[7] It also cannot reasonably be disputed that the public Forest
Service lands are the type of forum in which expressive activity
has historically occurred, and in which public expression of views
must be tolerated to a maximal extent. E.g., Hague v. C.I.O., 307
U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939) (use of public streets
and parks for exchange of ideas has "from ancient times been a part
of the privileges" of citizenship). In contrast to military bases
or other government facilities that have been designated for a
particular use or function and may be closed to expressive
activity, see United States v. Albertini, 472 U.S. 675, 105 S.Ct.
2897, 86 L.Ed.2d 536 (1985), and Greer v. Spock, 424 U.S. 828, 96
S.Ct. 1211, 47 L.Ed.2d 505 (1976) (military base is nonpublic
forum); Monterey County Democratic Central Committee v. U.S.
Postal Service, 812 F.2d 1194 (9th Cir.1987) (post office is
nonpublic forum); Hale v. Dept. of Energy, 806 F.2d 910 (9th
Cir.1986) (road leading to atomic energy testing area is nonpublic
forum, even though civilians are occasionally allowed to use it),
the National Forests are traditionally open to any user seeking to
engage in appropriate recreational or other activities, including
those involving speech, worship or association.
308
See, e.g., Lyng v. Northwest Indian Cemetery Protective Ass'n, ---
U.S. ----, ----, 108 S.Ct. 1319, 1321-23, 99 L.Ed.2d 534 (1988)
(historic use of National Forest sites for Indian religious
purposes); United States v. Beam, 686 F.2d 252, 256-57 (5th
Cir.1982) (describing various groups' use of National Forest System
lands in Texas). Regulation of expressive activity in such a forum
must therefore be narrowly tailored as to time, place and manner,
and serve substantial governmental interests, as well as leave open
ample alternative channels of communication. Clark, supra, 468
U.S. at 293, 104 S.Ct. at 3069; Perry Education Association v.
Perry Local Educators' Ass'n, 460 U.S. 37, 45-46, 103 S.Ct. 948,
955, 74 L.Ed.2d 794 (1983). Any prior restraint on expressive
activity in such a context is particularly suspect. Perry, 460
U.S. at 45- 46, 103 S.Ct. at 955; Lovell v. Griffin, 303 U.S. 444,
451, 58 S.Ct. 666, 668-69, 82 L.Ed. 949 (1938).
[8] Although duly enacted laws are ordinarily presumed to be
constitutional, when a law infringes on the exercise of First
Amendment rights, its proponent bears the burden of establishing
its constitutionality. E.g., A.C.O.R.N. v. Municipality of Golden
Colo., 744 F.2d 739, 746 (10th Cir.1984); Rosen v. Port of
Portland, 641 F.2d 1243, 1246 (9th Cir.1981); Espinosa v. Rusk,
634 F.2d 477, 482 (10th Cir.1980), summarily aff'd, 456 U.S. 951,
102 S.Ct. 2025, 72 L.Ed.2d 477 (1982). "Broad prophylactic rules
in the area of free expression are suspect. Precision of
regulation is the touchstone...." Schaumberg v. Citizens for Better
Environment, 444 U.S. 620, 637, 100 S.Ct. 826, 836, 63 L.Ed.2d 73
(1980) (quoting NAACP v. Button, 371 U.S. 415, 438, 83 S.Ct. 328,
340-41, 9 L.Ed.2d 405 (1963)).
[9] In this light, the explicit regulatory distinction, between
expressive activity and all other forms of activity, appears to be
in and of itself, an invidious classification by the government,
singling out for special treatment the contemplated exercise of
free speech, worship, or association. Perhaps most importantly, the
facial distinction between expression and other activity "may have
the effect of curtailing the freedom to associate [which] is
subject to the closest scrutiny," NAACP v. Alabama, 357 U.S. 449,
460-61, 78 S.Ct. 1163, 1171, 2 L.Ed.2d 1488 (1958), by burdening
associations planned for expression of views with special
requirements not imposed elsewhere. Further, the government is
free, under the regulations, to find that a proposed event will be
"for the purposes of expression or exchange of views or judgments,"
36 C.F.R. § 251.50(1), without any apparent limitation on its
discretion. As noted by defendants in their objections, it is the
very existence of such power to discriminate, on the basis of a
person's expression of views or association with others, which may
render a regulation unconstitutional. Kramer v. Price, 712 F.2d
174, 177 (1983), vacated as moot, 723 F.2d 1164 (5th Cir.1984).
Although it carries a heavy burden to do so, the government has
made no effort to explain or to justify why First Amendment
activities are viewed differently under the regulations from other
forms of activity, or to prove that the exercise of such rights
will not be treated differently from other forms of activity. It
follows that the classification system established by the
regulations, which on its face singles out expressive conduct and
requires that such conduct be treated differently from other
activity, is, in itself, invalid under the First Amendment.
Beyond the fact that the structure of the regulatory scheme targets
expressive activity, the regulations do not establish sufficiently
precise standards concerning the denial or approval of permit
applications where expression is concerned. In circumstances, such
as these, where the government requires that a permit or license be
obtained before a group of persons may gather to engage in
expressive activity, the United States Supreme Court has stated
that "a law subjecting the exercise of First Amendment freedoms to
the prior restraint of a license, without narrow, objective, and
definite standards to guide the licensing authority, is
unconstitutional." Shuttlesworth
309
v. City of Birmingham, 394 U.S. 147, 150-51, 89 S.Ct. 935, 938, 22
L.Ed.2d 162 (1969). The constitutional problem with standardless
discretion, to approve or deny a permit affecting expressive
activity, lies in the fact that such a law "creates a threat of
censorship that by its very existence chills free speech."
A.C.O.R.N., supra, 744 F.2d at 746. Indeed, although not a ground
for the court's holding, see, supra, n. 2, the record herein and
other cases reveal cause for concern about the Forest Service's
motive in seeking to enforce the permit regulation against this
particular group of defendants. See United States v. Beam, 686
F.2d 252, 256-57 & n. 6, n. 7 (5th Cir.1982) (relating officials'
testimony that special use permits frequently have not been
required of other kinds of group events in Texas in recent years,
and that few prosecutions have been undertaken against groups for
failing to obtain a permit).
As is well known, the amount of discretion vested in authorities to
grant or deny permits for expressive activity, on the basis of
vague or even non- existent criteria, has frequently resulted in
invalidation of a statute or regulation under the prior restraint
doctrine. See, e.g., Schaumberg, 444 U.S. at 640, 100 S.Ct. at 838
(Rehnquist, J., dissenting) (reviewing cases); Hynes v. Mayor of
Oradell, 425 U.S. 610, 96 S.Ct. 1755, 48 L.Ed.2d 243 (1976);
Shuttlesworth, 394 U.S. at 151 & n. 2, 89 S.Ct. at 938 & n. 2
(citing cases); Fernandes v. Limmer, 663 F.2d 619, 628 (5th
Cir.1981), cert. dismissed, 458 U.S. 1124, 103 S.Ct. 5, 73 L.Ed.2d
1395 (1982). In Shuttlesworth, for example, a city ordinance
required officials to grant a permit for a parade, procession, or
demonstration in city streets, unless in their "judgment the public
welfare, peace, safety, health, decency, good order, morals or
convenience require that it be denied." 394 U.S. at 149-50. The
Supreme Court held that the ordinance, "as it was written,
conferred upon the City Commission virtually unbridled and absolute
power to prohibit any 'parade,' 'procession,' or 'demonstration' on
the city's streets or public ways. For in deciding whether or not
to withhold a permit, the members of the Commission were to be
guided only by their own ideas of 'public welfare, peace, safety,
health, decency, good order, morals or convenience.' " Id., 394
U.S. at 150, 89 S.Ct. at 938.
In a similar vein, the United States Court of Appeals for the Fifth
Circuit has found that a regulatory scheme concerning canvassing
and solicitation at the Dallas-Fort Worth Airport was
unconstitutional where it vested the airport director with
discretion to deny a permit "when there is good reason to believe
that the granting of the permit will result in a direct and
immediate danger or hazard to the public security, health, safety
or welfare." Fernandes, supra, 663 F.2d at 631. In the Fifth
Circuit's view, this standard of "good reason" for denial of a
permit "is indefinite and does not comport with the constitutional
requirement that discretion in public officials be specifically and
narrowly circumscribed. A before-the-fact determination as to the
harmful consequences of an applicant's speech is by this ordinance
made a subjective judgment call in the total discretion of the
Director. This type of unbridled discretion has been condemned
time and time again by the Supreme Court." Id.
Fed. Supp. Continued
Case Listing --- Proposition One ---- Peace Park