Constitutional law - First Circuit conducts independent, not clear-error, review in free speech case involving city ordinances - Sullivan v. City of Augusta.

• Author: Man, Pablo Javier

Protecting the expression of unpopular ideas lies at the heart of the First Amendment; therefore, free speech law inherently distrusts regulation. (1) Acknowledging the First Amendment's importance, the United States Supreme Court imposed a special appellate duty to protect free speech. (2) In Sullivan v. City of Augusta, (3) the First Circuit considered whether two city ordinances violated the First Amendment's free speech and assembly protections. (4) The First Circuit conducted an independent review of the record and vacated in part, reversed in part, and affirmed in part the district court's unconstitutionality findings. (5)

In January 2004, the March for Truth Coalition (Coalition) began organizing a demonstration in Augusta, Maine. (6) The organizational effort required obtaining a permit pursuant to a city ordinance applying to street marches. (7) Accordingly, in February 2004, Coalition organizer Timothy Sullivan filed for a marching permit, which the city agreed to grant if the Coalition posted a bond to cover cleanup and other costs associated with the march. (8) Sullivan subsequently filed suit on behalf of the Coalition in the United States District Court for the District of Maine, seeking a temporary restraining order (TRO). (9) The Coalition argued that it could not afford the fees and that the conditional permit violated its free speech rights. (10) The district court granted the motion with respect to the bond requirement, but it upheld the remaining provisions of the Augusta ordinance. (11)

Sullivan subsequently amended his complaint and returned to court. (12) The parties conducted discovery and submitted a stipulated record. (13) The court discussed the constitutionality of two ordinances: the Parade Ordinance (PO) and the Mass Outdoor Gathering Ordinance (MOGO). (14) The PO, originally at issue in the TRO, sets up the framework for requesting a permit to "march or ... use ... public ways within the city." (15) The MOGO applies to "a mass outdoor gathering attended by two hundred (200) or more persons." (16)

The district court addressed at length issues of standing and ripeness as well as substantive First Amendment questions regarding content neutrality, governmental discretion, and legislative overbreadth. (17) The district court determined that the Coalition had proven standing with respect to both ordinances and that the claims were ripe. (18) Among other findings, the district court concluded that the lack of an indigence exception was unconstitutional. (19) After conducting an independent review of the record, the First Circuit vacated in part, reversed in part, and affirmed in part the district court's findings. (20)

Although standards of review date back to early American jurisprudence, the analytical framework remains ambiguous. (21) Notwithstanding some uncertainty, review standards have become an increasingly important aspect of appellate practice. (22) Courts of appeals apply different standards depending on the issue at hand. (23) For example, the predominant standard of review for factual questions appealed from civil bench trials is "clear error." (24)

Appellate courts generally review questions of law and mixed questions of law and fact de novo. (25) This analytical framework attempts to distinguish law and fact, but the two concepts interrelate. (26) The ambiguity in distinguishing law from fact makes determining the review standard difficult, particularly for mixed questions. (27) For that reason, some appellate courts reviewing mixed questions defer to the lower court's findings of underlying facts instead of reviewing the action de novo. (28) Also complicating matters, the Supreme Court decided that de novo review, also termed independent review, would control First Amendment questions. (29) Independent review ensures that appellate courts safeguard free speech rights by interpreting facts according to the proper constitutional standard. (30)

In Bose Corp. v. Consumers Union of United States, Inc., (31) (Bose) the Supreme Court articulated additional appellate duties for First Amendment cases. (32) Independent review did not begin with Bose, but the decision solidified the standard for the first time. (33) The standard articulated in Bose left ripples that continue to impact appellate review in First Amendment cases. (34) The circuits are now split on an important issue that Bose left unaddressed: whether, given that the rationale for independent review is protection of the First Amendment, independent review is appropriate in all First Amendment cases or only when the finding below disfavors free speech. (35) Four years after Bose, the Supreme Court declined to address the conflict. (36) The First Circuit has adopted the majority's position, which disregards the nature of the finding below and applies independent review in all First Amendment circumstances. (37)

In Sullivan v. City of Augusta, the First Circuit considered the constitutionality of two city ordinances: the PO and the MOGO. (38) The court vacated the district court's rulings regarding MOGO, holding that Sullivan did not have standing to challenge the ordinance. (39) Additionally, the court reversed the district court's ruling that the PO's traffic fee provision granted excessive discretion. (40) The court held that the city had no duty to include an indigence exception because sidewalks are available for free. (41) The court affirmed, however, that the PO's thirty-day advance notice and meeting provisions were unconstitutional. (42)

The First Circuit's decision illustrates some structural issues affecting standards of review. (43) In reviewing standing de novo, for example, the First Circuit disaffirmed the district court's valid factual finding that the MOGO might apply to parades. (44) While courts might view standing as a mixed question of law and fact, the injury-in-fact element is specifically a factual question. (45) When a lower court applies the correct legal standard, an appellate court's factual findings should not weigh more heavily than an equally valid finding of a lower court. (46) Accordingly, the relevant inquiry here is whether appellate courts...