U.S. v. Kistner

• Decision Date: 12 October 1995
• Docket Number: No. 94-3172,94-3172
• Citation: 68 F.3d 218
• Parties: UNITED STATES of America, Appellee, v. Harold W. KISTNER, Appellant.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 218

68 F.3d 218

UNITED STATES of America, Appellee, v. Harold W. KISTNER, Appellant.

No. 94-3172.

United States Court of Appeals Eighth Circuit.

Submitted Sept. 11, 1995.

Decided Oct. 12, 1995.

Elkin Kistner, St. Louis, Missouri, argued, for appellant.

Frederick James Dana, Assistant United States Attorney, argued, for appellee.

Before HANSEN, HEANEY, and MURPHY, Circuit Judges.

DIANA E. MURPHY, Circuit Judge.

Appellant Harold Kistner received a ticket for distributing printed matter without a permit at the Jefferson National Expansion Memorial. A magistrate judge found Kistner guilty of violating 36 C.F.R. Sec. 2.52(a), a petty offense, and fined him $50.00; ¹ his conviction was affirmed by the district court. ² Kistner admits that he distributed pamphlets without a permit and that he did not apply for one, but he claims that his noncompliance with the permit requirement was justified under the First Amendment. We affirm for the reasons discussed below.

I.

The National Park Service, a division of the United States Department of the Interior, manages the Jefferson National Expansion Memorial in St. Louis, Missouri. The Park Service is charged by Congress with regulating the use of national parks 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. Sec. 1. The Memorial park is the site of the Arch and is commonly referred to as the Arch grounds.

On July 4, 1992, shortly before 6:00 p.m., Kistner and a friend were distributing pamphlets at the foot of the Arch, where approximately 50,000 to 60,000 people had gathered for an air show at the Veiled Prophet Fair. (The annual fair attracts up to 300,000 people daily.) The pamphlets contained Bible quotations and other religious verses. The two men also carried cardboard signs, approximately one and one half by two feet, which were attached to wooden sticks about two feet long.

Park Rangers Bland and Carlson approached the men and explained that under 36 C.F.R. Sec. 2.52(a) a permit was needed to distribute their materials. This regulation provides that:

The sale or distribution of printed matter is allowed within park areas, provided that a permit to do so has been issued by the superintendent, and provided further that the printed matter is not solely commercial advertising.

Carlson later testified that he told Kistner that he could apply for a permit at the Old Courthouse or at a temporary site on the Arch grounds, gave him directions to the latter location, and offered to radio ahead that he was coming. The rangers also told Kistner that no permit was needed to distribute pamphlets if he moved to Leonor K. Sullivan Boulevard, which runs along the border of the Arch grounds. After Kistner and his friend declined these options and "refused to cease their expressive activities," Appellant's Brief at 2, Ranger Bland issued them citations for violating the regulation and confiscated their signs and pamphlets. They then left the Arch grounds.

Kistner refused to pay the $50.00 fine, and a trial was held before a magistrate judge. Ranger Carlson testified at the trial that Kistner had said that God had told him to spread the word, that he did not need a permit and would not talk to anybody about getting one, and that God's rules were higher than those of the government. Carlson also stated that the wooden stick on Kistner's sign posed a safety concern in the crowded area because it could have injured someone's eyes or body.

A National Park Service captain testified that officials were available on the Arch grounds every day of the fair to process permit applications in about 35 minutes. The process involved a brief interview and a verbal outline of the conditions for obtaining a permit; permits were issued on site.

Permit conditions are listed in a Park Service "Policy Statement on the Sale and Distribution of Printed Matter" for the Jefferson Memorial. ³ The general statement in this two page form indicates that only the time, place, and manner for First Amendment activities are to be regulated under 36 C.F.R. Sec. 2.52. Provisions listed in the policy statement include the time period permit holders may conduct their activities, the fact that locations will be designated on a map attached to each permit, and the rules against littering, harassing park visitors, or otherwise endangering public health, safety, and welfare.

Evidence was introduced concerning several permits that had been granted for the distribution of materials on July 4, 1992. The entire Arch grounds was authorized for distribution of religious literature by seventy people under one permit and of campaign literature under another permit. Southwestern Bell set up a voter registration table, and Citizens for Perot applied for and received a permit that day for twelve distributors. The permits restricted their holders from carrying signs with sticks, obstructing or impeding pedestrians or vehicles, harassing park visitors with physical contact or persistent demands, or misrepresenting their purposes.

Kistner represented himself at trial, testified on his own behalf, and cross-examined government witnesses. After waiving opening statements, Kistner testified that he talked with and distributed pamphlets to at least three individuals. He stated that some people made hostile remarks to him and that he believed the rangers had responded to public pressure to suppress his message. He admitted telling the rangers that "God's law is higher than man's law." Kistner claimed that he asked Ranger Bland if it would take a week to get a permit and that he responded "probably." Kistner asked Ranger Carlson if he recalled such an exchange, and Carlson said he did not. Kistner also confirmed that the rangers repeatedly told him he would not need a permit on the adjacent boulevard, but claimed that this was the only alternate option they gave him.

II.

On appeal, Kistner contends that the policy statement on printed matter is both unconstitutional on its face and as it was applied to him. ⁴ He contends that the magistrate judge failed to sufficiently consider First Amendment concerns and that the policy statement is neither supported by a significant government interest nor narrowly tailored. ⁵ In addition to this facial attack, he claims that the policy statement was discriminatorily enforced against him. ⁶

We review legal conclusions involving First Amendment issues de novo, Pursley v City of Fayetteville, Ark., 820 F.2d 951, 953 (8th Cir.1987), but defer to the trial court's findings of fact unless clearly erroneous. Ambassador Books & Video, Inc. v. City of Little Rock, Arkansas, 20 F.3d 858, 864 (8th Cir.), cert. den., --- U.S. ----, 115 S.Ct. 186, 130 L.Ed.2d 120 (1994); Holmberg v. City of Ramsey, 12 F.3d 140, 142 (8th Cir.1993), cert. den., --- U.S. ----, 115 S.Ct. 59, 130 L.Ed.2d 17 (1994).

A.

Written expression in a public park is subject to reasonable time, place, or manner restrictions. ⁷ Ward v. Rock Against Racism, 491 U.S. 781, 789, 109 S.Ct. 2746, 2753, 105 L.Ed.2d 661 (1989). Restrictions must be content neutral, narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication. Id.

The Constitution does not permit the government to regulate speech because it disagrees with its content or message. Clark v. Community For Creative Non-Violence, 468 U.S. 288, 296, 104 S.Ct. 3065, 3070, 82 L.Ed.2d 221 (1984) (Park Service regulation barring camping by demonstrators was content neutral and was not applied because of any disagreement with the message presented). A time, place, or manner regulation is content neutral if the government can justify the restriction without reference to the content of the regulated activity. Id. In addition to being facially neutral, a regulation must not place unbridled discretion in the hands of the government officials who enforce it. Ward, 491 U.S. at 782-83, 109 S.Ct. at 2755-56 (city regulation of sound from bandshell gave officials discretion only about sound quality and volume, not content of the music).

The regulation in question lists several content neutral reasons for requiring permits: to avoid overcrowding and overlapping activities, to preserve peace and tranquility, to prevent dangers to public health or safety, and to minimize damage to park resources and facilities. 36 C.F.R. Sec. 2.52(c)(1)-(5). The policy statement reflects similar concerns for public safety, health, and welfare, as opposed to any restriction on the content of expressive activity.

There is also no indication that officials exercise unbridled discretion in enforcing the policy statement or regulation. The regulation requires that the superintendent "shall" issue a permit on proper application unless it would be contrary to the reasons for the regulation. The permits granted for July 4 that were introduced into evidence prohibited holders from harassing visitors, obstructing park activities, or carrying signs with sticks. These restrictions are consistent with the policy statement's provisions about public safety. As Ranger Carlson testified, wooden sticks attached to signs like those carried by Kistner and his friend potentially endangered the large crowd at the fair. Further, those with permits distributed a wide range of literature, including religious materials. There was no evidence that people were allowed to distribute literature without a permit in violation of the policy statement, or that people had applied for and been denied a permit based on the content of their message.

We thus find unpersuasive Kistner's speculation that the government's discretion under the policy statement creates an unacceptable risk that free speech may be regulated on the basis of content. The record shows to the contrary, for the...