142
Rehnquist, C. J., dissenting
Court might find that the administrator does possess too much discretion. In either case, I believe findings by the District Court on the issue would be preferable.
The Court relies on Ward v. Rock Against Racism, 491 U. S. 781, 795-796 (1989), for the proposition that the county's interpretation of the ordinance must be considered. In that case, however, we relied upon District Court findings concerning New York City's limiting interpretation of a noise regulation. Id., at 795. I would prefer to remand this case so that the Court might rely on such express findings here as well.
The Court's second reason for invalidating the ordinance is its belief that any fee imposed will be based in part on the cost of security necessary to control those who oppose the message endorsed by those marching in a parade. Assuming 100 people march in a parade and 10,000 line the route in protest, for example, the Court worries that, under this ordinance, the county will charge a premium to control the hostile crowd of 10,000, resulting in the kind of "heckler's veto" we have previously condemned. Ante, at 133-136. But there have been no lower court findings on the question whether or not the county plans to base parade fees on anticipated hostile crowds. It has not done so in any of the instances where it has so far imposed fees. Ante, at 132. And it most certainly did not do so in this case. The District Court below noted that:
"[T]he instant ordinance alternatively permits fees to be assessed based upon 'the expense incident to . . . the maintenance of public order.' If the county had applied this portion of the statute, the phrase might run afoul of . . . constitutional concerns. . . .
"However, in the instant case, plaintiff did not base their [sic] argument upon this phrase, but contended that the mere fact that a $100 fee was imposed is unconstitutional, especially in light of the organization's financial circumstances. The evidence was clear that the
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