212 F.3d 1231 (11th Cir. 2000), 98-2174, United States v Frandsen

Docket Nº:98-2174.
Citation:212 F.3d 1231
Party Name:UNITED STATES of America, Plaintiff-Appellee, v. Marvin FRANDSEN, Bryan Morris, Defendants-Appellants.
Case Date:May 25, 2000
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

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212 F.3d 1231 (11th Cir. 2000)

UNITED STATES of America, Plaintiff-Appellee,


Marvin FRANDSEN, Bryan Morris, Defendants-Appellants.

No. 98-2174.

United States Court of Appeals, Eleventh Circuit

May 25, 2000

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[Copyrighted Material Omitted]

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Appeals from the United States District Court for the Middle District of Florida.

(No. 97-00076-MC-ORL-22), Anne C. Conway, Judge.

Before TJOFLAT and CARNES, Circuit Judges, and GARWOOD[*], Senior Circuit Judge.

CARNES, Circuit Judge:

This appeal presents us with the issue of the constitutionality of a federal regulation, 36 C.F.R. § 2.51 (reprinted in appendix), which requires persons to obtain a permit before making "public expressions of views" in national parks. Marvin Frandsen and Bryan Morris ("defendants") were arrested and convicted for protesting without a permit at the Canaveral National Seashore ("the park"), a national park, in violation of 36 C.F.R. § 1.6. They challenged on its face the constitutionality of 36 C.F.R. § 2.51, which required them to obtain a permit prior to their protest. For the reasons set forth below, we hold that 36 C.F.R. § 2.51 is unconstitutional on its face, and therefore, we reverse the defendant's convictions.

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Defendants Frandsen and Morris, along with a group of other protestors, were charged with publicly assembling at the park without a permit in violation of 36 C.F.R. § 2.51.1 The government later amended the charge to cite as the provision violated, 36 C.F.R. § 1.6(g)(1), which prohibits engaging in an activity requiring a permit without first obtaining the permit.

The defendants consented to their petty offense trial being conducted before a magistrate judge. In response to the charges, the defendants argued that 36 C.F.R. § 2.51, the regulation requiring them to obtain a permit prior to their protest, and 36 C.F.R. § 1.6(g)(1), the regulation prohibiting protesting without a permit, were facially unconstitutional. They argued that the permit scheme violated the First Amendment because it was a prior restraint on free speech, lacked the constitutionally required procedural safeguards, and vested unbridled discretion in the government officials administering it. The government argued that the permit scheme was a valid time, place, or manner restriction on speech.

The magistrate judge concluded that the park was not a public forum because the government had set it aside for recreational activity, and he applied a reasonableness test in evaluating section 2.51. The magistrate judge then held that the permit scheme provided an adequate restriction on the time the superintendent has to decide whether to issue a permit because the regulation provides that, unless the permit should be denied, the superintendent "shall" issue a permit "without unreasonable delay." Alternatively, the magistrate judge held that, if strict scrutiny applied, the permit scheme was facially constitutional, citing United States v. Kistner, 68 F.3d 218 (8th Cir.1995) (upholding 36 C.F.R. § 2.52(a)).

After the magistrate judge denied all the motions to dismiss, each of the defendants pleaded guilty, but they reserved the right to appeal from the denial of the motion to dismiss. The magistrate judge sentenced each of the defendants to pay a fine of one dollar, but stayed that sentence pending appeal, and also ordered them to pay a special assessment of ten dollars, which was not stayed. All of the defendants appealed to the district court. Agreeing with the magistrate judge that 36 C.F.R. § 2.51 is not unconstitutional, the district court upheld the convictions.2 All of the defendants appealed the district court's decision to this Court. Finding that the notices of appeal were not timely, we remanded the case to the district court for a determination of excusable neglect. After the district court found that only Frandsen and Morris had demonstrated excusable neglect, we entered an order that the appeal could proceed only as to those two defendants.

On appeal, Frandsen and Morris contend that their convictions for protesting without a permit in violation of 36 C.F.R. § 1.6 should be overturned, because the regulation requiring them to obtain a permit, 36 C.F.R. § 2.51, is unconstitutional on its face. Their primary contentions are as follows: (1) section 2.51 lacks the procedural safeguards required for a prior restraint on speech, as set forth by the Supreme Court in Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S.Ct. 734, 739, 13 L.Ed.2d 649 (1965), and its progeny; (2) section 2.51 is overbroad and not narrowly tailored to serve a compelling government

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interest because it covers "other public expressions of views;" and (3) section 2.51 grants unbridled discretion to the park superintendent in deciding whether to grant a permit. We find it necessary to address only their first contention.


Before we can reach the merits of Frandsen and Morris' appeal, we must determine whether a facial challenge is appropriate for the regulation at issue. A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself. See Jacobs v. Florida Bar, 50 F.3d 901, 905-06 (11th Cir.1995). A criminal defendant who is convicted of violating a law may appeal his conviction by challenging the constitutionality of the law on its face. See Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S.Ct. 839, 31 L.Ed.2d 110 (1972); Thornhill v. Alabama, 310 U.S. 88, 97, 60 S.Ct. 736, 742, 84 L.Ed. 1093 (1940) (explaining in the First Amendment context that "[o]ne who might have had a license for the asking may ... call into question the whole scheme of licensing when he is prosecuted for failure to procure it"); United States v. Acheson, 195 F.3d 645, 648-50 (11th Cir.1999). This is true even if the defendant pleaded guilty to violating the law. See United States v. Cunningham, 161 F.3d 1343, 1344 (11th Cir.1998). "[W]hen a licensing statute allegedly vests unbridled discretion in a government official over whether to permit or deny expressive activity, one who is subject to the law may challenge it facially without the necessity of first applying for, and being denied, a license." City of Lakewood v. Plain Dealer Publishing Co., 486 U.S. 750, 755-56, 108 S.Ct. 2138, 2143, 100 L.Ed.2d 771 (1988). The remedy if the facial challenge is successful is the striking down of the regulation and the reversal of the conviction. See Stromberg v. California, 283 U.S. 359, 369-70, 51 S.Ct. 532, 536, 75 L.Ed. 1117 (1931) ("The ... statute being invalid on its face, the conviction of the appellant ... must be set aside.").

The general rule in this circuit is that for "[a] facial challenge to be successful, [a plaintiff] 'must establish that no set of circumstances exists under which the [law] would be valid.' " Adler v. Duval County School Board, 206 F.3d 1070, 1083-84 (11th Cir.2000) (en banc) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S.Ct. 2095, 2100, 95 L.Ed.2d 697 (1987)); see also Jacobs, 50 F.3d at 906 n. 20 ("[w]hen a plaintiff attacks a law facially, the plaintiff bears the burden of proving that the law could never be constitutionally applied.").3 Some circuits have

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determined that a facial challenge to a prior restraint on speech for want of certain procedural safeguards satisfies that general rule. "A form of unbridled discretion is the failure to place brief, specific time limits on the decision-making process. The rationale for permitting a facial challenge is that when a licensing scheme allegedly contains a risk of delay, 'every application of the statute create[s] an impermissible risk of suppression of ideas.' " Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir.2000) (internal quotation marks and citations omitted) (quoting FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 223-24, 110 S.Ct. 596, 107 L.Ed.2d 603 (1990) (plurality opinion)); see also Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir.1998) ("A facial challenge is also appropriate when there is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech.") (citation omitted).

Whatever the precise scope of the general rule may be, the Supreme Court and this Court consistently have permitted facial challenges to prior restraints on speech without requiring the plaintiff to show that there are no conceivable set of facts where the application of the particular government regulation might or would be constitutional. See, e.g., Plain Dealer, 486 U.S. at 755-56, 108 S.Ct. at 2143; FW/PBS, 493 U.S. at 225, 110 S.Ct. at 604; Freedman, 380 U.S. at 58-60, 85 S.Ct. at 738-40; Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir.1999); Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir.1999); Redner v. Dean, 29 F.3d 1495 (11th Cir.1994); cf. Abramson v. Gonzalez, 949 F.2d 1567, 1573 (11th Cir.1992) (explaining that a facial challenge is proper because the regulation "affects the enjoyment of freedoms which the Constitution guarantees and subjects the exercise of First Amendment freedoms to licensing requirements") (internal citations and quotation marks omitted). Because Frandsen and Morris challenge the permit regulation, which is a prior restraint on speech, on grounds that it fails to provide constitutionally required procedural safeguards, the general rule set forth in Adler does not apply...

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