Michael Bd.ley v. United States Dep't Of The Interior .

• Decision Date: 06 August 2010
• Docket Number: No. 09-5176.,09-5176.
• Parties: Michael BOARDLEY, Appellant v. UNITED STATES DEPARTMENT OF the INTERIOR, et al., Appellees.
• Court: U.S. Court of Appeals — District of Columbia Circuit

615 F.3d 508

Michael BOARDLEY, Appellant

v.UNITED STATES DEPARTMENT OF the INTERIOR, et al., Appellees.

No. 09-5176.

United States Court of Appeals,District of Columbia Circuit.

Argued May 13, 2010.

Decided Aug. 6, 2010.

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COPYRIGHT MATERIAL OMITTED.

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.

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 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 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 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 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, 112 S.Ct. 2395, 120 L.Ed.2d 101 (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, 112 S.Ct. 2395 (citations omitted).

[2] [3] 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, 105 S.Ct. 3439, 87 L.Ed.2d 567 (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, 122 S.Ct. 2080, 153 L.Ed.2d 205 (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, 115 S.Ct. 2338, 132 L.Ed.2d 487 (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...