(As posted:)

NEWS ARTICLE, AND OPINION FOLLOW --
Examiner Bio

D.C. Circuit strikes down National Park Service regulations governing expressive activity
August 6, 3:07 PM
Natural Resources Policy
Examiner Hank Lacey

Two National Park Service regulations that limit public assemblies and the distribution of fliers to specified  zones within federal preserves, and require a permit before engaging in those activities, were invalidated Friday as violations of the First Amendment by a federal appeals court.

The U.S. Court of Appeals for the District of Columbia Circuit ruled that "free speech areas" within national parks, monuments and other preserves are available to the public as places to communicate ideas and opinions and, as "content-based" limits on speech, the regulations' legal reach is greater than needed to achieve the government's objective.

"[W]ithin 'free speech areas,' the government has exceedingly little basis for hushing lone pamphleteers, in the name of peace and tranquility," wrote U.S. Circuit Judge Janice Rogers Brown in an opinion for a three-judge appeals panel. "We fail to see why an individual‚s desire to be communicative is a strong proxy for the likelihood that she will pose a threat to park security or accessibility. No doubt some individuals and small groups will cause these problems, but many will not; and the government has not explained why those engaged in free expression are more likely to be problematic than anyone else."

The dispute arose when a ranger at Mount Rushmore National Memorial in South Dakota required a man to obtain a permit before continuing to distribute religious tracts on the plaza below the sculpture of four U.S. presidents.

The court pointed out that individual pamphleteers rarely pose a threat to the function of national preserves, if their activities are confined to the expressive activity zones, and that the "permit requirement effectively forbids spontaneous speech."

"Large groups, of course, generally cannot speak spontaneously," Brown wrote. "Obligating a large group to apply for a permit simply creates one more step in the already-lengthy process of planning a large-scale event. Individuals and small groups, by contrast, frequently wish to speak off the cuff, in response to unexpected events or unforeseen stimuli. For example, if an individual comes upon a (duly licensed) antiwar protest at a national park and wishes to don a „support the troops‰ pin in response, must he first apply for a permit or otherwise risk being penalized for engaging in an unlicensed „demonstration‰? This is a major deprivation of free speech, and it falls almost exclusively on
individuals and small groups."

The court was also concerned that the regulations render it difficult, if not impossible, for an individual to engage in anonymous speech, a choice that is protected by the First Amendment.

Judge Brown's opinion suggested that the National Park Service could achieve its legitimate objectives by writing different regulations for each preserve under its jurisdiction. She also opined that the agency could tailor specific regulations to the particular areas of a preserve, such as parking lots, visitor centers, and backcountry areas, where expressive activity may occur.

Brown's opinion was joined by Judges Brett A. Kavanagh and David Sentelle.

 More About: National Park Service · First Amendment              ShareThis

-------------------------------------------------------