Boardley v. United States Department of the Interior

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2010 Decided August 6, 2010

No. 09-5176

MICHAEL BOARDLEY,

APPELLANT

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,

APPELLEES

Appeal from the United States District Court

for the District of Columbia

(No. 1:07-cv-01986)

Nathan W. Kellum argued the cause for appellant. With

him on the briefs was Heather G. Hacker. Jordan W. Lorence

entered an appearance.

Robin M. Meriweather, Assistant U.S. Attorney, argued

the cause for appellees. With her on the brief were Ronald C.

Machen, Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

2

Before: SENTELLE, Chief Judge, BROWN and

KAVANAUGH, Circuit Judges.

Opinion for the court filed by Circuit Judge BROWN.

BROWN, Circuit Judge: It is unlawful to engage in

expressive activities within any of this country’s 391 national

parks unless a park official first issues a permit authorizing

the activity. Michael Boardley argues this licensing scheme is

overbroad and therefore unconstitutional on its face. We

agree. The regulations in their current form are antithetical to

the core First Amendment principle that restrictions on free

speech in a public forum may be valid only if narrowly

tailored. Because these regulations penalize a substantial

amount of speech that does not impinge on the government’s

interests, we find them overbroad and therefore reverse the

district court.

I

In 1916, Congress created the National Park Service

(NPS), within the Department of the Interior, to “promote and

regulate the use of the Federal areas known as national parks,

monuments, and reservations . . . by such means and measures

as conform to the fundamental purpose . . . to conserve the

scenery and the natural and historic objects and the wild life

therein and to provide for the enjoyment of the same in such

manner and by such means as will leave them unimpaired for

the enjoyment of future generations.” 16 U.S.C. § 1. The

Secretary of the Interior was authorized to “make and publish

such rules and regulations as he may deem necessary or

proper for the use and management of the parks . . . and any

violation of any of the rules and regulations authorized by this

section . . . shall be punished by a fine of not more than $500

3

or imprisonment for not exceeding six months, or both.” Id.

§ 3.

The two regulations challenged here govern “[p]ublic

assemblies, meetings,” 36 C.F.R. § 2.51, and the “[s]ale or

distribution of printed matter,” id. § 2.52, within the national

parks. Both regulations are substantially the same. First, they

call for the designation of what the government calls “free

speech areas.” See Appellees’ Br. at 15. Subsections (e)

require park superintendents to “designate on a map, [which]

shall be available for inspection in the office of the

superintendent,” the locations in the park available for public

assemblies or the distribution of printed matter. 36 C.F.R.

§§ 2.51(e), 2.52(e). “Locations may be designated as not

available only if” expressive activities would injure or

damage park resources, “[u]nreasonably impair the

atmosphere of peace and tranquility maintained in wilderness,

natural, historic or commemorative zones,” interfere with

programmatic or administrative activities, substantially impair

the operation of public facilities or services, or “[p]resent a

clear and present danger to the public health and safety.” Id.

Second, the regulations prohibit “[p]ublic assemblies,

meetings, gatherings, demonstrations, parades and other

public expressions of views” and “[t]he sale or distribution of

[non-commercial] printed matter” within park areas, unless “a

permit [authorizing the activity] has been issued by the

superintendent.” Id. §§ 2.51(a), 2.52(a). An application for a

permit must include the applicant’s name; the name of his or

her organization (if any); the date, time, duration, and location

of the proposed event or distribution; an estimate of the

number of participants; and a statement of the equipment and

facilities to be used. Id. §§ 2.51(b), 2.52(b). The regulations

require the superintendent to issue a permit “without

unreasonable delay” unless a prior application for the same

4

time and place has been (or will be) granted; the event is of a

nature or duration that it cannot reasonably be accommodated

without damaging the park or interfering with, or impairing,

other programs or facilities; or it “reasonably appears that the

event will present a clear and present danger to the public

health or safety.” Id. §§ 2.51(c), 2.52(c).1 Finally, “[i]f a

permit is denied, the applicant shall be so informed in writing,

with the reason(s) for the denial set forth.” Id. §§ 2.51(d),

2.52(d). In sum, the NPS regulations erect two layers of

restrictions on speech in national parks: first, they confine

specified expressive activities to “free speech areas”; and

second, they require a permit to be obtained before engaging

in such activities, whether in a “free speech area” or

elsewhere.

II

In 2007, appellant Michael Boardley and some associates

attempted to distribute free tracts discussing the Gospel of

Jesus Christ within a “free speech area” of Mount Rushmore

National Memorial. A park ranger stopped them because they

lacked a permit. Boardley returned home, requested a permit

by phone, but never received a permit or an application. He

then filed this action, seeking a declaration that the NPS

regulations are unconstitutional and violative of the Religious

Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, on

1

Section 2.52 includes two additional grounds for denying a

permit: “The location applied for has not been designated as

available for the sale or distribution of printed matter” or “[t]he

activity would constitute a violation of an applicable law or

regulation.” 36 C.F.R. § 2.52(c).

5

their face and as applied to him.2 Shortly thereafter, he

received the permit he had requested.

The district court dismissed Boardley’s as-applied claims

on grounds of mootness and failure to state a claim. Boardley

v. U.S. Dep’t of Interior, 605 F. Supp. 2d 8, 13–14 (D.D.C.

2009). We summarily affirmed the dismissal of these as-

applied challenges. Boardley v. U.S. Dep’t of Interior, Nos.

09-5176, 09-5186, 2009 WL 3571278, at *1 (D.C. Cir. Oct.

19, 2009) (per curiam).

However, the district court agreed with Boardley that 36

C.F.R. § 2.51(a) was facially unconstitutional to the extent

that it required park visitors to obtain a permit before

engaging in “other public expressions of views.” Boardley,

605 F. Supp. 2d at 15–16. But the court held that this

provision was severable from the overall regulation, and

concluded the remainder of 36 C.F.R. §§ 2.51 and 2.52 was

facially valid. Id. at 16–19. The court therefore granted in

2

The record does not disclose whether Boardley was ordered to

obtain a “[p]ublic assemblies, meetings” permit, 36 C.F.R. § 2.51,

or a permit for the “[s]ale or distribution of printed matter,” id.

§ 2.52. See Compl. ¶ 26 (referring generally to a “free speech

permit”). Conceivably, Boardley ran afoul of both regulations

because he engaged in the “distribution of printed matter” by

handing out the gospel tracts, 36 C.F.R. § 2.52(a), and participated

in a “[p]ublic assembl[y], meeting[], [or] gathering[]” by

congregating with his associates in the same location of the park to

convey his religious views, id. § 2.51(a). In addition, Boardley

alleges that he and at least one of his associates “desire[] to return

to Mt. Rushmore to exercise [their] First Amendment rights . . . .”

Compl. ¶ 41; see id. ¶ 55. In any event, the government has not

argued that Boardley lacks standing to challenge either of these

regulations, and we conclude such an argument would be without

merit.

6

part and denied in part both Boardley’s and the government’s

motions for summary judgment. Id. at 19–20. Both parties

appealed, but the government voluntarily dismissed its appeal.

See Boardley v. U.S. Dep’t of Interior, No. 09-5186, 2010 WL

1255986, at *1 (D.C. Cir. Mar. 5, 2010). Thus, the sole issue

before us is whether the NPS regulations—excluding the

provision in § 2.51 regarding “other public expressions of

views”—are facially unconstitutional under the First

Amendment.

We review the district court’s determination de novo.

See Moore v. Hartman, 571 F.3d 62, 66 (D.C. Cir. 2009).

III

The First Amendment provides, “Congress shall make no

law . . . abridging the freedom of speech.” Boardley claims

the NPS regulations are unconstitutional on their face. “It is

well established that in the area of freedom of expression an

overbroad regulation may be subject to facial review and

invalidation, even though its application in the case under

consideration may be constitutionally unobjectionable.”

Forsyth County v. Nationalist Movement, 505 U.S. 123, 129

(1992). The Supreme Court has explained that “[t]his

exception from general standing rules is based on an

appreciation that the very existence of some broadly written

laws has the potential to chill the expressive activity of others

not before the court. Thus, . . . a party [may] challenge an

ordinance under the overbreadth doctrine in cases where

every application creates an impermissible risk of suppression

of ideas, such as an ordinance that delegates overly broad

discretion to the decisionmaker, and in cases where the

ordinance sweeps too broadly, penalizing a substantial

amount of speech that is constitutionally protected.” Id. at

129–30 (citations omitted).

7

Claims under the Free Speech Clause of the First

Amendment are analyzed in three steps: First, “we must . . .

decide whether [the activity at issue] is speech protected by

the First Amendment, for, if it is not, we need go no further.”

Cornelius v. NAACP Legal Def. & Educ. Fund, Inc., 473 U.S.

788, 797 (1985). Second, assuming the activity “is protected

speech, we must identify the nature of the forum, because the

extent to which the Government may limit access depends on

whether the forum is public or nonpublic.” Id. And third, we

must assess whether the government’s justifications for

restricting speech in the relevant forum “satisfy the requisite

standard.” Id. In this case, the first step requires no lengthy

discussion. The activities prohibited in the absence of a

permit by the NPS regulations are unquestionably “speech”

within the meaning of the First Amendment. See Watchtower

Bible & Tract Soc’y of N.Y., Inc. v. Vill. of Stratton, 536 U.S.

150, 161 (2002) (finding “hand distribution of religious

tracts” to be protected speech) (internal quotation marks

omitted); see also Hurley v. Irish-Am. Gay, Lesbian &

Bisexual Group of Boston, 515 U.S. 557, 568 (1995)

(“Parades are . . . a form of expression, not just motion.”).

The NPS regulations clearly implicate the First Amendment;

the question is whether they violate it.

A

“Even protected speech is not equally permissible in all

places and at all times. Nothing in the Constitution requires

the Government freely to grant access to all who wish to

exercise their right to free speech on every type of

Government property without regard to the nature of the

property or to the disruption that might be caused by the

speaker’s activities.” Cornelius, 473 U.S. at 799–800.

Rather, the extent of scrutiny given to a regulation of

8

speech—in effect, how we examine the directness with which

it promotes the government’s goals and the degree to which it

burdens speech—depends on whether the regulation applies

in a public or nonpublic forum. “Traditional public fora are

those places which by long tradition or by government fiat

have been devoted to assembly and debate.” Id. at 802

(internal quotation marks omitted). Another type of public

forum is the “designated public forum,” which exists when

“government property that has not traditionally been regarded

as a public forum is intentionally opened up for that purpose.”

Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132

(2009). A nonpublic forum is by contradistinction “[p]ublic

property which is not by tradition or designation a forum for

public communication.” Perry Educ. Ass’n v. Perry Local

Educators’ Ass’n, 460 U.S. 37, 46 (1983).

Boardley contends all national parks are traditional public

forums. As support for this proposition, he argues the

Supreme Court repeatedly has stated that “parks” are

quintessential examples of traditional public forums. This

premise is unassailable, see, e.g., Christian Legal Soc’y

Chapter of the Univ. of Cal. v. Martinez, No. 08-1371, slip op.

at 12 n.11 (U.S. June 28, 2010) (referring to “traditional

public forums, such as . . . parks”); Pleasant Grove City, 129

S. Ct. at 1129 (noting “a park is a traditional public forum”),

but Boardley’s conclusion does not follow. The protections

of the First Amendment do not rise or fall depending on the

characterization ascribed to a forum by the government.

Mount Rushmore does not become a public forum merely by

being called a “national park” any more than it would be

transformed into a nonpublic forum if it were labeled a

“museum.” The dispositive question is not what the forum is

called, but what purpose it serves, either by tradition or

specific designation. What makes a park a traditional public

forum is not its grass and trees, but the fact that it has

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“immemorially been held in trust for the use of the public and,

time out of mind, ha[s] been used for purposes of assembly,

communicating thoughts between citizens, and discussing

public questions.” Perry Educ. Ass’n, 460 U.S. at 45 (internal

quotation marks omitted); cf. United States v. Kokinda, 497

U.S. 720, 727 (1990) (plurality) (cautioning that “[t]he mere

physical characteristics of the property cannot dictate forum

analysis” and holding that sidewalk abutting a Post Office

was not a public forum). Thus, to establish that a national

park (in whole or part) is a traditional public forum, Boardley

must show that, like a typical municipal park, it has been held

open by the government for the purpose of public discourse.

The record before this court is woefully inadequate to

determine the forum status of the hundreds of national parks

governed by the NPS regulations. Common sense tells us

they are not all identical. See United States v. Doe, 968 F.2d

86, 90 (D.C. Cir. 1992) (“Th[e] [First Amendment] test . . .

must be applied in a realistic manner which takes into account

the nature and traditional uses of the particular park involved.

Lafayette Park is not Okefenokee National Wildlife Refuge,

even if both are under the Park Service’s supervision.”).

Presumably, many national parks include areas—even large

areas, such as a vast wilderness preserve—which never have

been dedicated to free expression and public assembly, would

be clearly incompatible with such use, and would therefore be

classified as nonpublic forums. But at the same time, many

national parks undoubtedly include areas that meet the

definition of traditional public forums. See, e.g., ISKCON of

Potomac, Inc. v. Kennedy, 61 F.3d 949, 954 (D.C. Cir. 1995)

(“The Park Service concedes, as it must, that the Mall is a

traditional public forum for purposes of the First

Amendment.”). This is a fact-intensive question which

cannot be answered in the absence of evidentiary

submissions. “As heretofore emphasized, the decision as to

10

whether a forum is public usually invokes a factual inquiry.

The forum doctrine itself is not a taxonomy of ideal types; it

is virtually impossible in most cases to identify a public forum

by legal inquiry alone.” Stewart v. Dist. of Columbia Armory

Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (remanding to

district court to develop a factual record on forum status).

Yet, the record on this appeal gives no hint as to the history

and tradition, or lack thereof, of expressive activities in the

various national parks.

Fortunately, we have a basis for resolving this appeal

without deciding the forum status of all 391 national parks.

The government concedes the “free speech areas” made

available within national parks pursuant to subsections (e) of

the NPS regulations are “designated public forums.” See

Appellees’ Br. at 15–16; see also 36 C.F.R. §§ 2.51(e),

2.52(e). These areas are subject to the same permit

requirement as all other locations within the national parks.

See 36 C.F.R. §§ 2.51(a), 2.52(a) (prohibiting specified

expressive activities in the absence of a permit anywhere in a

national park). Thus, at least with respect to these “free

speech areas,” the NPS regulations must be analyzed as

restrictions on speech in public forums, and we need not

(indeed, cannot) decide whether the same analysis would

apply to the diverse range of other areas within the national

parks.3 Having determined that the NPS regulations target

3

Of course, some or all of these “free speech areas” might be

traditional public forums anyway. In accepting the government’s

concession that these areas are designated public forums, we do not

imply that if they had not been so designated they would be

nonpublic forums, or that the government can simply revoke their

designation and thereby alter their forum status. Nor do we suggest

that these are the only public forums within the national parks; they

are simply the only ones cognizable on the sparse record before us.

11

protected “speech,” and that these restrictions apply in public

forums, we proceed to consider whether they “satisfy the

requisite standard.” Cornelius, 473 U.S. at 797.

B

“[T]he core abuse against which [the First Amendment]

was directed was the scheme of licensing laws implemented

by the monarch and Parliament to contain the ‘evils’ of the

printing press in 16th- and 17-century England.” Thomas v.

Chi. Park Dist., 534 U.S. 316, 320 (2002). Thus, “[a]ny

system of prior restraints of expression . . . bear[s] a heavy

presumption against its constitutional validity.” Bantam

Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). Regulatory

schemes “conditioning expression on a licensing body’s prior

approval of content ‘present[] peculiar dangers to

constitutionally protected speech’” and require “extraordinary

procedural safeguards” in order to survive constitutional

scrutiny. Thomas, 534 U.S. at 321, 323 (quoting Freedman v.

Maryland, 380 U.S. 51, 57 (1965)). However, “a content-

neutral permit scheme regulating speech in a public forum . . .

differs toto coelo” from a “licensing standard which gives an

official authority to censor the content of a speech.” Id. at

322 (internal quotation marks omitted). Because

“[r]egulations of the use of a public forum that ensure the

safety and convenience of the people” do not raise the same

kinds of “censorship concerns” as content-based prior

restraints, their presumption of invalidity is more easily

rebutted. Id. at 323.

Thus, in assessing the constitutionality of a prior

restraint, it must be determined at the outset whether the

regulation is content-based or content-neutral. This

determination is critical, not because it might end the inquiry,

but because it will direct its path. Here, the NPS regulations

12

are indisputably content-neutral on their face. They prohibit

certain forms of expressive conduct—public assemblies,

meetings, gatherings, demonstrations, parades, and the sale or

distribution of printed matter—in the absence of a permit,

regardless of the message the speaker wishes to convey. 36

C.F.R. §§ 2.51(a), 2.52(a). Nor is there any evidence the NPS

was motivated to adopt these regulations by its agreement

with or hostility toward any particular message or speaker.

See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642

(1994).

Content-neutral restrictions on the time, place, or manner

of speech in a public forum are analyzed under a familiar

multipart test: First, the regulations may not delegate overly

broad licensing discretion to a government official. Second,

the scheme must be narrowly tailored to serve a significant

governmental interest. And third, it must leave open ample

alternatives for communication. See Forsyth County, 505

U.S. at 130.4

1

Even a content-neutral licensing scheme may raise

significant censorship concerns if it vests government

officials with unrestricted freedom to decide who qualifies for

a permit and who does not. “It is offensive—not only to the

values protected by the First Amendment, but to the very

notion of a free society—that in the context of everyday

public discourse a citizen must first inform the government of

her desire to speak to her neighbors and then obtain a permit

4

The scheme also “must not be based on the content of the

message,” id., but of course this requirement is satisfied since the

content-neutrality of the regulations is the precondition that led us

to the time, place, or manner test in the first place.

13

to do so.” Watchtower Bible, 536 U.S. at 165–66. Thus, such

schemes must “contain adequate standards to guide the

official’s decision and render it subject to effective judicial

review,” thereby eliminating the “risk that he will favor or

disfavor speech based on its content.” Thomas, 534 U.S. at

323. Compare id. at 324 (upholding scheme that provided

several “reasonably specific and objective” grounds for

denying a permit and did “not leave the decision to the whim

of the administrator”) (internal quotation marks omitted), with

Forsyth County, 505 U.S. at 133 (striking down scheme that

contained “no articulated standards” and did “not require[] . . .

rel[iance] on any objective factors”), and City of Lakewood v.

Plain Dealer Publ’g Co., 486 U.S. 750, 769 (1988) (plurality)

(striking down licensing scheme that allowed officials to

subject permit applications to “such other terms and

conditions deemed necessary and reasonable by the Mayor”

because “the face of the ordinance itself contain[ed] no

explicit limits on the mayor’s discretion”).

Boardley argues the NPS regulations vest government

officials with overly broad discretion, allowing a permit to be

denied if “[i]t reasonably appears that the event will present a

clear and present danger to the public health or safety.” 36

C.F.R. §§ 2.51(c)(2), 2.52(c)(2). Before the Supreme Court’s

decision in Thomas, this argument might have been plausible.

But in Thomas, the Court upheld a licensing scheme for

Chicago parks that allowed a permit to be denied if the

intended activity “would present an unreasonable danger to

[public] health or safety.” Thomas, 534 U.S. at 318 n.1, 324.

Boardley distinguishes the NPS regulations because they

allow NPS officials to decide whether the proposed event

“reasonably appears” to present a public danger, as opposed

to deciding simply whether the event “would present” such

danger. See Tr. of Oral Arg. at 12–17. If this is indeed a

distinction, it is one wholly without constitutional

14

significance. An official tasked with forecasting whether a

proposed event might endanger the health or safety of the

public must necessarily make a predictive judgment based on

the facts as she knows them and her expertise in the field.

Few licensing schemes would survive constitutional scrutiny

if certainty were a prerequisite. It is not fatal to the NPS

regulations that they endow park officials with some measure

of discretion. The “clear and present danger” standard is

sufficiently unambiguous and objective to guard against the

possibility of it serving as a backdoor artifice for content-

based censorship. Of course, a future as-applied challenge

could argue that the NPS’s denial of a permit on “clear and

present danger” grounds was, in fact, pretext for content-

based discrimination. But Thomas forecloses this argument

as a facial matter.

Next, Boardley contends the NPS regulations vest park

officials with overly broad discretion because—although they

require permits to be granted or denied “without unreasonable

delay”—they set no specific time period. Most circuits have

held content-neutral licensing schemes need not contain

explicit timeframes for processing permit applications. See

H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 624

(6th Cir. 2009) (rejecting argument “that content-neutral

licensing ordinances [must] contain a brief, specified time

limit”); S. Or. Barter Fair v. Jackson County, 372 F.3d 1128,

1138 (9th Cir. 2004) (“Because it is content-neutral, the Act

need not contain . . . a deadline for consideration by the

governing body.”); Granite State Outdoor Adver., Inc. v. City

of St. Petersburg, 348 F.3d 1278, 1282 n.6 (11th Cir. 2003)

(“[W]e . . . hold time limits are not per se required when the

licensing scheme at issue is content-neutral.”); Griffin v. Sec’y

of Veterans Affairs, 288 F.3d 1309, 1328 (Fed. Cir. 2002)

(same). These courts relied on Thomas’s holding that

content-neutral licensing schemes need not contain the

15

“extraordinary procedural safeguards” imposed on content-

based schemes. Thomas, 534 U.S. at 323. Compare

Freedman, 380 U.S. at 59 (holding that licensing schemes

must contain a “specified brief period” for officials to decide

whether or not to issue a permit), with Thomas, 534 U.S. at

322–23 (explaining that Freedman applies only to content-

based censorship regimes).

Boardley focuses on United States v. Frandsen, where

the Eleventh Circuit held one of the NPS regulations at issue

here (36 C.F.R. § 2.51) to be unconstitutional because the

“without unreasonable delay” standard “fail[ed] adequately to

confine the time within which the decision maker must act.”

212 F.3d 1231, 1240 (11th Cir. 2000). But this decision lacks

persuasive force for two reasons: first, it relied on Freedman

and predated the Supreme Court’s decision in Thomas, which

clarified that Freedman does not apply to content-neutral

schemes; and second, the Eleventh Circuit itself declined to

follow Frandsen in its post-Thomas decision in Granite State

Outdoor Advertising, cited above. Boardley points us to no

post-Thomas decision holding that a content-neutral licensing

scheme must contain an explicit timeframe for official action

in order to withstand constitutional scrutiny.

We find that the “without unreasonable delay” standard is

“adequate . . . to guide [a park] official’s decision and render

it subject to effective judicial review.” Thomas, 534 U.S. at

323. For one, this standard places the NPS regulations on

significantly firmer ground than the licensing schemes upheld

by other circuits, which contained no timeliness standard at

all. It also takes into account the fact that not all applications

can, or should, be processed with equal speed; what

constitutes “unreasonable delay” could vary depending on

such factors as the complexity of the application and the

16

resources of the park to which it is directed.5 In any event, as

the district court found, all national parks “appear to have”

adopted “short and definite deadlines” of “between three and

ten days.” Boardley, 605 F. Supp. 2d at 17. Given that the

scheme upheld in Thomas required applications to be

processed within fourteen days (and could be extended an

additional fourteen days), see 534 U.S. at 318, we have no

trouble finding deadlines between three and ten days to be

reasonable. This case does not require us to proclaim what

the outer limit might be. Lastly, we are sensitive to

Boardley’s concern that park officials could engage in

content-based discrimination by “sit[ting] on a speaker’s

application without granting or denying it and without

explaining the basis for delay.” Appellant’s Br. at 43. But

while this sort of abuse likely would form the basis of a

successful as-applied challenge, here we need not go beyond

the regulations’ facial requirements to speculate about

hypothetical cases.

2

Boardley argues the NPS regulations are not a narrowly

tailored means of achieving the government’s substantial

interests. A content-neutral time, place, or manner regulation

is narrowly tailored “so long as the . . . regulation promotes a

5

The government points us to a memorandum from the Director of

the Department of the Interior to the Regional Directors and

Superintendents of the national parks. It states, “NPS Management

Policies ¶ 8.6.3 (2006) . . . provides that a permit request under 36

CFR § 2.51 will be issued or denied within two business days after

receipt of a proper application.” Oddly, the actual Management

Policies do not appear to be part of our record. It is unclear what

effect, if any, park superintendents have given to this memorandum,

and we therefore decline to rely on it.

17

substantial government interest that would be achieved less

effectively absent the regulation.” Ward v. Rock Against

Racism, 491 U.S. 781, 799 (1989) (internal quotation marks

omitted). But while the regulation “need not be the least

restrictive or least intrusive means,” the regulation may not

“burden substantially more speech than is necessary” to

achieve the government’s substantial interests. Id. at 798–99;

see also Frisby v. Schultz, 487 U.S. 474, 485 (1988) (noting

that a content-neutral ordinance banning picketing in front of

private residences “is narrowly tailored if it targets and

eliminates no more than the exact source of the ‘evil’ it seeks

to remedy”); City of Renton v. Playtime Theatres, Inc., 475

U.S. 41, 52 (1986) (upholding a content-neutral zoning

ordinance because it was “‘narrowly tailored’ to affect only

that category of [adult] theaters shown to produce the

unwanted secondary effects”). Although a content-neutral

restriction will not be struck down “simply because there is

some imaginable alternative that might be less burdensome on

speech,” Ward, 491 U.S. at 797 (internal quotation marks

omitted), the existence of “numerous and obvious less-

burdensome alternatives . . . is certainly a relevant

consideration in determining whether the ‘fit’ between ends

and means is reasonable,” City of Cincinnati v. Discovery

Network, Inc., 507 U.S. 410, 417 n.13 (1993). Thus, “the

court must closely scrutinize the regulation to determine if it

indeed promotes the Government’s purposes in more than a

speculative way.” Cmty. for Creative Non-Violence v.

Kerrigan, 865 F.2d 382, 390 (D.C. Cir. 1989).

The government asserts the NPS regulations further its

interests in “protect[ing] the national parks’ natural and

cultural resources; protect[ing] park facilities and property

from damage; ensur[ing] that locations are not populated

beyond their capacity; protect[ing] visitors to the parks;

avoid[ing] interference with the parks’ activities and the

18

operation of park facilities; and preserv[ing] peace and

tranquility in the parks.” Appellees’ Br. at 25. Boardley does

not appear to question the substantiality of these interests, and

indeed, he would have little basis for doing so. See Clark v.

Cmty. for Creative Non-Violence, 468 U.S. 288, 296 (1984)

(finding a “substantial interest in maintaining the parks in

[D.C.] in an attractive and intact condition”); Heffron v. Int’l

Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650

(1981) (“[I]t is clear that [the government’s] interest in

protecting the safety and convenience of persons using a

public forum is a valid governmental objective”) (internal

quotation marks omitted); Henderson v. Lujan, 964 F.2d

1179, 1184 (D.C. Cir. 1992) (finding a “substantial interest . .

. [in] promot[ing] an atmosphere of calm, tranquility and

reverence in the vicinity of” a war memorial) (internal

quotation marks omitted); White House Vigil for ERA Comm.

v. Clark, 746 F.2d 1518, 1528 (D.C. Cir. 1984) (“[T]he

government has a substantial interest in the preservation and

enhancement of the human environment; aesthetics are a

proper focus of governmental regulation.”) (footnote omitted).

Boardley argues the NPS regulations are not narrowly

tailored to the advancement of these interests because the

permit requirement applies not only to large groups, but also

to small groups and even lone individuals. His argument

draws considerable support from this and other circuits. The

Sixth Circuit, for instance, has found that “[p]ermit schemes

and advance notice requirements that potentially apply to

small groups are nearly always overly broad and lack narrow

tailoring.” Am.-Arab Anti-Discrimination Comm. v. City of

Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down

licensing scheme for public parades because the city’s

“significant interest in crowd and traffic control, property

maintenance, and protection of the public welfare is not

advanced by the application of the [o]rdinance to small

19

groups”). The Fourth Circuit reached the same conclusion in

Cox v. City of Charleston, where a lone protestor challenged

an ordinance barring “any person” from participating in “any

parade, meeting, exhibition, assembly or procession . . . on the

streets or sidewalks of the city” without a permit. 416 F.3d

281, 283 (4th Cir. 2005) (internal quotation marks omitted).

The court held that the “application of the [o]rdinance to

groups as small as two or three renders it constitutionally

infirm” because the city failed to “establish[] why burdening

such expression is necessary to facilitate its interest in

keeping its streets and sidewalks safe, orderly, and

accessible.” Id. at 285–86. The Ninth Circuit relied on

similar grounds in striking down an ordinance requiring street

performers at a public park to obtain permits before

performing. See Berger v. City of Seattle, 569 F.3d 1029,

1035 (9th Cir. 2009) (en banc). The court explained:

[T]he Supreme Court has consistently struck

down permitting systems that apply to

individual speakers—as opposed to large

groups—in the . . . context [of] solicitation of

private homes. . . . Although the Supreme

Court has not addressed the validity of single-

speaker permitting requirements for speech in

a public forum, it stands to reason that such

requirements would be at least as

constitutionally suspect when applied to

speech in a public park, where a speaker’s First

Amendment protections reach their zenith,

than when applied to speech on a citizen’s

doorstep, where substantial privacy interests

exist. It is therefore not surprising that we and

almost every other circuit to have considered

the issue have refused to uphold registration

20

requirements that apply to individual speakers

or small groups in a public forum.

Id. at 1038–39 (citations omitted); see also Knowles v. City of

Waco, 462 F.3d 430, 436 (5th Cir. 2006) (“Other circuits have

held, and we concur, that ordinances requiring a permit for

demonstrations by a handful of people are not narrowly

tailored to serve a significant government interest.”).

Our own precedent points in the same direction. In

Community for Creative Non-Violence v. Turner, we held

unconstitutional a Washington Metropolitan Area Transit

Authority (WMATA) regulation requiring individuals to

obtain permits before engaging in “free speech activities”

within subway stations. 893 F.2d 1387, 1388 (D.C. Cir.

1990). After finding that the stations were public forums, we

held the “permit requirement fails the ‘narrow tailoring’

inquiry.” Id. at 1392. We agreed WMATA’s interest in

promoting safe and convenient access to transportation was

substantial, but concluded the permit requirement swept too

broadly: “While the [r]egulation arguably eliminates the

‘sources of evil’ that allegedly threaten WMATA’s ability to

provide a safe and efficient transportation system, it does so at

too high a cost, namely, by significantly restricting a

substantial quantity of speech that does not impede [its]

permissible goals.” Id. A crucial problem with the regulation

was that it applied to groups of all sizes, even when “two or

more individuals speaking or otherwise proselytizing . . .

would not interfere meaningfully with WMATA’s asserted

interests.” Id.

We are not persuaded by the district court’s attempt to

distinguish these cases on the ground that the NPS regulations

at issue here

21

do not cover city streets, or subway entrances,

or the local public park; they cover places of

immense historical significance . . . and great

natural beauty . . . . Unlike people walking in

the city center or entering the subway, visitors

to a national park expect a peaceful and

tranquil environment, and the government has

a legitimate interest in providing that

experience to them. Even a small

demonstration, or a lone pamphleteer, can

disrupt that experience, particularly in some of

the smaller parks.

Boardley, 605 F. Supp. 2d at 18 (citations omitted). This

analysis amounts to an argument that the national parks are

not public forums. But as discussed above, without deciding

the forum status of every part of every national park, it is at

least clear that the locations designated as “free speech areas”

pursuant to subsections (e) of the regulations are public

forums. See 36 C.F.R. §§ 2.51(e), 2.52(e). Therefore, by

definition, these are not areas where the government has a

paramount interest in maintaining a “peaceful and tranquil

environment,” Boardley, 605 F. Supp. 2d at 18. See Doe, 968

F.2d at 89 (rejecting governmental interest in tranquility at

Lafayette Park and noting that “the very concept of a situs

being designated as a ‘public forum’ for First Amendment

purposes presupposes that the situs has been used for

purposes of assembly, communicating thoughts between

citizens and discussing public questions”) (internal quotation

marks omitted). In fact, the NPS regulations expressly

provide that park superintendents may decline to designate a

location as a “free speech area” if expressive activities would

“[u]nreasonably impair the atmosphere of peace and

tranquility maintained in wilderness, natural, historic or

22

commemorative zones.” 36 C.F.R. §§ 2.51(e)(2), 2.52(e)(2).6

Thus, within “free speech areas,” the government has

exceedingly little basis for hushing “lone pamphleteer[s],”

Boardley, 605 F. Supp. 2d at 18, in the name of peace and

tranquility.

Nor are the remainder of the government’s interests

substantially furthered by imposing the licensing requirement

on small groups and individuals. Restrictions on free speech

must “promote[] the Government’s purposes in more than a

speculative way.” Cmty. for Creative Non-Violence, 865 F.2d

at 390. It is not sufficient that a “regulation . . . contributes

marginally to [the government’s] interest.” Id. The

government asserts interests in preventing overcrowding,

protecting park facilities, protecting visitors, and avoiding

interference with park activities. See Appellees’ Br. at 25.

But why are individuals and members of small groups who

speak their minds more likely to cause overcrowding, damage

park property, harm visitors, or interfere with park programs

than people who prefer to keep quiet? See Lederman v.

United States, 291 F.3d 36, 45 (D.C. Cir. 2002) (“‘Freedom of

expression . . . would rest on a soft foundation indeed if

government could distinguish’ between demonstrators and

pedestrians on ‘a wholesale and categorical basis,’ without

providing evidence that demonstrators pose a greater risk to

identified government interests than do pedestrians.”)

(quoting Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 101

6

We note that Boardley raises no challenge to subsections (e) of the

NPS regulations. 36 C.F.R. §§ 2.51(e), 2.52(e). In other words, he

does not argue that it is unconstitutional to confine specified

expressive activities to “free speech areas” and does not challenge

the grounds provided for declining to designate a location as a “free

speech area.” Rather, he attacks only the permit requirement. Id.

§§ 2.51(a), 2.52(a).

23

(1972)). 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. “[T]he Constitution does not

tolerate regulations that, while serving their purported aims,

prohibit a wide range of activities that do not interfere with

the Government’s objectives.” Id. at 44 (internal quotation

marks omitted).

The fit between means and ends is far more precise when

the NPS regulations are applied to large groups. The most

important function of a permit application is to provide park

officials with the forewarning necessary to coordinate

multiple events, assemble proper security, and direct groups

to a place and time where interference with park visitors and

programs will be minimized. These needs arise routinely with

large-scale events, but only rarely with small ones. For

example, the government argues that it requires advance

notice to determine whether to summon a Special Events and

Tactical Team (SETT). Appellees’ Br. at 36. But according

to the Chief Park Ranger for Mount Rushmore National

Memorial, SETTs are “[m]ost often” deployed for “major

events” such as “large scale demonstrations; presidential,

other VIP, or dignitary visits; major disasters; special

ceremonies requiring crowd control; special law enforcement

investigations and emergency law enforcement operations.”

Third Decl. of Mike Pflaum ¶ 24. Similarly, the NPS’s

“potential need to arrange for additional parking, traffic

control, sanitary facilities, water fountains, and/or first aid

stations,” Appellees’ Br. at 36–37, will arise much more

frequently when a large group plans to hold an event than

when a few people wish to speak freely or hand out

24

pamphlets. Imposing the permit requirement on individuals

and small groups promotes the government’s need for

forewarning only marginally, if at all.

To be sure, the government suggests examples of small

groups that “can attract a significant crowd or otherwise strain

the resources of a park”—such as the “Westboro Baptist

Church,” a “neo-Nazi white supremacist group,” or a “small

group of Ku Klux Klan members.” Id. at 41–42. But the

government has failed to show that most individuals and small

groups who engage in free speech pose such problems. In

order to be narrowly tailored, the regulations must “target[]

and eliminate[] no more than the exact source of the ‘evil’

[they] seek to remedy.” Frisby, 487 U.S. at 485; see Initiative

& Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299,

1307–08 (D.C. Cir. 2005) (holding that ban on signature

solicitation on Postal Service sidewalks was not narrowly

tailored because “the problems the government identifies arise

only occasionally” and “much solicitation . . . is not

disruptive”). The NPS regulations target much more than

necessary. If a Girl Scouts leader musters her scouts onto a

pavilion in a “free speech area” of Glacier National Park and

proceeds to lecture them about the effects of global warming,

she will have conducted both a “meeting” and a “gathering”

(perhaps also an “assembly”) for which a permit would have

been required. 36 C.F.R. § 2.51(a). An elementary school

teacher who leads eight students on an excursion to the

Canyon de Chelly National Monument and, within a “free

speech area,” shows off her best imitation of a traditional

Navajo dance presumably has hosted an unlawful

“demonstration.” Id. If a believer in Creationism visits the

Hagerman Fossil Beds National Monument and, within a

“free speech area,” quietly hands out literature disputing the

theory of evolution, he is guilty of “distribut[ing] . . . printed

matter” without a permit. Id. § 2.52(a). Under a plain reading

25

of the NPS regulations, all of this speech is banned unless a

permit is first acquired, even though none of it remotely

threatens any of the government’s interests. Thus, it is not

dispositive that there may be a few circumstances in which

the permit requirement could validly be applied to small

groups. Even if application of the permit requirement to

individuals and small groups “arguably eliminates [some]

‘sources of evil’ that allegedly threaten” the government’s

various interests, “it does so at too high a cost, namely, by

significantly restricting a substantial quantity of speech that

does not impede [the NPS’s] permissible goals.” Turner, 893

F.2d at 1392.

Our conclusion is reinforced by the fact that the NPS

regulations are far more burdensome when applied to

individuals and small groups than when applied to large

groups. For one, the permit requirement effectively forbids

spontaneous speech. See Watchtower Bible, 536 U.S. at 167–

68. Large groups, of course, generally cannot speak

spontaneously. 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”? See 36 C.F.R. § 2.51(a). This is a major

deprivation of free speech, and it falls almost exclusively on

individuals and small groups. See Shuttlesworth v. City of

Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J.,

concurring) (“[W]hen an event occurs, it is often necessary to

have one’s voice heard promptly, if it is to be considered at

all.”).

26

Secondly, the permit requirement infringes on

individuals’ ability to engage in anonymous speech. A

speaker’s “decision to remain anonymous . . . is an aspect of

the freedom of speech protected by the First Amendment.”

McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342

(1995). This is not to say that the government never can

establish a justification for mandating the disclosure of

identifying information, see, e.g., Doe v. Reed, No. 09-559,

slip op. at 8–10 (U.S. June 24, 2010),7 but only that the

burden of such disclosure falls harder on individuals and

small groups than on large groups. Whereas members of

large groups easily can remain anonymous—except, perhaps,

for the leader who fills out the permit application—a lone

individual has no choice but to put her own name on the

application. Moreover, common experience reveals that large

groups tend to seek as much publicity as possible; anonymity

is more often prized by those operating outside an organized

group. In sum, the permit requirement imposes substantial

burdens on individuals and small groups—burdens which the

government has failed to justify. Because “the means chosen

are . . . substantially broader than necessary to achieve the

government’s interest,” Ward, 491 U.S. at 800, the NPS

regulations are overbroad and not narrowly tailored.

Finally, we note that the government has myriad less

intrusive means of achieving its interests. See City of

7

Indeed, as Boardley recognizes, see Appellant’s Br. at 34–35, with

respect to large groups, the limited disclosure required by the NPS

regulations is justified by the government’s substantial need to

engage in communication with group leaders—to coordinate the

timing and location of multiple events, to ensure adequate security

is in place, and to assess financial responsibility for damage and

other incidental expenses.

27

Cincinnati, 507 U.S. at 417 n.13 (noting that the existence of

“numerous and obvious less-burdensome alternatives . . . is

certainly a relevant consideration in determining whether the

‘fit’ between ends and means is reasonable”). It could, for

example, promulgate separate regulations for different

national parks, taking into account the vast differences in the

sizes and uses of the various parks. Instead of subjecting

individuals and small groups to a prior restraint on speech, the

NPS could simply prohibit and punish conduct that harasses

park visitors, interferes with official programs, or creates

security or accessibility hazards. Or, rather than employing

an identical prior restraint on speech no matter where it occurs

in a park, the NPS could craft distinct regulations for

wilderness areas, visitors centers, parking lots, and so forth.

Whether any of these options would withstand constitutional

scrutiny depends on the specifics, but they all surely would be

more narrowly tailored than the all-encompassing regulations

at hand.

3

Finally, a time, place, or manner regulation must “leave

open ample alternatives for communication.” Forsyth

County, 505 U.S. at 130. These alternatives must exist

“‘within the forum in question.’” Initiative & Referendum

Inst., 417 F.3d at 1310 (quoting Heffron, 452 U.S. at 655).

Thus, we can easily reject the government’s argument that

this requirement is satisfied because “[i]ndividuals can

distribute pamphlets or engage in permitless demonstrations

on other property near” the national parks. Appellees’ Br. at

44 (emphasis added). “[O]ne is not to have the exercise of his

liberty of expression in appropriate places abridged on the

plea that it may be exercised in some other place.” Reno v.

ACLU, 521 U.S. 844, 880 (1997) (internal quotation marks

omitted). This case is analogous to Turner, where we held

28

that WMATA’s licensing scheme for speech in subway

stations failed to leave open ample alternatives for

communication:

[The] permit requirement completely excludes

those desiring to engage in organized free

speech activity . . . unless they have a permit.

There are no [subway station] areas not

covered by the permit requirement. Persons

desiring to engage in any organized free

speech activities in the . . . forum are subject to

the permit requirement; it does not regulate

only the volume, location, or duration of such

expression. There is no intra-forum

alternative.

893 F.2d at 1393.

These same problems plague the NPS regulations. As the

government conceded at oral argument, for someone who

wishes to distribute leaflets in a national park, there is no

lawful alternative to a permit. Tr. of Oral Arg. at 30–31. The

same is true for those desiring to host an assembly, meeting,

gathering, demonstration, or parade. See 36 C.F.R. § 2.51(a).

Given the breadth of these proscriptions, virtually anyone

engaging in any permitless expressive activity in a national

park risks a penalty. Thus, the NPS regulations not only lack

narrow tailoring, they fail to leave open ample intra-forum

alternatives for communication.

IV

Requiring individuals and small groups to obtain permits

before engaging in expressive activities within designated

“free speech areas” (and other public forums within national

29

parks) violates the First Amendment. Neither party has

argued that we should sever the regulations in order to leave

part of them intact, and we perceive no basis for doing so.

And, of course, it is the prerogative of the agency (or

Congress) to decide whether to rewrite the regulations to

apply only to large groups, and to decide where to draw that

line. We have no choice but to hold the regulations

unconstitutional in their entirety. Accordingly, the judgment

of the district court is

Reversed.