“The idea came out of just the sheer cost to the Park Service and Park Police putting on and supporting some of these events,” said Mike Litterst, a spokesman for the agency. “At this point we’re just asking the question.”
Experts said that it was unclear whether imposing fees on groups exercising their First Amendment rights would pass constitutional muster.
Joshua Geltzer, executive director of Georgetown Law’s Institute for Constitutional Advocacy and Protection, said that although the Park Service may have a legitimate grievance about how much it has spent, several lower courts have ruled that government entities should bear the burden of supporting First Amendment events such as protests and rallies.
What’s unknown is how much of that burden, he said.
“I think this would be wading in some uncertain waters here when it comes to constitutional law,” Geltzer said. “It’s not totally without precedent to suggest there might have to be some fees attached. Many jurisdictions have a small processing fee for permits, and none of us think that’s a burden or exclusionary. But what I see them asking in this proposal is: Could we, should we, go further than that?”
Applicants wanting to hold a demonstration in D.C. parks don’t have to pay to submit a permit or host an event, according to Park Service policy. But, organizers said, there are other costs protesters do end up covering.
Depending on the size of a protest, Park Service regulations require organizers to provide toilets, on-site emergency medical responders, trash pickup and more.
Samantha Miller, an organizer with DC Action Lab, a group that helps advise and run demonstrations in the District, said organizations with small budgets can find it cost-prohibitive to comply with Park Service requirements.
“Imposing any more cost on people expressing their First Amendment rights is just going to stop people from doing that, or it’s going to increase the number of unpermitted protests, which can be a concern when you want to keep people safe,” Miller said.
The number and size of demonstrations held in the District has increased substantially in recent years, averaging 750 protest permits annually. Last year, the District had 714 permitted demonstrations, including the Women’s March, in which tens of thousands packed the Mall and city streets.
This year, the agency helped coordinate protests including the March for Our Lives — an anti-gun-violence rally in which hundreds of thousands descended on Pennsylvania Avenue. This weekend’s Unite the Right white-nationalist rally requires intricate security plans and many officers from several agencies.
As a result, Litterst said, the agency has increasingly found itself dipping into emergency funds to pay for security, permit processing and restoration of areas used for protests.
“Those costs can very quickly get up into six figures,” Litterst said. “We don’t get a supplemental budget. No one says, ‘Oh, First Amendment events at the National Mall have really gone up so here’s an increase to your base budget to support that kind of thing.’ ”
The Park Service on Thursday was not able to produce an estimate for how much money is spent annually in supporting protests and rallies, but Litterst said, on average, the processing of permits alone costs the department $700,000 in staff time each year.
Although Geltzer said any additional fees would “raise quite a few constitutional questions,” he suggested the agency’s best bet would be instituting a uniform fee for all organizations that want to host a protest, or a sliding-scale fee based on the event’s size.
He also suggested a fee-waiver program that would allow smaller entities to apply for financial relief.
Special events not deemed an exercise of free speech — such as concerts, weddings and fairs — are required to reimburse the Park Service for time and resources.
“We don’t make money,” Litterst said. “We are expected to break even and have no expenditure out of our operating budget to support special events like that.”
A public comment period for the proposed rule changes will begin Tuesday and be open for 60 days.
Other proposals are also open for discussion, including limiting or expanding the number of people who can gather without a permit. Several parks under federal jurisdiction in the District allow hundreds of people to gather without a permit, although that number is set at 25 on Park Service land outside the city.
The Park Service reversed course this year on a proposal to dramatically increase fees to enter national parks during periods of high traffic, after a public comment period revealed widespread opposition.
If the Park Service moves toward requiring repayment from activists, Miller said the agency may be forced to facilitate protests against itself.
“I think if the Park Service tries to move forward with these really restrictive regulations, you’ll probably see some legal challenges to this,” Miller said. “But you’re definitely going to see more protests — against the Park Service.”