supra. An ordinance of this type must furnish
The parade ordinance directed the Police Department to calculate the costs of traffic control and clean up relative to the particular event for which a permit was sought. The making of a relevant professional judgment of this kind may properly be delegated to police and other officials. See Kinton, 284 F.3d at 26 (noting that “[pjublic safety and convenience are para-digmatically permissible considerations in the issuance of permits” and judgments about public safety are inherently within the competence of permitting officials). The factors Gregoire listed in his affidavit for determining the size of the Traffic control detail — the parade route, its duration, the estimated number of people who will attend, whether entire or partial road closure is involved, and whether there are other events or special circumstances affecting traffic — added few if any considerations that would not seem perfectly obvious to anyone asked to determine traffic control costs relative to a particular parade or march on city streets. And, as previously noted, the ordinance itself rules out charges that might be said to relate to the message “to be communicated by the marchers” by excluding altogether from the permit fee “the cost of police protection for public safety.”
To be sure, the ordinance is terse; more extended glosses provided by written standing orders and the like might arguably be helpful in some way. But we believe the parade ordinance’s fee provision affords, by itself, sufficient “narrowly drawn, reasonable and definite standards” so that the fee-setting decision is not left “to the whim of the administrator.” Thomas, 534 U.S. at 324, 122 S.Ct. 775 (quotation omitted). Our duty is not to determine whether the ordinance meets ideal standards but whether it passes the constitutional threshold.
Plaintiffs, in addition to challenging the wording of the ordinance on its face for alleged absence of fee-setting standards, challenged the fee charged to Sullivan as being constitutionally excessive as applied. The district court agreed. Here, we believe, both appellants and the court are on firm ground. The district court found that Augusta charged Sullivan $478.55 more than the City’s actual overtime payments to its officers for the March 20, 2004 march. The City’s defense on appeal (apart from arguing the overcharge was so small as to be de minimis) is that it was offset by other expenses not charged plaintiffs by the City, such as the cost of Gregoire’s time in processing Sullivan’s permit application. The City, however, never purported to include this latter type of expenses in its calculation of traffic control costs. There is, moreover, no evidence to show what such other costs were. We agree with the district court that it was too late in the day for these supposed costs to be plugged into the present fee equation. A mistaken calculation of nearly $500 cannot in this context be considered de minimis. Sullivan’s overcharge was contrary to the ordinance’s language limiting the fee to $100 “plus the costs of traffic control per city collective bargaining agreement and clean up” (emphasis supplied).
It is a violation of the First Amendment to have charged Sullivan more than the actual administrative expenses of the license, as set forth in the ordinance. Thus, although we find the standards for the permit fee to be sufficiently definite to pass constitutional muster, we uphold the district court’s invalidation, as applied, of the excessive amount charged to Sullivan.
b. Thirty-Day Notice Requirement
The plaintiffs argued successfully below that the parade ordinance’s requirement that applicants apply for a permit “[n]o less than thirty (30) days prior to an intended parade, march or other use of public ways within the City,” coupled with authorization to the City Manager to “allow a shorter time frame for good cause shown” is not narrowly tailored and vests too broad discretion in City officials. We agree.
Notice periods restrict spontaneous free expression and assembly rights safeguarded in the First Amendment. People may, in some cases, wish to engage in street marches in quick response to topical events. While even in such time-sensitive situations, a municipality may require some short period of advance notice so as to allow it time to take measures to provide for necessary traffic control and other aspects of public safety, the period can be no longer than necessary to meet the City’s urgent and essential needs of this type. Americanr-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 605 (6th Cir.2005) (“Any notice period is a substantial inhibition on speech.”). Advance notice requirements that have been upheld by courts have most generally been of 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 District of Columbia for public gatherings); Powe v. Miles, 407 F.2d 73, 84 (2d Cir.1968) (two-day advance notice requirement for
The City argues that its interest in having advance notice of a parade in order to control traffic, prevent scheduling conflicts, ensure adequate facilities are available, and assign personnel to safely close the streets is narrowly tailored. The City points out that its police force is relatively small, with only thirty-four officers available for assignment to parade details.
But while those factors are entitled to due weight, applicants’ First Amendment rights have countervailing strength, and these require the City in time sensitive situations to accommodate proposed parades and marches much more, quickly than within thirty days. See Church of the American Knights of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 682 (7th Cir.2003) (noting “the reasonableness in general of requiring that a permit to hold a demonstration on city streets or other public property be sought in advance of the event,” but observing that “the length of the required period of advance notice is critical to its reasonableness; and given ... that political demonstrations are often engendered by topical events, a very long period of advance notice with no. exception for spontaneous demonstrations unreasonably limits free speech” (emphasis supplied)). Hence, while practical considerations, such as the scheduling of additional needed officers, will justify a short period of advance notice, a blanket rule requiring the permit application to be made in all cases no fewer than thirty days prior to an intended parade, march, or other, use of public ways is not narrowly tailored and so violates the First Amendment.
While the above is clear, the City contends that its thirty-day rule is not blanket and that it has made a sufficient exception for the kind of spontaneous demonstrations mentioned above, as “[t]he City Manager may allow a shorter time frame for good cause shown” (emphasis supplied). The district court and plaintiffs, however, insist that the “good cause” standard is too vague and subjective to serve as a sufficient guide to the City Manager’s discretion, and that the exception is, therefore,
We think the exception does not save the unduly lengthy application period. If the “good cause” exception were attached to a reasonably short application period, we might rule otherwise. But as a device to cure a standard requirement of some thirty days, it is inadequate, requiring, as it does, that all persons desiring to seek a parade permit within some entitled shorter period shoulder the burden of convincing the City Manager of the existence of “good cause.” Such a requirement curtails an applicant’s free speech rights, both because of the additional effort the applicant need make in order to claim those rights and the risk that the City Manager may not realize from the phrase “good cause” that many applicants will be entitled, routinely, to a shortening of the period.
It is true that Gregoire, in a supplemental affidavit, stated, “[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.” But the district court supportably ruled that Gre-goire’s supplemental statement is not shown to constitute a binding administrative interpretation or evince well-established practice.
We affirm the district court’s conclusion that the present thirty-day time period, as drafted, is unconstitutional for the reasons we have stated.
c. Meet and Attempt to Agree Provision
The plaintiffs argued below that the parade ordinance’s requirement that “[w]ithin 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,” is not narrowly tailored to serve significant governmental interests because (1) forcing an in-person meeting with the police chief within ten days from applying for the permit creates an unreasonable time barrier that burdens unnecessarily a citizen seeking to promote a spontaneous or prompt demonstration in response to a time-sensitive issue or event; and (2) the details of the route may be an important part of the applicant’s expressive activity and thus the applicant should not be required to negotiate with the government about the manner of expression. Plaintiffs also argued that applicants who are uncomfortable dealing directly with the police chief, such as an applicant wishing to protest alleged civil rights abuses by police, might be discouraged from applying for a parade ordinance altogether. The district court concluded that “the in-person meeting requirement chills substantially more speech than is necessary to achieve the end [of promoting public health and safety].”
The City argues on appeal that while the district court agreed there is a significant governmental interest in gathering information on parade logistics, it erroneously applied a least intrusive means analysis consistent with strict scrutiny, rather than the more relaxed narrow tailoring analysis appropriate in intermediate scrutiny. Ward, 491 U.S. at 797-98, 109 S.Ct. 2746.
The City further contends that the most effective way to arrange a parade route
While the question is close, we believe the provision is overbroad in certain respects, especially given its unyielding language (the applicant “must meet with the Police Chief’ and do so “as a condition to [the permit’s] issuance”&emdash;the latter seeming to rule out the police department’s alleged policy of not always requiring a face-to-face meeting). We agree with the City, however, that meeting face-to-face with the Police Chief is not an unreasonable way in most instances to work out a route, and that this requirement, as a general rule, is constitutionally acceptable, provided provision is made for reasonable exceptions. For one, it would seem necessary to allow for meeting with the Chiefs delegate in case the chief is unavailable. For another, it may be unduly burdensome for a parade organizer who lives, or whose work takes him, some distance away from the City, to sit down with the Chief or his delegate. And there is the possibility that some activist leaders may experience the kind of acute discomfort that plaintiffs hypothesize at sitting down with the Chief because of the nature of their cause. All of these concerns, to a greater or lesser degree, suggest that in this age of e-mail, express mail, fax and telephone, requiring, inflexibly, meeting with the Chief in person within the specified ten-day period as a mandatory condition of issuance of the permit burdens substantially more speech than is necessary. Ward, 491 U.S. at 799, 109 S.Ct. 2746.
The City can address the problem in various ways. One way, of course, is simply to provide some acceptable alternatives to meeting with the Chief. Another would be to provide that an applicant may, if good cause existed, request an alternative, and the Chief or his delegate should allow the request if reasonable and practicable to do so. To take the above concerns into account is not equivalent to applying the inappropriate least-restrictive means test, see Ward, 491 U.S. at 797-98, 109 S.Ct. 2746, but rather applies the principle that a regulation of this type may not burden substantially more speech than is necessary to further the government’s legitimate interests. Ward, 491 U.S. at 799, 109 S.Ct. 2746. Hence, one or more alternatives to a face-to-face meeting with the Chief need to be provided. Lacking such alternative or alternatives, the meeting provision as it currently stands is over-broad.
d. Absence of Waiver of Fees for Indigent
The plaintiffs argued below that the parade ordinance is unconstitutional on its face and as applied because it does not provide any exception or reduction to the potentially large permit fee for citizens or groups for whom the fee causes a substantial hardship. They argued successfully to the district court that the lack of a financial exemption leaves those citizens and groups unable to pay the fee without “open, ample alternatives for communication.” Where, as here, however, there are ample alternative forums for speech, we see insufficient justification for the district court’s ruling that the Constitution mandates an indigency exception, in effect
i. District Court’s Analysis
The district court relied on the Supreme Court’s assertion in Murdock, 319 U.S. at 111, 63 S.Ct. 870, that “[fjreedom of speech, freedom of press, freedom of religion are available to all, not merely to those who can pay their own way.” The district court observed that in cases where bonds and insurance premiums are required for a parade permit, courts have found that the requirements imposed financial demands that burdened the expressive activities of those with insufficient financial means more than necessary to achieve the governmental interest. The district court asked whether the sidewalks and parks of a city represent a reasonable alternative to the streets and concluded, based on the testimony of a sociologist called as an expert witness by the plaintiffs, that sidewalks have less symbolic significance than do streets and are inadequate as alternatives for logistical reasons.
Plaintiffs’ expert witness was an assistant professor of sociology at Bowdoin College, who testified that sidewalks were not a satisfactory alternative location for parades. He testified, inter alia, that street marches attract more attention as they are more likely to inconvenience the general public by interrupting traffic and disrupting routines. He further testified that street marches also have positive connotations because of the American tradition of successful protest marches, such as the 1963 March on Washington. By contrast, he thought, sidewalk marches have less symbolic significance and provide logistical challenges because sidewalks are narrower and prevent the carrying of large banners.
The district court also expressed concern that Augusta’s parade ordinance arguably requires the securing of permits for sidewalk marches as well as for street marches, despite the City’s insistence that permits were not needed for sidewalk marches. The language of the ordinance refers to the “use of public ways within the city,” which could, the district court said, easily be construed to include sidewalks.
ii. Analysis
We disagree with the district court’s conclusion, and that of our dissenting colleague, Judge Lipez, that sidewalk marches and other alternatives to street marches are so lacking as to necessitate an indigency exception to the parade permit fee. We also find no reason to reject the City’s insistence that sidewalk parades do not require permits under Augusta’s parade ordinance. In a case not unlike the present, the Sixth Circuit similarly concluded that an indigency exemption or waiver was not required for a parade ordinance where, as here, the sidewalks and parks of the city were available without charge for related speech activities. Stonewall, 931 F.2d at 1137. The Sixth Circuit stated, “Because we believe the availability of the sidewalks and parks provides a constitutionally acceptable alternative for indigent paraders, we find that the lack of an indigency exception does not render the ordinance constitutionally invalid.” Id. We agree with that analysis and find the situation in Augusta analogous. Plaintiffs have cited several circuit and district court cases in support of their contrary position, but these, of course, are not binding upon us and are, moreover, largely distinguishable.
Augusta argues that it provides numerous alternative avenues of communication to persons unable to afford a parade permit, including (a) use of sidewalks, (b) gatherings on state land such as the statehouse steps (Augusta is the state capital), (c) hand-held banners or signs, (d) leafleting, (e) vehicular processions, and (f) mass outdoor gatherings of fewer than 200 people. None of these alternatives requires payment of a fee, and only one — a rally on the state house steps — -requires a permit, which is freely obtained.
Although the district court acknowledged the alternatives offered by the City, it believed the sidewalks — an alternative especially emphasized — were insufficient because they are too narrow and marginal as compared with main streets, thereby perhaps dampening the number of protestors able to march and the amount of attention attracted. But while a sidewalk march might, for these and other reasons, seem less appealing to some protestors than a street march, it nonetheless provides a prominent route along major thoroughfares for dissemination of a message. As Gregoire stated in his affidavit, several groups have used sidewalk marches to engage in expressive activities, indicating the availability of the sidewalk alternative and its appeal to some persons.
This Circuit has upheld in other contexts alternative means of communication despite diminution in the quantity of speech, a ban on a preferred method of communication, and a reduction in the potential audience. Globe Newspaper Co. v. Beacon Hill Architectural Comm’n, 100 F.3d 175, 192-94 (1st Cir.1996) (holding that a ban on newspaper boxes in historic district met the intermediate scrutiny test in that it was narrowly tailored and newspapers had ample alternative channels of communication in the same area); see also D.H.L. Assocs., Inc. v. O’Gorman, 199 F.3d 50, 59 (1st Cir.1999) (“The essence of this question is not ‘whether a degree of curtailment’ of speech exists, but rather ‘whether the remaining communicative avenues are adequate.’”) (quoting Nat’l Amusements, 43 F.3d 731, 745 (1st Cir.1995)). In upholding a ban on newspaper boxes in the historic Beacon Hill neighborhood of Boston, we concluded, “The First Amendment does not guarantee a right to the most cost-effective means of distribution or the rent-free use of public property.” Globe Newspaper Co., 100 F.3d at 193.
The plaintiffs have access to numerous speech alternatives, making a fee waiver to march in the streets unnecessary. Before ending the inquiry, however, we address the district court’s reference to the possibility that sidewalks might themselves be subject to a parade permit requirement.
2. Free Availability of Sidewalks
The district court’s conclusion that sidewalk marches “at least arguably” may be subject to permitting (and thus subject to attendant fees) is not unreasonable based simply on the language of the ordinance, but it contradicts the overwhelming evidence in the record that Augusta does not interpret, and has not interpreted, its own parade ordinance in this manner. Gre-goire testified in his March 2004 affidavit that sidewalk marches are free and require no permit. In his 2005 supplemental affidavit, he said he had informed Sullivan of that fact in anticipation of the planned March 2004 protest and offered to assist his group with a free sidewalk march prior to the start of the instant litigation. Though certain other of Gregoire’s proffers of limiting constructions regarding other provisions of the parade ordinance, supra, came too late or were too vague to be considered authoritative interpretations, his interpretation of the sidewalk marches is one apparently followed by the City from before the litigation. Gregoire’s supplemental affidavit in 2005 listed seven permit-fee and fee-free sidewalk marches which had taken place in the previous year, indicating a well-established practice of allowing sidewalk marches without requiring a permit or a fee. We accordingly
It is obviously not simple to select out those people and causes whose indigency is such as to warrant giving them, as it were, a free pass. Such provisions for indigency exceptions do exist in the ordinances of some cities, e.g., Pittsburgh, Minneapolis, and Los Angeles. Whether a particular city, like Augusta, wishes to enact and deal with the administration of such an exception is up to it and its government. Our conclusion is simply that there are sufficient alternatives for speech as not to require, constitutionally, that Augusta provide an indigency exception here.
In all events, the Supreme Court has addressed the question of parade permit fees in some detail in Forsyth. It has not suggested that an indigency exception is constitutionally required. If one is to be created under the aegis of the First Amendment, surely that is for the Supreme Court to decide in the first instance. There is a vast number of areas in which a lack of funds may disadvantage an individual, and a constitutional determination that in civil matters an indigent need not pay costs ordinarily imposed on others is a matter to be approached with some caution.
e. Abstention and Saving Constructions
The district court observed that it did not take lightly its conclusion that the ordinances at issue here are unconstitutional. It dismissed the possibility of abstention or certification to the state court, however, because the resolution is not “fairly subject to an interpretation which will render unnecessary or substantially modify the federal constitutional question.” Bd of Airport Comm’rs v. Jews for Jesus, Inc., 482 U.S. 569, 575-76, 107 S.Ct. 2568, 96 L.Ed.2d 500 (1987). A district court’s abstention ruling is reviewed on appeal for abuse of discretion. Sheerbonnet, Ltd. v. American Express Bank, 17 F.3d 46, 48 (2d Cir.1994). The court did not abuse its discretion here in declining to abstain or certify any of the issues to the state court.
D. Conclusion
We affirm the district court’s determination that sections 13-5(a), to the extent that it requires thirty days’ advance notice, and 13-5(c), to the extent that it requires a permit applicant to meet with the Police Chief, are unconstitutional; and reverse the district court’s invalidation (for grant of excessive discretion) of 13-5(e), the fee provision. We affirm, however, the district court’s holding that the $478.55 fee overcharge to Sullivan was unconstitutional. We reverse the district court’s determination that plaintiffs had standing to challenge the MOGO and that the absence of an indigency requirement in section 13-5(e) is unconstitutional. We vacate the district court’s rulings that provisions of the MOGO are unconstitutional. Each side shall bear its own costs.
. We find no merit in plaintiffs’ contention that plenary review is reserved only for district court decisions denying First Amendment challenges, while decisions (as here) providing support for First Amendment claims are entitled only to more restricted review.
. We note, in addition, the total absence of allegations in the amended complaint, or facts in the stipulated record, indicating that the MOGO has in any way chilled or affected plaintiffs’ conduct. See infra.
. We would add that the language used to describe the MOGO's requirements, while conceivably able to be stretched to large parades, seems far more apt to fixed locations. "[A]dequate and satisfactory water supply and sewer facilities” could conceivably extend to portable toilets, as the court said, but it is questionable if someone having portable toilets in mind would have described them in that way. At the very least, if the MOGO was meant to regulate the parades and marches already regulated by the parade ordinance, it would seem likely that one of the ordinances would have cross-referenced the other.
. The City contends that for it to have read the two ordinances as requiring duplicative permits would also have violated the rule that statutes should be read so as to avoid constitutional difficulties. Frisby v. Schultz, 487 U.S. 474, 483, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988). To require two permits for one street march would increase the burdens on those seeking permission to march and would arguably, by that fact alone, further chill their free speech rights. Additionally, the MOGO requirements would be open to challenge under the First Amendment as to whether or not the additional burdens they placed upon plaintiffs' First Amendment rights were excessive. Without passing on the validity of such contentions, we note the obvious fact that an interpretation that each of the two ordinances applied to plaintiffs would increase the scale of possible constitutional difficulties, while an interpretation that only the parade ordinance applies avoids many such difficulties.
. The thirty-day provision, to be sure, is qualified by authorization to the City Manager to "allow a shorter time frame for-good cause shown.” But because we find that essentially standardless provision to be insufficient to redeem the thirty-day requirement, infra, we believe that Sullivan's complained-of deterrence suffices to establish injuiy, especially where there is no question as to plaintiffs’ standing to challenge, on First Amendment grounds, other aspects of the very same ordinance.
. In Ward v. Rock Against Racism, 491 U.S. 781, 791, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989), 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." The main inquiry 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 v. Colorado, 530 U.S. 703, 719-20, 120 S.Ct. 2480, 147 L.Ed.2d 597 (2000).
. While acknowledging that the parade ordinance is content-neutral on its face, the plaintiffs have argued to us that Augusta applied the ordinance in a viewpoint-discriminatory manner by waiving the parade permit fee for the Maine Chiefs of Police Association’s annual parade. The district court disagreed. It found that the City's waiver of the fee did not
Although plaintiffs now argue against the district court’s resolution of this issue, they have never filed a cross-appeal from the district court’s determination that the waiver of fee for the Maine Chiefs of Police Association’s annual parade is constitutionally permissible. We therefore lack jurisdiction to consider plaintiffs’ objections to the district court’s specific ruling on this issue. See United States v. Craven, 239 F.3d 91, 103 (1st Cir.2001); Justice for All v. Faulkner, 410 F.3d 760, 772 (5th Cir.2005). Cf. Johnson v. Teamsters Local 559, 102 F.3d 21, 28 (1st Cir.1996) (dismissing late-filed cross-appeal for lack of appellate jurisdiction). To the extent plaintiffs pursue this claim on appeal on the ground that we may affirm the district court’s judgment invalidating the fee provision on any basis supported by the record, we concur with the district court that the waiver of the permit fee did not constitute viewpoint discrimination.
. Justice Kennedy, writing for the majority in Ward, emphasized that while narrow tailoring in the content-neutral context was more relaxed, the regulation may not “burden substantially more speech than is necessary to further the government’s legitimate interests. Government may not regulate expression in such a manner that a substantial portion of the burden on speech does not serve to advance its goals.” Ward, 491 U.S. at 799, 109 S.Ct. 2746.
. The Court emphasized the total absence of "articulated standards either in the ordinance or in the county’s established practice,” to guide the administrator's fee-setting discretion. "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.” 505 U.S. at 133, 112 S.Ct. 2395.
. Forsyth involved a content-based, not content-neutral, ordinance, but the analysis of overly broad discretion as discussed in For-syth has also been applied in cases involving content-neutral ordinances. See Thomas, 534 U.S. at 323, 122 S.Ct. 775.
.Citing Forsyth and Niemoto v. Maryland, 340 U.S. 268, 271, 71 S.Ct. 328, 95 L.Ed. 280 (1951), the Thomas Court stated, "We have thus required that a time, place and manner regulation contain adequate standards to guide the official's decision and render it subject to effective judicial review.” 534 U.S. at 323, 122 S.Ct. 775.
. One way to guard against, or at least correct, a future overcharge of this sort would be
. Citing Thomas v. Chicago Park Dist., 534 U.S. 316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), the City points out that the Court upheld a Chicago ordinance allowing a total of up to 28 days for the Park District to grant or deny a permit application. However, the facts are not comparable to the present case, and the question of whether that time period was too lengthy does not appear to have been directly at issue in Thomas, id. at 323-34, 122 S.Ct. 775.
. Nothing herein, of course, prevents the City from merely urging, as opposed to requiring, the submission of permit applications, when possible, within some longer ad-vanee period like thirty days, so long as it is clear that an applicant is bound only by a shorter period, as discussed.
. The district court cited Cent. Florida Nuclear Freeze Campaign v. Walsh, 774 F.2d 1515, 1523-24 (11th Cir.1985), which held a city ordinance unconstitutional in part because there was no provision exempting indigents from paying the cost for police protec