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Free speech in national parks: Common sense prevails

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Gene Policinski
September 16, 2010

Anyone who has vacationed at a national park knows one of the real challenges is not to leave any necessities at home.


As we mark Constitution Day on Sept. 17, it’s worth noting that a federal appeals court recently decided that one of the things that automatically comes along with you is your constitutional right to free speech.


The U.S. Circuit Court of Appeals for the District of Columbia has ruled in favor of a Minnesota man who was stopped from handing out religious materials at Mount Rushmore National Memorial. But the decision will affect parts of all of our 391 national parks.


Ironically, Michael Boardley was in a designated “free-speech zone” at Mount Rushmore when he began offering his fliers. The National Park Service established the zones and required anyone using them to obtain a permit, citing safety and security as well as a goal of keeping the national parks true to their original purpose.


The appellate court decision Aug. 6 applied some common sense reasoning along with the law in balancing restrictions on speech and religious liberty against the expectation of relative solitude in a nature or history park.


First, the court decided that the same permit rules ought not to apply to individuals or small groups as apply to large demonstrations or gatherings. A lone individual such as Boardley, the court held, represents a much smaller danger to peace, safety and tranquility.


Second, the court noted “common sense tells us that (national parks) are not all identical” and that one rule probably won’t fit all. Although the court conceded it couldn’t evaluate the situation in every park from a First Amendment standpoint, it said the NPS-established “free-speech zones” did provide a common standard.


The ruling does not automatically throw open the vistas of every national park or monument to protesters and pamphleteers—but it does say that, at least within areas already set aside for such activities, requiring everyone to get a permit needlessly chills free speech.


Admitting that some people or groups may cause problems for an agency charged with maintaining the peace and tranquility of wilderness areas and such, the court said nonetheless that “many will not, and the government has not explained why those engaged in free expression are more likely to be problematic than anyone else.


“The Constitution does not tolerate regulations that, while serving their purported aims, prohibit a wide range of activities that do not interfere with the Government’s objectives,” the court said.


As for Park Service regulations that “target much more than necessary,” the D.C. Circuit cited some examples:


--“If a Girl Scout leader musters her Scouts onto a pavilion in a ‘free speech area’ and … proceeds to lecture them about the effects of global warming, she will have conducted both a ‘meeting’ and an ‘assembly’ for which a permit would have been required.”


—“An elementary school teacher who leads eight students on an excursion … and within a ‘free speech area’ shows off her best imitation of a traditional Navajo dance presumably has hosted an unlawful ‘demonstration’.”


—“If a believer in Creationism visits (a fossil bed monument) and, within a ‘free speech area,’ quietly hands out literature disputing the theory of evolution, he is guilty of ‘distribut[ing] … printed matter’ without a permit.”


The court also posed the question of whether it would violate the current rule if a person visiting a park came upon a permitted anti-war demonstration and then chose to put on a “Support the Troops” button.


“All of this speech is banned unless a permit is first acquired, even though none of it remotely threatens any of the government’s interests,” the court said.


In throwing out the current regulation but effectively inviting the government to rewrite one applying just to large groups, the court did not satisfy those who see parks as public forums where any speech or demonstration should be allowed without government review.


But the court’s decision does set out the idea that individuals or small groups, at least within free-speech zones, ought to have wide latitude to speak, be the speech spontaneous or planned, and even to speak anonymously if they wish, without having to identify themselves on a permit application.


At Mount Rushmore, I would think such common sense applied to freedom would bring a bit of a smile to the famous stone faces.


Gene Policinski is vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. E-mail: gpolicinski@fac.org.

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