Unofficial Opinion 93-15
Regulation of Assemblies on Public Beaches
This is in response to your request concerning your community's desire to regulate assemblies on Tybee Beach. The purpose of this opinion is to provide a general overview of First Amendment issues and other legal principles which may be applicable.
Governments, like other property owners, have the power to preserve property under their control for the uses to which it is lawfully dedicated. International Soc'y for Krishna Consciousness, Inc. v. Lee, 120 L. Ed. 2d 541, 549, 112 S. Ct. 2701 (1992), citing Greer v. Spock, 424 U.S. 828 (1976). Further, under state law, it is generally a misdemeanor to disobey an order to leave or stay off state property given by a supervisory or governmental official with responsibility over an area when the individual is not "lawfully" on the premises. E. P. v. State, 130 Ga. App. 512 (1973). Given the fact that the beach area is likely to be ruled a "public forum" for First Amendment purposes, see Hague v. CIO, 307 [*2] U.S. 496, 515 (1939); Naturist Soc'y v. Fillyaw, 736 F. Supp. 1103 (S.D. Fla. 1990), aff'd in part and rev'd in part, 958 F.2d 1515, 1523 (11th Cir. 1992), regulation of activity falling within the "free speech" clause of the First Amendment would be subject to reasonable time, place and manner restrictions which are content-neutral. Clark v. Community for Creative Non-Violence, 468 U.S. 288, 293 (1984). Broken down into its various components, the "reasonable time, place and manner" test evaluates restrictions on speech, taking into consideration the "special nature and function" of the property as a whole, on the basis of whether they are (1) justified without reference to the content of the regulated speech ("content-neutral"); (2) narrowly tailored; (3) serve a significant governmental interest; (4) leave open ample alternative channels for communication of information. United States v. Gilbert, 920 F.2d 878, 885 (11th Cir. 1991). See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45 (1983); Cornelius v. NAACP Legal Defense & Educ. Fund, Inc., 473 U.S 788, 802 (1985).
In evaluating whether a time, place, and manner regulation serves [*3] a "significant governmental interest," the courts have recognized the State's interest in the orderly movement and control of an assembly of persons as a "substantial consideration." Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 649 (1981). In Heffron, the Supreme Court dealt with a State Fair which attracted large crowds in a relatively confined area, and recognized that a state's interest in protecting the "safety and convenience" of persons using a public forum is a valid governmental objective. Heffron, 452 U.S. at 650, citing Grayned v. City of Rockford, 408 U.S. 104, 115 (1972); Cox v. New Hampshire, 312 U.S. 569, 574 (1941). The significance of the governmental interest is assessed in light of the characteristic nature and function of the particular forum involved; consideration of a forum's special attributes, such as the lack of available space, limitations on access by a single bridge or the fact that a great number of visitors may be attracted to the forum during a short period of time, is appropriate. Heffron, 452 U.S. at 650-51.
While a regulation of the time, place or manner of protected speech must be narrowly tailored, [*4] it need not be the least restrictive or least intrusive means of doing so. See Community for Creative Non-Violence v. Turner, 893 F.2d 1387, 1393 (D.C. Cir. 1990), citing Ward v. Rock Against Racism, 491 U.S. 781, 787(1989). The cumulative effects of an activity can be considered as part of the inquiry. See Heffron, 452 U.S. at 653.
Requiring a permit prior to the exercise of First Amendment rights must be weighed against the constitutional prohibition against a "prior restraint." Such "prior restraint" is not per se unconstitutional; the U. S. Supreme Court has recognized that the government may impose a permit requirement on those wishing to hold a march, parade or rally, in order to regulate competing uses of public forums. Forsyth County v. Nationalist Movement, 112 S. Ct. 2395 (1992). However, such a scheme may not delegate overly broad licensing discretion to a government official, and must meet the other components of the content-neutral "time, place, and manner test." Id. at 2401. A permitting ordinance must have "narrowly drawn, reasonable and definite standards." Id. at 2042. The amount of a permit fee cannot be tied to the content of the [*5] speech. Id. at 2404.
It appears that lengthy "advance notice" requirements will be subjected to scrutiny. A federal appeals court in another circuit has approved of a National Park Service regulation requiring applicants to apply for a permit at least 48 hours in advance of a planned public gathering. See A Quaker Action Group v. Morton, 516 F.2d 717, 735 (D.C. Cir. 1975). See also 41 C.F.R. § 101-20.402(a)(1992)(permit for use of a public area in GSA building shall be issued within ten working days following its receipt of the completed application). Cf. NAACP v. City of Richmond, 743 F.2d 1346, 1357 (9th Cir. 1984) (20-day advance notice requirement unconstitutional, but acknowledging that other circuits have approved substantially shorter advance requirements).
I have enclosed under separate cover copies of the Code of Federal Regulations pertaining to assemblies in national parks and wildlife refuge areas. At least one of these regulations has been upheld. See A Quaker Action Group v. Morton, 516 F.2d 717 (D.C. Cir. 1975) (reviewing 36 C.F.R. § 50.19 (1973)). See 36 C.F.R. § 2.51 (1992). But see United States v. Rainbow Family, 695 F. [*6] Supp. 314 (E.D. Tex. 1988)(striking down National Forest Service regulation allowing denial of special use permit under "clear and present danger" language, which remains in 36 C.F.R. § 251.54).
There may be additional jurisdictional and law enforcement issues which need to be considered. It is settled that the State of Georgia owns the foreshore, or area up to the high water mark of the beach. State v. Ashmore, 236 Ga. 401 (1976). See 1992 Op. Att'y Gen. 92-6; 1971 Op. Att'y Gen. 71-113 (dealing with the applicability of local ordinances upon state property, and the jurisdiction of local enforcement agencies thereon). Other matters that should be considered are the possible applicability of a 1971 "Mass Gatherings Law" (requiring permit from Department of Human Resources for outdoor gatherings of 5,000 persons or more for 15 hours or more), which has not, to my knowledge been recently invoked or tested in the courts, see O.C.G.A. § 31-27-1, et seq.; 1971 Op. Att'y Gen. 71-124; Rules of Department of Human Resources, Ch. 290-5-28, and the extent of the Governor's powers to supervise and protect property of the state not in the custody of any particular state [*7] agency. O.C.G.A. § 50-16-61.
Finally, concerns have been raised about fraudulent representations in connection with advertisements and promotions concerning events on the beach. One possibility is to provide in the ordinance that such conduct would authorize cancellation of an event permit. In addition, proven fraud could be handled locally at the criminal court level, or civilly through enforcement actions brought under state statutes regulating unfair trade practices. See O.C.G.A. § 10-1-393 (Supp. 1993).
I hope that this overview will be helpful.
Issued this 30th day of December, 1993.
RAY O. LERER
Senior Assistant Attorney General