James C. Kozlowski, J.D., Ph.D.

December 1993 NRPA Law Review, Parks & Recreation

As illustrated by the Doe decision described herein, any governmental regulation of free speech and expressive conduct in public parks must be limited to "narrowly tailored" time, place, and manner restrictions. Specifically, the courts, in determining the constitutionality of a particular regulation, will inquire "whether the restriction burdens more speech than is necessary to further the government's legitimate interests." In addition, the court will consider whether the challenged regulation is content-neutral and whether governmental restrictions on free speech activities "leave open alternative channels for communication of the information."

Since public parks are considered "quintessential" public forums in which to exercise free speech rights guaranteed by the First Amendment, in which "the government's ability to permissibly restrict expressive conduct there is very limited." In this particular instance, the "fit" between the challenged park regulations and the government's interest in restricting noise in public parks was "too loose" to pass constitutional muster.

And the Beat Goes On

In the case of United States v. Doe, 968 F.2d 86 (D.C.Cir. 1992), defendant Diane Nomad was arrested for violating "a federal regulation which prohibits playing a musical instrument at a higher than prescribed decibel level in a national park." Nomad violated the federal regulation "[w]hile beating a drum as part of a political protest in Lafayette Park across the street from the White House." The facts of the case were as follows:

Nomad challenged the constitutionality of that regulation on the ground that "it impermissibly restricts her First Amendment rights to engage in expressive conduct in a public forum." Specifically, Nomad argued that "the regulation is overbroad because it prohibits a substantial amount of expressive conduct beyond the government's legitimate interest in preventing excessive or disturbing noise."

Accordingly, Nomad moved in federal district court to dismiss the charge on the ground that "the regulation itself violated the First Amendment." The United States responded that the challenged regulation was constitutional based on the following two points:

The federal district court ruled that "the regulation survives First Amendment scrutiny as a 'reasonable time, place, and manner' restriction on speech." As a result, the district court denied Nomad's motion, finding that "the challenged regulation was a reasonable time, place and manner restriction, justified by the governmental interest of maintaining 'a peaceful setting' in Lafayette Park." Nomad was subsequently convicted in a bench trial for "aiding and abetting this concerted action.... [a]s part of the group of demonstrators beating the drums in violation of the § 2.12(a)(1)(i) decibel level." Nomad appealed.

As described by the appeals court, the challenged regulation, Section 2.12(a)(1)(i) entitled "Audio Disturbances," prohibited the following activities in national parks:

According to the appeals court, there was "no question that beating a drum in the context of a clearly identified anti-war demonstration is expressive conduct protected by the First Amendment." Further, the court noted that the Supreme Court had provided the following "three-pronged test which a government restriction must meet to restrict First Amendment protected speech in a public forum."

Applying this three-pronged test to the facts of this case, the appeals court found "the first of which is not in dispute in this case and the third of which we need not reach."

As a result, the appeals court determined that "[t]he dispute here pivots on the second prong of the 'time, place, and manner restrictions' test." The appeals court characterized such "narrow tailoring" of time, place, and manner restrictions "as a balancing test, inquiring whether the restriction burdens more speech than is necessary to further the government's legitimate interests."

In applying the "narrow tailoring" test in this case, the appeals court indicated it would "first determine the extent of the government's asserted interest." Further, the appeals court noted that "Lafayette Park is a 'quintessential public forum,' and accordingly, the government's ability to permissibly restrict expressive conduct there is very limited."

On the other hand, the appeals court found that "the government certainly may justifiably impose some sound volume restriction upon persons in all parks including Lafayette."

The specific issue on appeal was, therefore, "whether § 2.12 as presently written is "narrowly tailored" to serve the interest of preventing 'excessive' noise in Lafayette Park." Under the circumstances of this case, the appeals court found that "[t]he government has failed to carry its burden of showing that the regulation is 'narrowly tailored' to further the government's interest in preventing excessive noise in a national park that is also an acknowledged public forum."

The appeals court, therefore, concluded that "[o]n the record before us, it is impossible not to conclude that "the means chosen are substantially broader than necessary to achieve the government's interest."

As a result, the appeals court found no evidence "upon which we can base a holding that this regulation is 'narrowly tailored' to promote the government's interest in maintaining an appropriate level of sound volume in a traditional public forum park during a permitted demonstration."

The federal appeals court, therefore, reversed the judgment of the district court and Nomad's conviction. Further, the appeals court ordered that "the charges against Nomad be dismissed."