No. 00-1249 

In the Supreme Court of the United States 

CAREN CRONK THOMAS AND WINDY CITY HEMP 
DEVELOPMENT BOARD, PETITIONERS 

v. 

CHICAGO PARK DISTRICT 

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENT 

WILLIAM G. MYERS III 

Solicitor 
RANDOLPH J. MYERS 

Senior Attorney 
Department of the Interior 
Washington, D.C. 20240 
JAMES MICHAEL KELLY 

Acting General Counsel 
Department of Agriculture 
Washington, D.C. 20250 
THEODORE B. OLSON 
Solicitor General 

Counsel of Record 
STUART E. SCHIFFER 

Acting Assistant Attorney 

General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
JAMES A. FELDMAN 

Assistant to the Solicitor 

General 
SCOTT R. MCINTOSH 
STEPHANIE R. MARCUS 

Attorneys 
Department of Justice 
Washington, D.C. 20530-0001 
(202) 514–2217 

QUESTIONS PRESENTED 

A Chicago Park District ordinance requires a person to 
obtain a permit before conducting “events involving more 
than fifty individuals” in a municipal park. The ordinance 
specifies the grounds on which a permit application may be 
denied, none of which is based on the content of any expres- 
sion that may be involved in the event. The questions 
presented are: 

1. Whether the ordinance vests the permit-granting 
authority with too much discretion to satisfy First Amend- 
ment standards. 

2. Whether, in order to satisfy the First Amendment, the 
ordinance must ensure that final judicial decision on the 
merits of an applicant’s challenge to the denial of a permit 
will be rendered within a fixed deadline. 

3. Whether, in order to satisfy the First Amendment, the 
ordinance must require the Park District to initiate a judicial 
proceeding to give effect to the administrative denial of a 
permit application, or whether instead it is sufficient that the 
applicant seek judicial review of the administrative permit 
denial. 

(I) 

TABLE OF CONTENTS 

Page 

Interest of the United States ...................................................... 
1 

Statement ........................................................................................ 2 

Summary of argument .................................................................. 

7 

Argument: 

I. The court of appeals properly entertained peti- 
tioners’ facial challenge to the Park District 

ordinance .......................................................................... 10 

II. The Park District ordinance does not vest 
administrative officials with unconstitutional 

licensing discretion ......................................................... 
12 

A. The Park District ordinance is not the kind of 
content-based “prior restraint” that is pre- 
sumptively unconstitutional .................................. 
12 

B. The Park District ordinance contains reason- 
ably definite, content-neutral standards for 

the denial of a permit .............................................. 

14 

III. A content-neutral permit ordinance need not 
provide a strict deadline for judicial decision 

on the merits of a permit denial or require the 
government to bear the burden of seeking judicial 
review to effect the denial of a permit ........................ 

20 

A. The procedures required in Freedman v. 

Maryland for censorship schemes are not all 
applicable to content-neutral laws ....................... 

20 

B. The First Amendment does not require that 
the Park District ordinance ensure a strict 
deadline for judicial decision on the merits of 

a permit denial ......................................................... 23 

(III) 

IV 

Table of Contents—Continued: 

Page 

C. The First Amendment does not require that 
the Park District initiate judicial proceedings 

to give effect to its administrative denial of 
a permit application ................................................ 
27 

Conclusion ....................................................................................... 30 

TABLE OF AUTHORITIES 

Cases: 

Ardt v. Illinois Dep’t of Prof’l Reg., 607 N.E.2d 1226 
(Ill. 1992) ............................................................................. 
4, 26 

Capitol Square Review & Advisory Bd. v. Pinette, 
515 U.S. 753 (1995) ................................................................ 
14 

City of Lakewood v. Plain Dealer Publ’g Co., 
486 U.S. 750 (1988) ............................................... 
11, 15, 16, 18 

Clark v. Community for Creative Non-Violence, 
468 U.S. 288 (1984) ................................................................ 
1 

Cox v. New Hampshire, 312 U.S. 569 (1941) .................... 
23 

Dunlop v. Bachowski, 421 U.S. 560 (1975) ........................ 
17 

Forsyth County v. Nationalist Movement, 505 U.S. 
123 (1992) ....................................................... 

8, 10, 11, 15, 17, 18 

Freedman v. Maryland, 380 U.S. 51 (1965) ..... 
7, 8, 13, 21, 25 

Frisby v. Schultz, 487 U.S. 474 (1988) ............................... 
11 

FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 
(1990) .................................................... 

7, 9, 21, 22, 24, 26, 27, 29 

Hague v. CIO, 307 U.S. 496 (1939) ...................................... 

11 

Hanrahan v. Williams, 673 N.E.2d 251 (Ill. 1996), 
cert. denied, 522 U.S. 812 (1997) ......................................... 
18 

Landis v. North American Co., 299 U.S. 248 (1936) ....... 
25 

MacDonald v. Chicago Park Dist., 132 F.3d 355 
(7th Cir. 1997) ......................................................................... 
5 

Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. 

Ins. Co., 463 U.S. 29 (1983) ................................................. 

28 

Niemotko v. Maryland, 340 U.S. 268 (1951) ..................... 14 

V 

Cases—Continued: Page 

Norton v. Nicholson, 543 N.E.2d 1053 (Ill. App. Ct. 
1989), cert. denied, 496 U.S. 938 (1990) ............................. 
4 

Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 
460 U.S. 37 (1983) ........................................................... 
11, 13-14 

Poulos v. New Hampshire, 345 U.S. 395 (1953) ............. 
9, 23, 

24, 26, 28 

Shuttlesworth v. City of Birmingham, 394 U.S. 147 
(1969) ........................................................................................ 18 

United States v. Armstrong, 517 U.S. 456 (1996) ........ 
19, 27 

United States v. Chemical Found., Inc., 272 U.S. 1 
(1926) ........................................................................................ 27 

Ward v. Rock Against Racism, 491 U.S. 781 
(1989) ........................................................................................ 15 

Washington v. Smith, 618 N.E.2d 561 (Ill. App. Ct. 
1993) ....................................................................................... 

4, 26 

Constitution, statutes and regulations: 

U.S. Const. Amend. I ......................................................... 

passim 

Speedy Trial Act of 1974, 18 U.S.C. 3161 et seq. ................. 
25 

5 U.S.C. 705 ................................................................................ 
26 

16 U.S.C. 1 (1994 & Supp. V 1999) ......................................... 
1 

42 U.S.C. 1983 ............................................................................ 
4 

70 Ill. Comp. Stat. Ann. 1505 (West 1993 & Supp. 
2001) ......................................................................................... 2 

§ 7.02 (1993) ........................................................................ 

2 

Chicago Park Dist. Code, ch. VII: 
§ C3a(1) .................................................................................... 
2, 3 

§ C3a(6) .................................................................................... 
3 

§ C3a(9) .................................................................................... 
3 

§ C5e ................................................................................... 
3, 6, 16 

§ C6a(1) .................................................................................... 
3 

§ C6a(2) .................................................................................... 
4 

36 C.F.R.: 

Section 7.96(g)(1)(i) ............................................................... 

11 

Section 7.96(g)(1)(ii) .............................................................. 
11 

Section 7.96(g)(2) ................................................................... 11 

VI 

Regulations—Continued: Page 

Section 7.96(g)(2)-(6) ............................................................. 
2 

Section 7.96(g)(2)(i) ............................................................... 
11 

Section 7.96(g)(2)(ii) .............................................................. 
11 

Section 7.96(g)(3) ................................................................... 
2 

Section 7.96(g)(3)(i) ............................................................... 
11 

Section 7.96(g)(4)(iii) ........................................................... 
2, 16 

Section 7.96(g)(5)(iv) ............................................................. 
2 

Section 7.96(g)(5)(vi) ............................................................. 
16 

Section 7.96(g)(6) ................................................................... 
2 

Section 251.50 ....................................................................... 
2, 11 

Section 251.51 ....................................................................... 
2, 11 

Section 251.54 ......................................................................... 
2 

Section 251.54(e)(1) ............................................................... 
16 

Section 251.54(e)(5) ............................................................... 
16 

Section 251.56 ......................................................................... 
2 

Section 251.60 ......................................................................... 
2 

Section 251.64 ......................................................................... 
2 

Miscellaneous: 

60 Fed. Reg. 45,258 (1995) ....................................................... 

2 

Henry Friendly, Some Kind of Hearing, 123 U. Pa. 

L. Rev. 1267 (1975) ................................................................ 17 

In the Supreme Court of the United States 

No. 00-1249 

CAREN CRONK THOMAS AND WINDY CITY HEMP 
DEVELOPMENT BOARD, PETITIONERS 

v. 

CHICAGO PARK DISTRICT 

ON WRIT OF CERTIORARI TO THE UNITED STATES 
COURT OF APPEALS FOR THE SEVENTH CIRCUIT 

BRIEF FOR THE UNITED STATES 
AS AMICUS CURIAE SUPPORTING RESPONDENT 

INTEREST OF THE UNITED STATES 

This case concerns the constitutionality of a municipal 
ordinance that requires individuals to obtain a permit before 
conducting large-scale events in public parks. Such events 
may include not only social gatherings and sporting events, 
but also expressive activities, such as rallies or demonstra- 
tions. Petitioners have raised several issues concerning the 
First Amendment requirements that apply to such an 
ordinance. 

The National Park Service of the United States Depart- 
ment of the Interior is charged with promoting and regulat- 
ing the use of the National Parks, some of which are some- 
times used for special events and demonstrations, such as 
marching, picketing, religious services, and other activities 
protected under the First Amendment. 16 U.S.C. 1 (1994 & 
Supp. V 1999); Clark v. Community for Creative Non- 
Violence, 468 U.S. 288, 289-290 (1984). The Park Service has 

(1) 

2 

promulgated regulations under which permits are generally 
required for demonstrations and special events held in the 
National Capital Region. See 36 C.F.R. 7.96(g)(2)-(6). The 
regulations also set forth procedures for the application, ex- 
tension, or revocation of a permit. 36 C.F.R. 7.96(g)(3), 
(4)(iii), (5)(iv) and (6). The regulations do not require a judi- 
cial decision on the merits before the denial of a permit takes 
effect. 

The Forest Service of the Department of Agriculture also 
has promulgated regulations that require special-use per- 
mits governing non-commercial activity by groups of 75 or 
more on National Forest System land. 36 C.F.R. 251.50, 
251.51, 251.54, 251.56, 251.60, 251.64. Those regulations are 
designed to “provid[e] a reasonable administrative system 
for allocating space among scheduled and existing uses and 
activities, address[] concerns of public health and safety, and 
control[] or prevent[] adverse impacts on forest resources.” 
60 Fed. Reg. 45,258 (1995). The United States therefore has 
a significant interest in the First Amendment requirements 
that apply to permit provisions such as the ordinance at 
issue in the present case. 

STATEMENT 

1. The Chicago Park District is responsible for operating 
hundreds of public parks and other public facilities in 
Chicago. See generally 70 Ill. Comp. Stat. Ann. 1505 (West 
1993 & Supp. 2001). The Park District is authorized to 
“establish by ordinance all needful rules and regulations for 
the government and protection of parks * * * and other 
property under its jurisdiction.” Id. § 7.02 (1993). One of the 
Park District’s ordinances requires individuals to obtain a 
permit in order to “conduct * * * event[s] involving more 
than fifty individuals” on park property. Chicago Park Dist. 
Code, ch. VII, § C3a(1); Pet. App. 91a. This permit require- 
ment applies both to events involving First Amendment 

3 

expression, such as “public assembl[ies]” and “parade[s],” 
and to events that do not involve any expressive activity, 
such as “picnics.” Ibid. The ordinance also requires a permit 
for other activities that have the potential to interfere with 
the public use and enjoyment of the parks, such as 
“creat[ing] or emit[ting] any Amplified Sound” or “sell[ing] 
or offer[ing] for sale any goods or services.” Id. §§ C3a(6), 
C3a(9); Pet. App. 92a. 

The ordinance sets forth 13 grounds upon which the Park 
District may deny an application for a permit. Chicago Park 
Dist. Code § C5e; Pet. App. 5a, 97a-98a. A permit may be 
denied because, inter alia, another permit has been granted 
to an earlier applicant for the same time and place; the 
intended use would present an unreasonable danger to the 
health or safety of park users or Park District employees; 
the applicant has violated the terms of a prior permit; or the 
applicant has damaged park property on prior occasions and 
has not paid for the damage. Ibid.; see pp. 15-16, infra. 
None of the grounds for denying a permit application is 
based on the content of the expressive activity (if any) 
involved in the event at issue. 

The Park District must decide whether to grant or deny a 
permit within 14 days of receipt of an application, subject to 
a provision for an extension up to an additional 14 days on 
written notice to the applicant. Pet. App. 10a, 43a. If the 
Park District denies an application, it must “clearly set 
forth” the grounds for such denial in writing and, “where 
feasible,” it must propose “measures by which the applicant 
may cure any defects in the application for permit or other- 
wise procure a permit.” Chicago Park Dist. Code § C5e; Pet. 
App. 96a. An unsuccessful applicant has seven days to file a 
written appeal to the General Superintendent of the Park 
District. Chicago Park Dist. Code § C6a(1); Pet. App. 99a. 
The General Superintendent must issue a decision within 

4 

seven days from receipt of the appeal. Chicago Park Dist. 
Code § C6a(2); Pet. App. 99a. 

If the General Superintendent affirms the denial, the 
applicant may seek judicial review in state court by common 
law certiorari. See Pet. App. 8a; Norton v. Nicholson, 543 
N.E.2d 1053, 1059 (Ill. App. Ct. 1989), cert. denied, 496 U.S. 
938 (1990). A proceeding for common law certiorari is heard 
in the same state court that reviews cases under the Illinois 
administrative procedure act, and “amounts to the usual 
substantial-evidence review that is familiar from administra- 
tive law.” Pet. App. 8a-9a. Among their other powers, 
Illinois courts have “the inherent power to issue temporary 
restraining orders or preliminary injunctions,” Ardt v. 
Illinois Dep’t of Prof’l Reg., 607 N.E.2d 1226, 1230 (Ill. 1992), 
and that authority is available in all cases, including common 
law certiorari cases. See, e.g., Washington v. Smith, 618 
N.E.2d 561 (Ill. App. Ct. 1993). 

2. This suit presents a facial challenge under 42 U.S.C. 
1983 to the constitutionality of the permit ordinance. The 
suit was originally brought by Robert MacDonald, an advo- 
cate of marijuana legalization who sought to hold rallies in 
Chicago parks. MacDonald died during the course of the 
litigation, and petitioners Caren Cronk Thomas and the 
Windy City Hemp Development Board were substituted as 
plaintiffs. 

In March 1997, McDonald applied for a permit for an event 
in May of that year, but the Park District denied the appli- 
cation based on, inter alia, multiple violations of permits for 
events held in August 1996. Pet. App. 18a; J.A. 77-78, 81-83. 
McDonald then brought this action in federal district court. 
On May 23, 1997, he sought a preliminary injunction against 
enforcement of the Park District’s permit ordinance, and an 
order allowing him to hold a rally in August 1997. Pet. App. 
20a. MacDonald alleged that the permit ordinance was fa- 
cially unconstitutional because it gave Park District officials 

5 

unfettered discretion to deny permits. The district court 
enjoined the Park District from enforcing certain provisions 
of its ordinance, but the Seventh Circuit reversed. See 
MacDonald v. Chicago Park Dist., 132 F.3d 355, 356 (1997). 
The court ruled that “both the balance of harms and the 
public interest weigh decidedly in the Park District’s favor” 
and that MacDonald had not demonstrated a strong 
likelihood of success on the merits. Id. at 361-362. 

On January 2, 1998, MacDonald applied for a permit to 
hold another rally on May 9-10, 1998. Pet. App. 22a. The 
Park District denied his application on January 15, 1998, on 
the ground that the locations MacDonald requested were not 
available on those dates. See ibid. MacDonald did not ap- 
peal the denial to the General Superintendent. Ibid. Instead, 
MacDonald sought an injunction in federal district court to 
compel the Park District to issue a permit. Id. at 21a. 
MacDonald again alleged, inter alia, that the ordinance is 
unconstitutional because it grants unbridled discretion to 
Park District officials, see id. at 78a-82a, and because it does 
not ensure a prompt judicial decision on the merits of a 
permit denial and does not require the Park District to 
initiate judicial proceedings to effect permit denials, see id. 
at 32a, 45a-48a. The district court rejected MacDonald’s 
claims and granted summary judgment to the Park District. 
Id. at 75a-89a. 

3. The Seventh Circuit affirmed the district court’s deci- 
sion. Pet. App. 1a-12a. 

At the outset, the court explained that petitioners were 
asserting a facial challenge to the Park District’s permit 
ordinance. Pet. App. 2a. The court characterized as “not 

* * * a helpful formula” petitioners’ claim that the ordi- 
nance must “be free of any element of vagueness or uncer- 
tainty that might enable [it] to be enforced in such a way as 
to deter or impede” protected speech because it is a “prior 
restraint.” Id. at 2a-3a. The court noted that the Park 

6 

District’s ordinance does not pose the risks of a censorship 
scheme because it “does not authorize any judgment about 
the content of any speeches or other expressive activity.” 
Id. at 3a. The Court noted as well that it “is not even clear” 
that the permit requirement reduces speech, since allowing 
unregulated access to city parks “could easily reduce rather 
than enlarge the park’s utility as a forum for speech.” Ibid. 
At the same time, the court acknowledged that “[t]here is 

* * * a danger in giving officials broad discretion over 
which political rallies shall be permitted to be conducted on 
public property, because they will be tempted to exercise 
that discretion in favor of their political friends and against 
their political enemies.” Id. at 4a. The existence of those 
competing interests, the court observed, must “give pause to 
any court minded to strike down a permit regulation on its 
face.” Ibid. 

The court then turned to the merits of petitioners’ facial 
challenge. First, the court rejected as frivolous petitioners’ 
claim that one of the ordinance’s grounds for denying a 
permit—that the applicant “has on prior occasions made 
material misrepresentations regarding the nature or scope of 
any event or activity previously permitted”—is too vague. 
Pet. App. 5a (quoting Chicago Park Dist. Code § C5e). The 
court noted that “material” is “one of the elemental legal 
terms, and is considered quite definite enough to form the 
keystone of criminal prohibitions against fraud.” Ibid. The 
court also rejected petitioners’ contention that the ordinance 
grants too much discretion to the Park District, because it 
provides that the Park District “may” deny permits on the 
specified grounds, but does not require it to do so. Id. at 6a. 
The court reasoned that if the Park District were required to 
reject a permit on the stated grounds, “the regulation would 
be more restrictive than it is.” Ibid. 

Finally, the court rejected petitioners’ claims relating to 
the sufficiency of state procedures for judicial review of per- 

7 

mit denials. Relying on FW/PBS, Inc. v. City of Dallas, 493 
U.S. 215 (1990), the court held that the requirement in 
Freedman v. Maryland, 380 U.S. 51 (1965), that the gov- 
ernment seek judicial review of its own action is limited to 
laws that allow government officials to engage in censorship 
through content-based determinations. Pet. App. 9a. The 
court also rejected petitioners’ claim “that the required 
expedition at the administrative level will be undone by foot 
dragging at the state court level.” Id. at 10a. The court 
explained that “[s]ince 42 U.S.C. § 1983, the statute under 
which federal constitutional claims are litigated in the 
federal courts, does not impose any requirement * * * of 
exhausting state judicial remedies, the victim of foot drag- 
ging in state court can always bring a parallel suit in federal 
court, complaining that the delay is denying him an adequate 
remedy for the violation of his constitutional rights.” Id. at 
11a. 

The court distinguished other circuits’ holdings that im- 
posed a requirement of prompt judicial decision after the 
denial of a permit, on the ground that those cases involved 
permit schemes aimed at adult-oriented businesses. Pet. 
App. 11a. In those cases, the court explained, the “govern- 
ment’s evident concern with the content of the ‘speech’ 
disseminated by such businesses argues for greater judicial 
vigilance than in time, place, and manner cases.” Ibid. By 
contrast, the “permit requirement at issue here is far more 
general and so far as appears the permits that are denied do 
not relate to controversial or unpopular expression.” Id. at 
12a. 

SUMMARY OF ARGUMENT 

I. Contrary to petitioners’ claim, this case does not pre- 
sent the question whether a court should entertain a facial 
First Amendment challenge to the Park District ordinance. 
The court of appeals in fact entertained petitioners’ facial 

8 

challenge in this case and adjudicated it on its merits. In any 
event, Forsyth County v. Nationalist Movement, 505 U.S. 
123, 126 (1992), held that a facial challenge could be brought 
to a non-content-based licensing ordinance that, like the one 
in this case, was broadly applicable to speech and non-speech 
activities in a traditional public forum. That holding is 
controlling here. 

II. The court of appeals correctly held that the Park 
District ordinance is not a “prior restraint” that is similar to 
the censorship regime in Freedman v. Maryland, 380 U.S. 
51 (1965), and that it therefore is not subject to the stringent 
substantive and procedural requirements of content-based 
prior restraints. Unlike a content-based censorship scheme, 
the Park District ordinance permits denial of a license only 
on grounds unrelated to the content of any expressive activ- 
ity. Moreover, unlike a content-based censorship scheme, 
the Park District ordinance does not single out expressive 
activities for regulation, but applies equally to all park 
activities involving large groups. 

That does not mean that the First Amendment is inappli- 
cable to the Park District ordinance. Because the ordinance 
may have the effect of imposing a limit on speech in a public 
forum, it must not leave officials with unfettered discretion 
to deny permits and thereby restrict speech on impermissi- 
ble grounds. The ordinance satisfies that standard. It allows 
officials to deny permits only on certain simple, clearly 
stated grounds, and any applicant who satisfies the stated 
conditions must be granted a permit. 

The fact that the ordinance vests some discretion in 
officials to grant permits despite de minimis or technical 
violations does not violate the First Amendment. Without 
such discretion, the ordinance would be more—not less— 
restrictive of speech. Moreover, state administrative law 
imposes restrictions on the Park District’s discretion. It 
would violate state law for the Park District to exercise its 

9 

discretion arbitrarily, granting a permit to one applicant 
despite a minor violation while denying a permit to a simi- 
larly situated applicant because of the same violation. 

III. The court of appeals also correctly held that the 
availability of judicial review of permit denials under the 
Park District ordinance, including the availability of prompt 
temporary or preliminary relief, satisfies First Amendment 
procedural standards. Under FW/PBS, Inc. v. City of 
Dallas, 493 U.S. 215 (1990), an ordinance that requires the 
licensing of sexually oriented businesses need only provide 
for the availability of prompt judicial review of a challenge to 
a permit denial and need not provide that the licensing 
authority must itself initiate a judicial proceeding to render 
the denial legally enforceable. Those same conclusions apply 
a fortiori here. As noted above, like in FW/PBS—and unlike 
in Freedman, where stricter standards of judicial review 
were required—the Park District ordinance does not allow 
authorities to deny a permit based on the content of the 
speech for which the permit is sought. Indeed, the Park Dis- 
trict ordinance is not only content-neutral, as in FW/PBS, 
but also speech-neutral, since it applies equally to non-ex- 
pressive as well as expressive activities. 

The constitutionality of the procedures for judicial review 
here is supported by Poulos v. New Hampshire, 345 U.S. 395 
(1953), in which this Court held that ordinary judicial review 
proceedings were sufficient under the First Amendment in a 
case involving a challenge to a license denial under an 
ordinance similar to the one in this case. Although some 
form of expeditious relief, such as temporary or preliminary 
injunctive relief, presumably must be available in appropri- 
ate cases to protect First Amendment interests, imposing 
strict time limits for a final judicial decision in all permit 
denial cases is unnecessary and would impose significant 
costs on the court system and other litigants. Nor is there 
any justification, in the context of a content-neutral permit 

10 

requirement like the one here, to take the extraordinary 
step of requiring the Park District to initiate judicial review 
of its own denials of permit applications. 

ARGUMENT 

I. THE COURT OF APPEALS PROPERLY ENTER- 
TAINED PETITIONERS’ FACIAL CHALLENGE TO 
THE PARK DISTRICT ORDINANCE 

Petitioners claim (Br. 12) that the court of appeals “de- 
creed that facial challenges should not be entertained in 
First Amendment cases without proof that the law has been 
applied in an unconstitutional manner.” The court of appeals 
did not hold or state that facial challenges may not be heard. 
To the contrary, the court entertained petitioners’ facial 
challenge, although the court ultimately rejected it on its 
merits. Indeed, respondent did not argue below that peti- 
tioners may not bring a facial challenge, and respondent does 
not advance that argument in this Court. See Br. in Opp. 7 
(“The Seventh Circuit did not hold, and Respondent has 
never argued, that a facial challenge is unavailable or inap- 
propriate to Petitioners here.”). Accordingly, this case does 
not present the question whether a facial challenge to an or- 
dinance such as this may be entertained. 

In any event, in Forsyth County v. Nationalist Move- 
ment, 505 U.S. 123, 126 (1992), this Court held that a facial 
challenge may be brought in a similar context. The ordi- 
nance in Forsyth County required permits to be obtained 
“for parades, assemblies, demonstrations, road closings, and 
other uses of public property and roads by private organiza- 
tions and groups of private persons for private purposes.” 
Like the ordinance in this case, the ordinance in Forsyth 
County was not limited to expressive activity, but was 
applicable to “any activity on public property,” regardless of 
whether the activity involved protected expression. Id. at 

11 

1 That feature suggests a generality of purpose and 
application that would tend to mitigate First Amendment 
concerns. See City of Lakewood v. Plain Dealer Publ’g Co., 
486 U.S. 750, 760-761 (1988). On the other hand, the ordi- 
nance in Forsyth County, also like the ordinance in this case, 
required a permit “before authorizing public speaking, pa- 
rades, or assemblies in ‘the archetype of a traditional public 
forum.’ ” 505 U.S. at 130 (quoting Frisby v. Schultz, 487 U.S. 
474, 480 (1988)). Public streets and parks are “quintessential 
public forums,” and the use of such forums “for purposes of 
assembly, communicating thoughts between citizens, and 
discussing public questions” has traditionally enjoyed special 
solicitude under the First Amendment. Perry Educ. Ass’n v. 
Perry Local Educators’ Ass’n, 460 U.S. 37, 45 (1983) (quot- 
ing Hague v. CIO, 307 U.S. 496, 515 (1939)). Accordingly, 
the Court held in Forsyth County that a facial challenge may 
be entertained. 505 U.S. at 129. That holding is controlling 
in this case. 

1 Similarly, the National Park Service’s regulations for National 
Capital Region parks impose permit requirements on both “demonstra- 
tions” and “special events,” see 36 C.F.R. 7.96(g)(2), both of which are 
defined as events “the conduct of which has the effect, intent or propensity 
to draw a crowd or onlookers.” 36 C.F.R. 7.96(g)(1)(i) and (ii), and (2). The 
term “demonstrations” includes “demonstrations, picketing, speechmak- 
ing, marching, holding vigils or religious services and all other forms of 
conduct which involve the communication or expression of views or 
grievances.” 36 C.F.R. 7.96(g)(1)(i). The term “special events” includes 
“sports events, pageants, celebrations, historical reenactments, regattas, 
entertainments, exhibitions, parades, fairs, festivals and similar events” 
that are not “demonstrations.” 36 C.F.R. 7.96(g)(1)(ii). The major differ- 
ences between the rules applicable to the two categories are that some 
demonstrations may be held without a permit, whereas all special events 
require permits, see 36 C.F.R. 7.96(g)(2)(i) and (ii), and demonstrations are 
permitted in some areas in which special events are not, see 36 C.F.R. 

7.96(g)(3)(i). See also 36 C.F.R. 251.50, 251.51 (“special use” permits 
required for National Forest Service lands). 

131. 

12 

Although the court of appeals entertained petitioners’ 
facial challenge, the court did advert to the limitations inher- 
ent in such a challenge when the ordinance under attack is 
content-neutral (indeed, speech-neutral). The court noted 
the “competing interests” at stake in a case such as this, 
since “[a] park is a limited space, and to allow unregulated 
access to all comers could easily reduce rather than enlarge 
the park’s utility as a forum for speech” when competing 
users attempt to use the same part of the park. In the 
court’s view, such considerations “must give pause to any 
court minded to strike down a permit regulation on its face 
and so without consideration of its application to a particular 
event for which a permit was denied.” Pet. App. 3a-4a. The 
court of appeals was correct that those considerations may 
properly inform the analysis in a case such as this. But the 
court was also correct in reaching the merits of petitioners’ 
facial challenge, and as we explain below, it was correct in 
rejecting that challenge. 

II. THE PARK DISTRICT ORDINANCE DOES NOT 
VEST ADMINISTRATIVE OFFICIALS WITH UN- 
CONSTITUTIONAL LICENSING DISCRETION 

A. The Park District Ordinance Is Not The Kind Of 

Content-Based “Prior Restraint” That Is Presump- 
tively Unconstitutional 

Petitioners argue (Br. 15-24) that the Park District’s 
permit ordinance is a species of “prior restraint” and, as 
such, should be regarded as presumptively unconstitutional 
under the First Amendment. Petitioners ask the Court to 
equate the kind of content-neutral permitting requirement 
involved in this case with censorship systems under which 
the government requires individuals to obtain licenses 
before they may engage in certain types of speech at all—at 
any place and at any time—and bases the availability of a 

13 

license on the content of the speech. See, e.g., Freedman v. 
Maryland, 380 U.S. 51 (1965). 

The permitting ordinance in this case is not presumptively 
unconstitutional and does not come before the Court with 
the heavy burden of justification that such “prior restraints” 
based on censorship schemes must satisfy. See Pet. App. 2a- 
4a. Petitioners want to use particular places (public parks) 
at particular times to engage in expressive activity. The use 
of public parks, however, gives rise to problems that are 
unrelated to the content or existence of any expressive activ- 
ity, such as excessive crowding, damage to property, com- 
peting and inconsistent attempts to use the same area, and 
threats to public safety. Unlike a censorship scheme, the 
Park District ordinance employs permitting criteria that are 
not based on the content of the speech (if any) involved in 
the proposed activity, but instead are based on non-com- 
municative concerns such as avoiding scheduling conflicts, 
ensuring traffic flow, and protecting public safety and park 
property. See pp. 15-16, infra. Moreover, the ordinance 
does not single out expressive activities for regulation, but 
instead applies equally to all park activities involving large 
groups, regardless of whether they involve protected ex- 
pressive activity (such as rallies and marches) or non-pro- 
tected, non-expressive activities (such as athletic contests 
and picnics). 

Those features render the Park District’s ordinance far 
less “fraught with danger” to First Amendment interests, 
Freedman, 380 U.S. at 57, than content-based censorship 
schemes. While governmental regulation of the content of 
speech in a public forum is subject to the most searching 
First Amendment review, this Court has long recognized 
that governments have greater latitude to regulate the use 
of public forums for the purpose of addressing non-content- 
related problems. See, e.g., Perry Educ. Ass’n, 460 U.S. at 

14 

45; Capitol Square Review & Advisory Bd. v. Pinette, 515 
U.S. 753, 761 (1995). Such latitude applies in this case. 

B. The Park District Ordinance Contains Reasonably 

Definite, Content-Neutral Standards For The 
Denial Of A Permit 

The court of appeals correctly held that the criteria for 
permit denial in the Park District ordinance provide definite, 
content-neutral standards that satisfy the First Amendment 
because they do not vest an impermissible degree of dis- 
cretion in licensing officials. See Pet. App. 4a-6a. 

1. Although the Park District ordinance is not a censor- 
ship scheme, it is subject to First Amendment scrutiny. 
Even when, as in this case, such an ordinance is intended to 
deal solely with non-content-based concerns, it is conceivable 
that an official could attempt in a particular case to invoke 
the ordinance to prevent disfavored speech in the traditional 
public forum of a public park. See Pet. App. 4a. The more 
broadly the permit system vests the official with discretion 
over the licensing decision, the greater the risk that the 
system may be misused for content-based decisionmaking 
that is impermissible in a traditional public forum. Thus, to 
satisfy the First Amendment, an ordinance that requires an 
individual to obtain a permit prior to engaging in expressive 
activity in a park or other traditional public forum must 
cabin administrative discretion by providing reasonably defi- 
nite content-neutral standards upon which government offi- 
cials must base their decisions whether to grant a permit. 
See Niemotko v. Maryland, 340 U.S. 268, 271 (1951) (“nar- 
rowly drawn, reasonable and definite standards for the 
officials to follow”).2 

2 In addition, such permit systems must satisfy the traditional time, 
place and manner test, under which a permit requirement “must not be 
based on the content of the message, must be narrowly tailored to serve a 
significant governmental interest, and must leave open ample alternatives 

15 

The risks to speech are substantially less than in the 
censorship context, however, and “perfect clarity and precise 
guidance” in the language of the standards is not required. 
Ward v. Rock Against Racism, 491 U.S. 781, 794 (1989). 
Instead, it is enough that the ordinance contain “neutral 
criteria to insure that the licensing decision is not based on 
the content or viewpoint of the speech being considered.” 
City of Lakewood, 486 U.S. at 760. Government officials 
must be allowed some degree of discretion in furthering the 
legitimate public interest in regulating the scheduling of, for 
example, rallies and parades in a manner that is consistent 
with public safety, the preservation of park land and prop- 
erty, and the management of pedestrian and vehicle traffic. 

2. None of the ordinance’s criteria for denial of a permit 
is based on the content of the speech at issue. The Park 
District may deny a permit only on one or more of the 
following grounds: (1) the applicant has filed an incomplete 
application; (2) the applicant has failed to pay required fees 
or to provide proof of insurance; (3) there is “a material 
falsehood or misrepresentation” in the application; (4) the 
applicant “is legally incompetent to contract or to sue or to 
be sued”; (5) the applicant has damaged Park District 
property in the past or has other unpaid debts to the Park 
District; (6) a prior applicant has already received or will 
receive a permit for the same time and place; (7) the pro- 
posed activity will conflict with previously-planned Park 
District programs; (8) the proposed activity is “prohibited by 
or inconsistent with” the classifications or uses of the park; 
(9) the proposed activity would “present an unreasonable 
danger to * * * health or safety”; (10) the applicant has not 
complied with Park District regulations regarding the sale of 
goods or services; (11) the proposed activity is illegal; 

for communication.” Forsyth County, 505 U.S. at 130. Petitioners do not 
allege that the Park District’s permit scheme fails to satisfy this test. 

16 

(12) the applicant has not obtained the required insurance; or 
(13) the applicant “has on prior occasions made material mis- 
representations regarding the nature or scope of an event” 
or has violated the terms of prior permits. Pet. App. 97a- 
99a. 

Those are the only grounds on which a permit may be 
denied. They are objective and reasonable, and none of them 
turns on the content—or even the existence—of any expres- 
sive activity involved in the function for which the permit 
may be sought.3 Those grounds for denial of a license 
therefore serve reasonably to “insure that the licensing deci- 
sion is not based on the content or viewpoint of the speech 
being considered.” City of Lakewood, 486 U.S. at 760. Fur- 
thermore, the ordinance requires the Park District, in its 
notice of denial of an application for a permit, to “clearly set 
forth the grounds upon which the permit was denied.” 
Chicago Park Dist. Code § C5e; Pet. App. 96a. The require- 

3 National Park Service permit regulations for the National Capital 
Region parks provide that permits “may be denied” if (a) a prior permit 
application has been received that “has been or will be granted authorizing 
activities which do not reasonably permit multiple occupancy of the 
particular area”; (b) “[i]t reasonably appears that the proposed demonstra- 
tion or special event will present a clear and present danger to the public 
safety, good order, or health”; (c) “[t]he proposed demonstration or special 
event is of such a nature or duration that it cannot reasonably be 
accommodated in the particular area applied for”; or (d) “[t]he application 
proposes activities contrary to any” applicable laws or regulations. 
36 C.F.R. 7.96(g)(4)(iii). In determining whether to approve a “special 
event” (see note 1, supra), the National Park Service also considers 
criteria listed at 36 C.F.R. 7.96(g)(5)(vi), including whether the objectives 
of the event are within the basic mission of the Service’s National Capital 
Region; whether the area required is reasonably suited in terms of 
accessibility, size, and nature of the proposed event; whether it can be 
accommodated within a reasonable allocation of Park Service funds; and 
whether the event is duplicative of others in the region. See also 
36 C.F.R. 251.54(e)(1) and (5) (criteria for screening “special use” permits 
for National Forest Service land). 

17 

ment that the agency state its reasons, under an ordinance 
that itself contains reasonably narrow, objective, and defi- 
nite grounds for denying a permit and provides for an appeal 
to the General Superintendent, furnishes additional protec- 
tion against arbitrary treatment. Compare Forsyth County, 
505 U.S. at 133 (noting that there are “no articulated 
standards” in the ordinance, that “the administrator is not 
required to rely on objective factors,” that the administrator 
“need not provide any explanation for his decision,” and that 
his decision is “unreviewable”); Dunlop v. Bachowski, 421 
U.S. 560, 572 (1975) (statement of reasons “promotes thought 
by the Secretary and compels him to cover the relevent 
points and eschew irrelevancies”); Henry Friendly, Some 
Kind of Hearing, 123 U. Pa. L. Rev. 1267, 1292 (1975) (the 
“necessity for justification” is “a powerful preventive for 
wrong decisions”). 

3. Petitioners nonetheless claim (Br. 28-29) that “denial 
[of a permit application] is completely discretionary,” be- 
cause the ordinance provides that the Park District “may” 
(rather than “must”) deny permits on the specified grounds. 
That modest degree of discretion does not render the ordi- 
nance facially unconstitutional. 

a. Initially, petitioners err in stating (Br. 28) that a 
permit denial “is completely discretionary.” To the contrary, 
the ordinance provides officials with no discretion to deny a 
permit for reasons other than those specified in the ordi- 
nance. Most speakers or other users of the park can be 
expected to satisfy each of the straightforward and sensible 
criteria in the ordinance. In all such cases, the ordinance 
mandates that the permit be granted and provides officials 
with no discretion whatsoever.4 

4 When this Court has invalidated a licensing scheme on its face on the 
ground that it granted too much discretion to administrators, the Court 
has generally done so when the scheme placed no limits on the officials’ 

18 

In addition, as the Seventh Circuit explained, in the 
absence of the term “may” in the ordinance, the Park Dis- 
trict would be compelled to reject a permit if one of the 
specified grounds was present, regardless of whether there 
were also mitigating circumstances in a particular case. In 
that event, “the regulation would be more restrictive [of 
speech] than it is.” Pet. App. 6a. The permitting scheme 
governs a very broad range of activities, both expressive and 
non-expressive. The existence of some degree of discretion 
permits Park District officials to issue permits in spite of de 
minimis or technical violations that would otherwise trigger 
automatic denial. 

Moreover, as a matter of state law, the Park District, like 
any other administrative body, may not make decisions that 
are arbitrary or capricious or otherwise irrational. See 
Hanrahan v. Williams, 673 N.E.2d 251, 253-254 (Ill. 1996) 
(“The standards of review under a common law writ of cer- 
tiorari are essentially the same as those under the Admin- 
istrative Review Law. Under the Administrative Review 
Law, courts generally do not interfere with an agency’s 
discretionary authority unless the exercise of that discretion 
is arbitrary and capricious * * * or the agency action is 
against the manifest weight of the evidence.”) (citations 
omitted), cert. denied, 522 U.S. 812 (1997). If the Park Dis- 
trict treats two identically situated applicants differently— 

discretion. See, e.g., Forsyth County, 505 U.S. at 133 (“[t]he decision how 
much to charge * * * —or even whether to charge at all—is left to the 
whim of the administrator”); City of Lakewood, 486 U.S. at 769 (“the face 
of the ordinance itself contains no explicit limits on the mayor’s dis- 
cretion”); Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150 (1969) 
(officials “were to be guided only by their own ideas of ‘public welfare, 
peace, safety, health, decency, good order, morals or convenience,’ ” and 
the ordinance thus “conferred upon the City Commission virtually unbri- 
dled and absolute power to prohibit” parades, processions or demonstra- 
tions on city streets). 

19 

say, by denying a permit for a technical violation in one case 
while overlooking that same violation and granting the per- 
mit in another case—the District would thereby be violating 
settled state administrative law. Accordingly, state law 
itself imposes limitations on the modest discretion intro- 
duced into the scheme by the word “may.” 

Finally, even if the term “may” were replaced by “must” 
in the Park District ordinance, the government would still 
retain the ultimate discretion not to prosecute individuals 
who engage in covered activities without permits. See gen- 
erally United States v. Armstrong, 517 U.S. 456, 464 (1996). 
Petitioners have never argued that prosecutorial discretion 
of that sort violates the First Amendment; to the contrary, 
petitioners themselves have been its beneficiaries. See Pet. 
App. 17a (“[E]ven though Mr. MacDonald had no permit for 
May 10 and 11, 1997, the Park District did not stop his rally 
and, in fact, helped him to plan for it.”). So long as the gov- 
ernment retains the discretion not to prosecute some indi- 
viduals who engage in licensed activities without permits, 
the use of the word “may” in the ordinance adds little 
additional discretion; like prosecutorial discretion, it simply 
authorizes the Park District to allow individuals who would 
not, strictly speaking, qualify for a license to engage in the 
activities anyway. 

b. In these circumstances, the court of appeals was cor- 
rect in holding that First Amendment interests are ade- 
quately vindicated through the specification of non-content- 
based grounds for denial of a permit and the availability of 
an “as applied” challenge, in which an unsuccessful applicant 
would have the opportunity to show that the Park District 
acted unlawfully or arbitrarily in denying a permit—e.g., 
because it has granted licenses to other similarly situated 
applicants based on the content of their speech or the 
absence of any protected expressive activity. See Pet. App. 
10a. Such a challenge would allow those who seek to engage 

20 

in expressive conduct to ensure that the residual discretion 
left to the Park District under the ordinance is not used in a 
way that violates the First Amendment, while allowing the 
Park District to operate a practical licensing scheme that 
ultimately protects those who use the parks for a variety of 
both expressive and non-expressive activities.5 

III. A CONTENT-NEUTRAL PERMIT ORDINANCE 
NEED NOT PROVIDE A STRICT DEADLINE FOR 

JUDICIAL DECISION ON THE MERITS OF A 
PERMIT DENIAL OR REQUIRE THE GOVERN- 
MENT TO BEAR THE BURDEN OF SEEKING 

JUDICIAL REVIEW TO EFFECT THE DENIAL 
OF A PERMIT 

A. The Procedures Required In Freedman v. Mary- 
land For Censorship Schemes Are Not All Appli- 
cable To Content-Neutral Laws 

Petitioners argue (Br. 30-33) that, under Freedman v. 
Maryland, a permit ordinance like the one in this case 
cannot be upheld unless it ensures a prompt final judicial 
decision on the merits of a permit denial and unless the 
government bears the burden of seeking judicial review to 

5 Insofar as petitioners are still contending that the use of the term 
“material” grants too much discretion to administrators to determine 
when a falsehood on an application warrants denial of the permit (see Pet. 
Br. 26-28), the court of appeals correctly held that that term is sufficiently 
definite because it “is one of the elemental legal terms, and is considered 
quite definite enough to form the keystone of criminal prohibitions against 
fraud.” Pet. App. 5a. The court also noted that eliminating the term 
“material” “would make the regulation more rather than less restrictive,” 
because it would “authorize[] denying a permit to anyone who has told the 
park district a fib.” Ibid. For those reasons, the use of the term 
“material” in the ordinance in this case does not violate the First Amend- 
ment. 

21 

effectuate the denial. Petitioners’ reliance on Freedman is 
misplaced. 

1. In Freedman, this Court struck down a Maryland 
statute that required a state censorship board to approve 
motion pictures before they could be shown anywhere in the 
State. The goal of the statute was to prevent the display of 
obscene or otherwise “immoral” motion pictures. 380 U.S. at 
52 nn.1-2. Finding that the “apparatus of censorship” is one 
“always fraught with danger and viewed with suspicion” and 
that “[t]he administration of a censorship system for motion 
pictures presents peculiar dangers to constitutionally pro- 
tected speech,” id. at 57, the Court held that three proce- 
dural safeguards were necessary to uphold such a censorship 
scheme: (1) the censor must bear the burden of proof that 
the movie is unprotected expression; (2) the law must assure 
that “the censor will, within a specified brief period, either 
issue a license or go to court to restrain showing the film,” 
with any “restraint imposed in advance of a final judicial 
determination on the merits” to be “limited to preservation 
of the status quo for the shortest fixed period compatible 
with sound judicial resolution”; and (3) the scheme “must 
also assure a prompt final judicial decision.” Id. at 58-59. 

2. In FW/PBS, Inc. v. City of Dallas, 493 U.S. 215 (1990), 
the Court ruled that some of Freedman’s procedural re- 
quirements do not apply to an ordinance that required the 
licensing of adult-oriented businesses and was “aimed at 
eradicating the secondary effects of crime and urban blight.” 
Id. at 220. The plurality opinion in FW/PBS summarized 
Freedman’s procedural safeguards as follows: “(1) any 
restraint prior to judicial review can be imposed only for a 
specified brief period during which the status quo must be 
maintained; (2) expeditious judicial review of that decision 
must be available; and (3) the censor must bear the burden of 
going to court to suppress the speech and must bear the 
burden of proof once in court.” Id. at 227. 

22 

The plurality explained that the “core policy underlying 
Freedman is that the license for a First Amendment-pro- 
tected business must be issued within a reasonable period of 
time, because undue delay results in the unconstitutional 
suppression of protected speech.” 493 U.S. at 228. As a 
result, “the first two safeguards are essential: the licensor 
must make the decision whether to issue the license within a 
specified and reasonable time period during which the status 
quo is maintained, and there must be the possibility of 
prompt judicial review in the event that the license is 
erroneously denied.” Ibid. 

The plurality concluded, however, that Freedman’s other 
procedural safeguards are not required in that setting.6 493 
U.S. at 229-230. The plurality distinguished Freedman on 
the ground, inter alia, that it involved “direct censorship of 
particular expressive material,” which, under the First 
Amendment, “is presumptively invalid.” Id. at 229. By con- 
trast, under the ordinance at issue in FW/PBS, city officials 
did not “exercise discretion by passing judgment on the 
content of any protected speech”; rather, they “review[ed] 
the general qualifications of each license applicant, a ministe- 
rial action that is not presumptively invalid.” Ibid. In that 
context, “[l]imitation on the time within which the licensor 
must issue the license as well as the availability of prompt 
judicial review satisfy” First Amendment standards. Id. at 
230. 

6 The plurality opinion on this point represented the views of three 
Justices. Justice White, joined by the Chief Justice, would not have 
applied any of the Freedman requirements to the city’s ordinance. See 
FW/PBS, 493 U.S. at 244-249 (White, J., dissenting in part); see also id. at 
250-264 (Scalia, J., dissenting in part). A majority of the Court thus nec- 
essarily concluded that a strict deadline for judicial review was 
unnecessary and that the city was not required to seek judicial review of 
its own denial of a license or to bear the burden of proof in court; and this 
court’s judgment embodied that conclusion. See id. at 238. 

23 

B. The First Amendment Does Not Require That The 

Park District Ordinance Ensure A Strict Deadline 
For Judicial Decision On The Merits Of A Permit 
Denial 

1. Like the law challenged in FW/PBS, the Park District 
ordinance does not create the dangers of censorship that 
were present in Freedman and that led the Court to insist on 
a strict timetable for final judicial decision on the merits of a 
permit denial in that case. Like the law in FW/PBS, the 
Park District ordinance is not content-based; indeed, it is not 
even speech-based, since it applies to a broad range of non- 
expressive activities as well as expressive activities. The 
ordinance is directed solely at the non-communicative impact 
of large public gatherings, such as competing uses, conges- 
tion and damage to park property. Accordingly, as in 
FW/PBS, the Freedman requirement of a strict deadline for 
judicial disposition of a challenge to a license denial does not 
apply here. 

2. In Poulos v. New Hampshire, 345 U.S. 395 (1953), 
decided twelve years before Freedman, this Court squarely 
rejected a claim that a park permit ordinance violated the 
First Amendment because of the mere potential for delay 
associated with judicial review of permit decisions. See also 
Cox v. New Hampshire, 312 U.S. 569 (1941). The Court’s 
decision in Poulos was not overruled by Freedman, and it 
remains instructive regarding petitioners’ claimed right to a 
strict deadline for judicial decision. 

The ordinance at issue in Poulos required an individual to 
obtain a license to engage in expressive activity in a public 
park. 345 U.S. at 396-397. Poulos, a Jehovah’s Witness, was 
denied a license to hold a religious service, and he was ar- 
rested for violating the permit ordinance when he nonethe- 
less held the service. Id. at 397. This Court granted certio- 
rari to consider the constitutionality of the license require- 
ment, and also to consider whether “the arbitrary refusal of 

24 

such a license by the Council, resulting in delay, if appellant 
must * * * pursue judicial remedies, was unconstitutional, 
as an abridgement of free speech and a prohibition of the 
free exercise of religion.” Id. at 401. 

After upholding the constitutionality of the ordinance 
itself, the Court addressed Poulos’ claim that his First 
Amendment rights were “abridg[ed] * * * because of delay 
through judicial proceedings to obtain the right of speech 
and to carry out religious exercises.” 345 U.S. at 401 
(emphasis added). Although the Court acknowledged that 
judicial review could be “exulcerating and costly,” id. at 409, 
it concluded that, while “[d]elay is unfortunate,” the “ex- 
pense and annoyance of litigation is a price citizens must pay 
for life in an orderly society where the rights of the First 
Amendment have a real and abiding meaning.” Ibid. 

In Poulos, there was “a valid ordinance, an unlawful 
refusal of a license, with remedial state procedure for the 
correction of the error.” 345 U.S. at 414. The Court held 
that the “state had authority to determine, in the public 
interest, the reasonable method for correction of the error, 
that is, by certiorari [review in state court].” Ibid. The 
Court did not require that the ordinance set a strict deadline 
for judicial resolution of the merits of a permit denial. 
Poulos thus suggests that where, as here, a permit ordi- 
nance is content-neutral and does not vest local officials with 
unfettered discretion, affording the applicant access to a 
“remedial state procedure,” ibid.—including “the availability 
of prompt judicial review,” FW/PBS, 493 U.S. at 230, 
through a motion for preliminary injunctive relief or other 
expedited resolution—is sufficient to satisfy the First 
Amendment. 

3. That conclusion is supported by the substantial costs 
that a strict deadline for judicial action imposes upon the 
judicial system and the parties to other cases. This Court 
has long recognized that there is “the power inherent in 

25 

every court to control the disposition of the causes on its 
docket with economy of time and effort for itself, for counsel, 
and for litigants.” Landis v. North American Co., 299 U.S. 
248, 254 (1936). Applying a strict deadline for resolution of 
any particular class of cases necessarily imposes a cost on 
the judiciary, since it makes it more difficult for courts to 
give the desirable time and attention to other cases. More- 
over, such a deadline imposes a cost on all other litigants, 
whose cases necessarily are resolved more slowly so that the 
favored class of cases can be resolved within the deadline. 
Although the burdens of a strict deadline are justified in 
some classes of cases, see, e.g., 18 U.S.C. 3161 et seq. (Speedy 
Trial Act of 1974), those burdens should not be imposed 
lightly. 

Moreover, imposing a strict deadline for final judicial 
resolution of challenges to permit denials is unnecessary to 
ensure expedition in appropriate cases. The standards for a 
temporary restraining order or preliminary injunction or 
other modes of expedition are designed to identify cases in 
which the need for a speedy decision outweighs the costs 
imposed on the judicial system and other litigants. Courts 
can be expected to act in a timely manner and apply those 
standards with sensitivity to First Amendment interests. 
Cf. Freedman, 380 U.S. at 57-58 (“Because the censor’s busi- 
ness is to censor, there inheres the danger that he may well 
be less responsive than a court—part of an independent 
branch of government—to the constitutionally protected in- 
terests in free expression.”). In some cases, however, the 
ordinary standards for temporary or preliminary relief will 
not be satisfied—e.g., where the moving party has little like- 
lihood of success on the merits. There is no need to impose 
costs on the judicial system and other litigants in order to 
ensure immediate adjudication of an insubstantial claim that 
a permit was invalidly denied. 

26 

4. The requirement of a “remedial state procedure for 
the correction of * * * error,” Poulos, 345 U.S. at 414, is 
thus satisfied in cases such as this so long as there is (1) “an 
effective limitation on the time within which the licensor’s 
decision must be made,” FW/PBS, 493 U.S. at 229, (2) the 
applicant has prompt access to the judicial process following 
a permit denial, and (3) the judicial process permits effective 
relief tailored to the exigencies and merits of the applicant’s 
claim. The Park District ordinance satisfies those standards. 
First, the permit ordinance places strict time limits on the 
administrative process, which petitioners do not appear to 
challenge here. Second, the availability of judicial review in 
state court on a writ of common law certiorari to review 
permit denials, which is in substance “the same as under the 
state’s administrative procedure act,” Pet. App. 8a-9a, pro- 
vides an applicant with prompt access to judicial review that 
satisfies constitutional standards. Third, under Illinois law, 
courts have “the inherent power to issue temporary re- 
straining orders or preliminary injunctions,” Ardt v. Illinois 
Dep’t of Prof’l Reg., 607 N.E.2d 1226, 1230 (Ill. 1992), and 
that power is available in all cases, including common law 
certiorari cases. See, e.g., Washington v. Smith, 618 N.E.2d 
561 (Ill. App. Ct. 1993); compare 5 U.S.C. 705 (reviewing 
court may issue appropriate process “to preserve status or 
rights” in order “to prevent irreparable injury” pending 
completion of judicial review). There is no reason to believe 
that the Illinois courts will not provide effective and timely 
relief when warranted to vindicate an applicant’s First 
Amendment rights. 

27 

C. The First Amendment Does Not Require That The 

Park District Initiate Judicial Proceedings To 
Give Effect To Its Administrative Denial Of A 
Permit Application. 

The court of appeals correctly held that the Park District 
need not bear the extraordinary burden of seeking judicial 
review of its own decision each time it denies a permit in 
order to give legal effect to the denial. See Pet. App. 9a. 

1. In FW/PBS, this Court held, in the context of the li- 
censing of adult-oriented businesses, that the unsuccessful 
applicant—not the government—bears the burden of initiat- 
ing judicial review of the denial of a license. See 493 U.S. at 
229-230. In the present case, as in FW/PBS, the actions of 
Park District officials in denying a permit are not presump- 
tively invalid. See id. at 229. To the contrary, it is presumed 
that government officials who administer licensing laws that 
contain objective standards will properly discharge their du- 
ties under those laws. See United States v. Chemical 
Found., Inc., 272 U.S. 1, 14-15 (1926); accord Armstrong, 517 
U.S. at 464. In fact, there is even less reason here than in 
FW/PBS to presume the invalidity of permit denials, be- 
cause the licensing requirement in FW/PBS “largely tar- 
get[ed] businesses purveying sexually explicit speech,” 493 
U.S. at 224, while the permit requirement here applies 
equally to all large-scale group activities in Chicago’s parks, 
non-expressive as well as expressive. 

Furthermore, in a great many (perhaps most) cases, the 
applicant would have no realistic basis for contesting the 
permit denial under speech-neutral criteria or would choose 
not to do so once the Park District stated the grounds for the 
denial, perhaps choosing instead to remedy the specified 
defect in the application or seek approval for another time or 
place. A requirement that the Park District nevertheless 
obtain a judicial order confirming the validity even of those 

28 

permit denials would be pointless and would impose wholly 
unnecessary burdens not only on the Park District and the 
courts but also on the permit applicants themselves.7 

This Court’s decision in Poulos, supra, also establishes 
that the burden of seeking judicial review may be placed on 
the unsuccessful permit applicant. The Court held in Poulos 
that a State has the authority to require an unsuccessful 
permit applicant to seek judicial review, rather than proceed 
without the required license and raise his legal objectives as 
a defense in any subsequent prosecution for violation of the 
licensing ordinance. 345 U.S. at 414. 

2. Petitioners contend (Br. 35) that a requirement that 
the government initiate judicial proceedings “ensures that 
judicial review will occur even when the applicant lacks the 
funds to pursue the court battle himself.” Regardless of the 
incentive of the particular individual or association to seek 
judicial review, however, where the government action in 
dispute is not presumptively invalid, see p. 27, supra, the 
government should not have to bear the burden of seeking 
review of its own action. Cf. Motor Vehicle Mfrs. Ass’n v. 
State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 n.9 (1983) 
(noting “the presumption of regularity afforded an agency in 
fulfilling its statutory mandate”). In other contexts in which 
an individual claims that government officials have violated 
his constitutional rights, the government is not required to 
seek judicial review of its own administrative action based 

7 In addition, a requirement that the government seek judicial review 
of its own decisions denying permits for activities protected by the First 
Amendment would pose severe line-drawing problems in the context of a 
licensing scheme, such as the one in this case, that makes no distinction 
between expressive and non-expressive activities. Presumably, the Park 
District would have to determine, each time a permit was denied, whether 
the activity in question involves expressive activities, so that the Park 
District could determine whether it was necessary to institute a judicial 
proceeding. 

29 

on an individual’s incentives or financial ability to pursue 
judicial review. The Freedman exception to that general 
rule is based upon the unique circumstances of censorship 
and should not be extended to the present case.8 

3. Petitioners contend (Br. 39-40) that the government 
should bear the burden of proof in court with respect to the 
validity of the permit denial. For the same reasons that the 
First Amendment does not require the government to initi- 
ate judicial proceedings to effect an administrative denial of 
a permit, the First Amendment does not require the govern- 
ment to bear the burden of proof once in court. See 
FW/PBS, 493 U.S. at 229. As explained above, permit 
decisions under the Park District ordinance are not content- 
based; rather, they are based on objective and reasonable 
criteria, and are thus distinguishable from the presumptively 
invalid acts of censors at issue in Freedman. 

8 In FW/PBS, the plurality observed that in Freedman, the motion 
picture distributor “was likely to be deterred from challenging the deci- 
sion to suppress the speech,” whereas in FW/PBS, “[b]ecause the license 
is the key to the applicant’s obtaining and maintaining a business, there is 
every incentive for the applicant to pursue a license denial through court.” 
493 U.S. at 229-230. Insofar as that consideration is relevant here, it sup- 
ports our argument, because “the license is the key” to the applicant’s 
ability to engage in its planned expressive activity in a park. In our view, 
however, the key distinction between this case and Freedman is the dis- 
tinction between content-based censorship, as in Freedman, and a 
content-neutral (indeed, speech-neutral) permit requirement such as the 
one in this case. 

30 

CONCLUSION 

The judgment of the court of appeals should be affirmed. 

Respectfully submitted. 

WILLIAM G. MYERS III 

Solicitor 
RANDOLPH J. MYERS 

Senior Attorney 
Department of the Interior 
JAMES MICHAEL KELLY 

Acting General Counsel 
Department of Agriculture 
THEODORE B. OLSON 
Solicitor General 
STUART E. SCHIFFER 

Acting Assistant Attorney 

General 
EDWIN S. KNEEDLER 

Deputy Solicitor General 
JAMES A. FELDMAN 

Assistant to the Solicitor 

General 
SCOTT R. MCINTOSH 
STEPHANIE R. MARCUS 

Attorneys 

AUGUST 2001