Boardley v. United States Department of the Interior

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 13, 2010 Decided August 6, 2010

No. 09-5176

MICHAEL BOARDLEY,
APPELLANT

v.

UNITED STATES DEPARTMENT OF THE INTERIOR, ET AL.,
APPELLEES

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.
 2
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
 3
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
 4
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

1
Section 2.52 includes two additional grounds for denying a
permit: “The location applied for has not been designated as
available for the sale or distribution of printed matter” or “[t]he
activity would constitute a violation of an applicable law or
regulation.” 36 C.F.R. § 2.52(c).
 5
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

2
The record does not disclose whether Boardley was ordered to
obtain a “[p]ublic assemblies, meetings” permit, 36 C.F.R. § 2.51,
or a permit for the “[s]ale or distribution of printed matter,” id.
§ 2.52. See Compl. ¶ 26 (referring generally to a “free speech
permit”). Conceivably, Boardley ran afoul of both regulations
because he engaged in the “distribution of printed matter” by
handing out the gospel tracts, 36 C.F.R. § 2.52(a), and participated
in a “[p]ublic assembl[y], meeting[], [or] gathering[]” by
congregating with his associates in the same location of the park to
convey his religious views, id. § 2.51(a). In addition, Boardley
alleges that he and at least one of his associates “desire[] to return
to Mt. Rushmore to exercise [their] First Amendment rights . . . .”
Compl. ¶ 41; see id. ¶ 55. In any event, the government has not
argued that Boardley lacks standing to challenge either of these
regulations, and we conclude such an argument would be without
merit.
 6
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
(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 (citations omitted).
 7

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 (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 (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 (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 every type of
Government property without regard to the nature of the
property or to the disruption that might be caused by the
speaker’s activities.” Cornelius, 473 U.S. at 799–800.
Rather, the extent of scrutiny given to a regulation of
 8
speech—in effect, how we examine the directness with which
it promotes the government’s goals and the degree to which it
burdens speech—depends on whether the regulation applies
in a public or nonpublic forum. “Traditional public fora are
those places which by long tradition or by government fiat
have been devoted to assembly and debate.” Id. at 802
(internal quotation marks omitted). Another type of public
forum is the “designated public forum,” which exists when
“government property that has not traditionally been regarded
as a public forum is intentionally opened up for that purpose.”
Pleasant Grove City v. Summum, 129 S. Ct. 1125, 1132
(2009). A nonpublic forum is by contradistinction “[p]ublic
property which is not by tradition or designation a forum for
public communication.” Perry Educ. Ass’n v. Perry Local
Educators’ Ass’n, 460 U.S. 37, 46 (1983).

Boardley contends all national parks are traditional public
forums. As support for this proposition, he argues the
Supreme Court repeatedly has stated that “parks” are
quintessential examples of traditional public forums. This
premise is unassailable, see, e.g., Christian Legal Soc’y
Chapter of the Univ. of Cal. v. Martinez, No. 08-1371, slip op.
at 12 n.11 (U.S. June 28, 2010) (referring to “traditional
public forums, such as . . . parks”); Pleasant Grove City, 129
S. Ct. at 1129 (noting “a park is a traditional public forum”),
but Boardley’s conclusion does not follow. The protections
of the First Amendment do not rise or fall depending on the
characterization ascribed to a forum by the government.
Mount Rushmore does not become a public forum merely by
being called a “national park” any more than it would be
transformed into a nonpublic forum if it were labeled a
“museum.” The dispositive question is not what the forum is
called, but what purpose it serves, either by tradition or
specific designation. What makes a park a traditional public
forum is not its grass and trees, but the fact that it has
 9
“immemorially been held in trust for the use of the public and,
time out of mind, ha[s] been used for purposes of assembly,
communicating thoughts between citizens, and discussing
public questions.” Perry Educ. Ass’n, 460 U.S. at 45 (internal
quotation marks omitted); cf. United States v. Kokinda, 497
U.S. 720, 727 (1990) (plurality) (cautioning that “[t]he mere
physical characteristics of the property cannot dictate forum
analysis” and holding that sidewalk abutting a Post Office
was not a public forum). Thus, to establish that a national
park (in whole or part) is a traditional public forum, Boardley
must show that, like a typical municipal park, it has been held
open by the government for the purpose of public discourse.

The record before this court is woefully inadequate to
determine the forum status of the hundreds of national parks
governed by the NPS regulations. Common sense tells us
they are not all identical. See United States v. Doe, 968 F.2d
86, 90 (D.C. Cir. 1992) (“Th[e] [First Amendment] test . . .
must be applied in a realistic manner which takes into account
the nature and traditional uses of the particular park involved.
Lafayette Park is not Okefenokee National Wildlife Refuge,
even if both are under the Park Service’s supervision.”).
Presumably, many national parks include areas—even large
areas, such as a vast wilderness preserve—which never have
been dedicated to free expression and public assembly, would
be clearly incompatible with such use, and would therefore be
classified as nonpublic forums. But at the same time, many
national parks undoubtedly include areas that meet the
definition of traditional public forums. See, e.g., ISKCON of
Potomac, Inc. v. Kennedy, 61 F.3d 949, 954 (D.C. Cir. 1995)
(“The Park Service concedes, as it must, that the Mall is a
traditional public forum for purposes of the First
Amendment.”). This is a fact-intensive question which
cannot be answered in the absence of evidentiary
submissions. “As heretofore emphasized, the decision as to
 10
whether a forum is public usually invokes a factual inquiry.
The forum doctrine itself is not a taxonomy of ideal types; it
is virtually impossible in most cases to identify a public forum
by legal inquiry alone.” Stewart v. Dist. of Columbia Armory
Bd., 863 F.2d 1013, 1018 (D.C. Cir. 1988) (remanding to
district court to develop a factual record on forum status).
Yet, the record on this appeal gives no hint as to the history
and tradition, or lack thereof, of expressive activities in the
various national parks.

Fortunately, we have a basis for resolving this appeal
without deciding the forum status of all 391 national parks.
The government concedes the “free speech areas” made
available within national parks pursuant to subsections (e) of
the NPS regulations are “designated public forums.” See
Appellees’ Br. at 15–16; see also 36 C.F.R. §§ 2.51(e),
2.52(e). These areas are subject to the same permit
requirement as all other locations within the national parks.
See 36 C.F.R. §§ 2.51(a), 2.52(a) (prohibiting specified
expressive activities in the absence of a permit anywhere in a
national park). Thus, at least with respect to these “free
speech areas,” the NPS regulations must be analyzed as
restrictions on speech in public forums, and we need not
(indeed, cannot) decide whether the same analysis would
apply to the diverse range of other areas within the national
parks.3 Having determined that the NPS regulations target

3
Of course, some or all of these “free speech areas” might be
traditional public forums anyway. In accepting the government’s
concession that these areas are designated public forums, we do not
imply that if they had not been so designated they would be
nonpublic forums, or that the government can simply revoke their
designation and thereby alter their forum status. Nor do we suggest
that these are the only public forums within the national parks; they
are simply the only ones cognizable on the sparse record before us.
 11
protected “speech,” and that these restrictions apply in public
forums, we proceed to consider whether they “satisfy the
requisite standard.” Cornelius, 473 U.S. at 797.

B

“[T]he core abuse against which [the First Amendment]
was directed was the scheme of licensing laws implemented
by the monarch and Parliament to contain the ‘evils’ of the
printing press in 16th- and 17-century England.” Thomas v.
Chi. Park Dist., 534 U.S. 316, 320 (2002). Thus, “[a]ny
system of prior restraints of expression . . . bear[s] a heavy
presumption against its constitutional validity.” Bantam
Books, Inc. v. Sullivan, 372 U.S. 58, 70 (1963). Regulatory
schemes “conditioning expression on a licensing body’s prior
approval of content ‘present[] peculiar dangers to
constitutionally protected speech’” and require “extraordinary
procedural safeguards” in order to survive constitutional
scrutiny. Thomas, 534 U.S. at 321, 323 (quoting Freedman v.
Maryland, 380 U.S. 51, 57 (1965)). However, “a content-
neutral permit scheme regulating speech in a public forum . . .
differs toto coelo” from a “licensing standard which gives an
official authority to censor the content of a speech.” Id. at
322 (internal quotation marks omitted). Because
“[r]egulations of the use of a public forum that ensure the
safety and convenience of the people” do not raise the same
kinds of “censorship concerns” as content-based prior
restraints, their presumption of invalidity is more easily
rebutted. Id. at 323.

Thus, in assessing the constitutionality of a prior
restraint, it must be determined at the outset whether the
regulation is content-based or content-neutral. This
determination is critical, not because it might end the inquiry,
but because it will direct its path. Here, the NPS regulations
 12
are indisputably content-neutral on their face. They prohibit
certain forms of expressive conduct—public assemblies,
meetings, gatherings, demonstrations, parades, and the sale or
distribution of printed matter—in the absence of a permit,
regardless of the message the speaker wishes to convey. 36
C.F.R. §§ 2.51(a), 2.52(a). Nor is there any evidence the NPS
was motivated to adopt these regulations by its agreement
with or hostility toward any particular message or speaker.
See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642
(1994).

Content-neutral restrictions on the time, place, or manner
of speech in a public forum are analyzed under a familiar
multipart test: First, the regulations may not delegate overly
broad licensing discretion to a government official. Second,
the scheme must be narrowly tailored to serve a significant
governmental interest. And third, it must leave open ample
alternatives for communication. See Forsyth County, 505
U.S. at 130.4

1

Even a content-neutral licensing scheme may raise
significant censorship concerns if it vests government
officials with unrestricted freedom to decide who qualifies for
a permit and who does not. “It is offensive—not only to the
values protected by the First Amendment, but to the very
notion of a free society—that in the context of everyday
public discourse a citizen must first inform the government of
her desire to speak to her neighbors and then obtain a permit

4
The scheme also “must not be based on the content of the
message,” id., but of course this requirement is satisfied since the
content-neutrality of the regulations is the precondition that led us
to the time, place, or manner test in the first place.
 13
to do so.” Watchtower Bible, 536 U.S. at 165–66. Thus, such
schemes must “contain adequate standards to guide the
official’s decision and render it subject to effective judicial
review,” thereby eliminating the “risk that he will favor or
disfavor speech based on its content.” Thomas, 534 U.S. at
323. Compare id. at 324 (upholding scheme that provided
several “reasonably specific and objective” grounds for
denying a permit and did “not leave the decision to the whim
of the administrator”) (internal quotation marks omitted), with
Forsyth County, 505 U.S. at 133 (striking down scheme that
contained “no articulated standards” and did “not require[] . . .
rel[iance] on any objective factors”), and City of Lakewood v.
Plain Dealer Publ’g Co., 486 U.S. 750, 769 (1988) (plurality)
(striking down licensing scheme that allowed officials to
subject permit applications to “such other terms and
conditions deemed necessary and reasonable by the Mayor”
because “the face of the ordinance itself contain[ed] no
explicit limits on the mayor’s discretion”).

Boardley argues the NPS regulations vest government
officials with overly broad discretion, allowing a permit to be
denied if “[i]t reasonably appears that the event will present a
clear and present danger to the public health or safety.” 36
C.F.R. §§ 2.51(c)(2), 2.52(c)(2). Before the Supreme Court’s
decision in Thomas, this argument might have been plausible.
But in Thomas, the Court upheld a licensing scheme for
Chicago parks that allowed a permit to be denied if the
intended activity “would present an unreasonable danger to
[public] health or safety.” Thomas, 534 U.S. at 318 n.1, 324.
Boardley distinguishes the NPS regulations because they
allow NPS officials to decide whether the proposed event
“reasonably appears” to present a public danger, as opposed
to deciding simply whether the event “would present” such
danger. See Tr. of Oral Arg. at 12–17. If this is indeed a
distinction, it is one wholly without constitutional
 14
significance. An official tasked with forecasting whether a
proposed event might endanger the health or safety of the
public must necessarily make a predictive judgment based on
the facts as she knows them and her expertise in the field.
Few licensing schemes would survive constitutional scrutiny
if certainty were a prerequisite. It is not fatal to the NPS
regulations that they endow park officials with some measure
of discretion. The “clear and present danger” standard is
sufficiently unambiguous and objective to guard against the
possibility of it serving as a backdoor artifice for content-
based censorship. Of course, a future as-applied challenge
could argue that the NPS’s denial of a permit on “clear and
present danger” grounds was, in fact, pretext for content-
based discrimination. But Thomas forecloses this argument
as a facial matter.

Next, Boardley contends the NPS regulations vest park
officials with overly broad discretion because—although they
require permits to be granted or denied “without unreasonable
delay”—they set no specific time period. Most circuits have
held content-neutral licensing schemes need not contain
explicit timeframes for processing permit applications. See
H.D.V.-Greektown, LLC v. City of Detroit, 568 F.3d 609, 624
(6th Cir. 2009) (rejecting argument “that content-neutral
licensing ordinances [must] contain a brief, specified time
limit”); S. Or. Barter Fair v. Jackson County, 372 F.3d 1128,
1138 (9th Cir. 2004) (“Because it is content-neutral, the Act
need not contain . . . a deadline for consideration by the
governing body.”); Granite State Outdoor Adver., Inc. v. City
of St. Petersburg, 348 F.3d 1278, 1282 n.6 (11th Cir. 2003)
(“[W]e . . . hold time limits are not per se required when the
licensing scheme at issue is content-neutral.”); Griffin v. Sec’y
of Veterans Affairs, 288 F.3d 1309, 1328 (Fed. Cir. 2002)
(same). These courts relied on Thomas’s holding that
content-neutral licensing schemes need not contain the
 15
“extraordinary procedural safeguards” imposed on content-
based schemes. Thomas, 534 U.S. at 323. Compare
Freedman, 380 U.S. at 59 (holding that licensing schemes
must contain a “specified brief period” for officials to decide
whether or not to issue a permit), with Thomas, 534 U.S. at
322–23 (explaining that Freedman applies only to content-
based censorship regimes).

Boardley focuses on United States v. Frandsen, where
the Eleventh Circuit held one of the NPS regulations at issue
here (36 C.F.R. § 2.51) to be unconstitutional because the
“without unreasonable delay” standard “fail[ed] adequately to
confine the time within which the decision maker must act.”
212 F.3d 1231, 1240 (11th Cir. 2000). But this decision lacks
persuasive force for two reasons: first, it relied on Freedman
and predated the Supreme Court’s decision in Thomas, which
clarified that Freedman does not apply to content-neutral
schemes; and second, the Eleventh Circuit itself declined to
follow Frandsen in its post-Thomas decision in Granite State
Outdoor Advertising, cited above. Boardley points us to no
post-Thomas decision holding that a content-neutral licensing
scheme must contain an explicit timeframe for official action
in order to withstand constitutional scrutiny.

We find that the “without unreasonable delay” standard is
“adequate . . . to guide [a park] official’s decision and render
it subject to effective judicial review.” Thomas, 534 U.S. at
323. For one, this standard places the NPS regulations on
significantly firmer ground than the licensing schemes upheld
by other circuits, which contained no timeliness standard at
all. It also takes into account the fact that not all applications
can, or should, be processed with equal speed; what
constitutes “unreasonable delay” could vary depending on
such factors as the complexity of the application and the
 16
resources of the park to which it is directed.5 In any event, as
the district court found, all national parks “appear to have”
adopted “short and definite deadlines” of “between three and
ten days.” Boardley, 605 F. Supp. 2d at 17. Given that the
scheme upheld in Thomas required applications to be
processed within fourteen days (and could be extended an
additional fourteen days), see 534 U.S. at 318, we have no
trouble finding deadlines between three and ten days to be
reasonable. This case does not require us to proclaim what
the outer limit might be. Lastly, we are sensitive to
Boardley’s concern that park officials could engage in
content-based discrimination by “sit[ting] on a speaker’s
application without granting or denying it and without
explaining the basis for delay.” Appellant’s Br. at 43. But
while this sort of abuse likely would form the basis of a
successful as-applied challenge, here we need not go beyond
the regulations’ facial requirements to speculate about
hypothetical cases.

2

Boardley argues the NPS regulations are not a narrowly
tailored means of achieving the government’s substantial
interests. A content-neutral time, place, or manner regulation
is narrowly tailored “so long as the . . . regulation promotes a

5
The government points us to a memorandum from the Director of
the Department of the Interior to the Regional Directors and
Superintendents of the national parks. It states, “NPS Management
Policies ¶ 8.6.3 (2006) . . . provides that a permit request under 36
CFR § 2.51 will be issued or denied within two business days after
receipt of a proper application.” Oddly, the actual Management
Policies do not appear to be part of our record. It is unclear what
effect, if any, park superintendents have given to this memorandum,
and we therefore decline to rely on it.
 17
substantial government interest that would be achieved less
effectively absent the regulation.” Ward v. Rock Against
Racism, 491 U.S. 781, 799 (1989) (internal quotation marks
omitted). But while the regulation “need not be the least
restrictive or least intrusive means,” the regulation may not
“burden substantially more speech than is necessary” to
achieve the government’s substantial interests. Id. at 798–99;
see also Frisby v. Schultz, 487 U.S. 474, 485 (1988) (noting
that a content-neutral ordinance banning picketing in front of
private residences “is narrowly tailored if it targets and
eliminates no more than the exact source of the ‘evil’ it seeks
to remedy”); City of Renton v. Playtime Theatres, Inc., 475
U.S. 41, 52 (1986) (upholding a content-neutral zoning
ordinance because it was “‘narrowly tailored’ to affect only
that category of [adult] theaters shown to produce the
unwanted secondary effects”). Although a content-neutral
restriction will not be struck down “simply because there is
some imaginable alternative that might be less burdensome on
speech,” Ward, 491 U.S. at 797 (internal quotation marks
omitted), the existence of “numerous and obvious less-
burdensome alternatives . . . is certainly a relevant
consideration in determining whether the ‘fit’ between ends
and means is reasonable,” City of Cincinnati v. Discovery
Network, Inc., 507 U.S. 410, 417 n.13 (1993). Thus, “the
court must closely scrutinize the regulation to determine if it
indeed promotes the Government’s purposes in more than a
speculative way.” Cmty. for Creative Non-Violence v.
Kerrigan, 865 F.2d 382, 390 (D.C. Cir. 1989).

The government asserts the NPS regulations further its
interests in “protect[ing] the national parks’ natural and
cultural resources; protect[ing] park facilities and property
from damage; ensur[ing] that locations are not populated
beyond their capacity; protect[ing] visitors to the parks;
avoid[ing] interference with the parks’ activities and the
 18
operation of park facilities; and preserv[ing] peace and
tranquility in the parks.” Appellees’ Br. at 25. Boardley does
not appear to question the substantiality of these interests, and
indeed, he would have little basis for doing so. See Clark v.
Cmty. for Creative Non-Violence, 468 U.S. 288, 296 (1984)
(finding a “substantial interest in maintaining the parks in
[D.C.] in an attractive and intact condition”); Heffron v. Int’l
Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650
(1981) (“[I]t is clear that [the government’s] interest in
protecting the safety and convenience of persons using a
public forum is a valid governmental objective”) (internal
quotation marks omitted); Henderson v. Lujan, 964 F.2d
1179, 1184 (D.C. Cir. 1992) (finding a “substantial interest . .
. [in] promot[ing] an atmosphere of calm, tranquility and
reverence in the vicinity of” a war memorial) (internal
quotation marks omitted); White House Vigil for ERA Comm.
v. Clark, 746 F.2d 1518, 1528 (D.C. Cir. 1984) (“[T]he
government has a substantial interest in the preservation and
enhancement of the human environment; aesthetics are a
proper focus of governmental regulation.”) (footnote omitted).

Boardley argues the NPS regulations are not narrowly
tailored to the advancement of these interests because the
permit requirement applies not only to large groups, but also
to small groups and even lone individuals. His argument
draws considerable support from this and other circuits. The
Sixth Circuit, for instance, has found that “[p]ermit schemes
and advance notice requirements that potentially apply to
small groups are nearly always overly broad and lack narrow
tailoring.” Am.-Arab Anti-Discrimination Comm. v. City of
Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down
licensing scheme for public parades because the city’s
“significant interest in crowd and traffic control, property
maintenance, and protection of the public welfare is not
advanced by the application of the [o]rdinance to small
 19
groups”). The Fourth Circuit reached the same conclusion in
Cox v. City of Charleston, where a lone protestor challenged
an ordinance barring “any person” from participating in “any
parade, meeting, exhibition, assembly or procession . . . on the
streets or sidewalks of the city” without a permit. 416 F.3d
281, 283 (4th Cir. 2005) (internal quotation marks omitted).
The court held that the “application of the [o]rdinance to
groups as small as two or three renders it constitutionally
infirm” because the city failed to “establish[] why burdening
such expression is necessary to facilitate its interest in
keeping its streets and sidewalks safe, orderly, and
accessible.” Id. at 285–86. The Ninth Circuit relied on
similar grounds in striking down an ordinance requiring street
performers at a public park to obtain permits before
performing. See Berger v. City of Seattle, 569 F.3d 1029,
1035 (9th Cir. 2009) (en banc). The court explained:

[T]he Supreme Court has consistently struck
down permitting systems that apply to
individual speakers—as opposed to large
groups—in the . . . context [of] solicitation of
private homes. . . . Although the Supreme
Court has not addressed the validity of single-
speaker permitting requirements for speech in
a public forum, it stands to reason that such
requirements would be at least as
constitutionally suspect when applied to
speech in a public park, where a speaker’s First
Amendment protections reach their zenith,
than when applied to speech on a citizen’s
doorstep, where substantial privacy interests
exist. It is therefore not surprising that we and
almost every other circuit to have considered
the issue have refused to uphold registration
 20
requirements that apply to individual speakers
or small groups in a public forum.

Id. at 1038–39 (citations omitted); see also Knowles v. City of
Waco, 462 F.3d 430, 436 (5th Cir. 2006) (“Other circuits have
held, and we concur, that ordinances requiring a permit for
demonstrations by a handful of people are not narrowly
tailored to serve a significant government interest.”).

Our own precedent points in the same direction. In
Community for Creative Non-Violence v. Turner, we held
unconstitutional a Washington Metropolitan Area Transit
Authority (WMATA) regulation requiring individuals to
obtain permits before engaging in “free speech activities”
within subway stations. 893 F.2d 1387, 1388 (D.C. Cir.
1990). After finding that the stations were public forums, we
held the “permit requirement fails the ‘narrow tailoring’
inquiry.” Id. at 1392. We agreed WMATA’s interest in
promoting safe and convenient access to transportation was
substantial, but concluded the permit requirement swept too
broadly: “While the [r]egulation arguably eliminates the
‘sources of evil’ that allegedly threaten WMATA’s ability to
provide a safe and efficient transportation system, it does so at
too high a cost, namely, by significantly restricting a
substantial quantity of speech that does not impede [its]
permissible goals.” Id. A crucial problem with the regulation
was that it applied to groups of all sizes, even when “two or
more individuals speaking or otherwise proselytizing . . .
would not interfere meaningfully with WMATA’s asserted
interests.” Id.

We are not persuaded by the district court’s attempt to
distinguish these cases on the ground that the NPS regulations
at issue here
 21
do not cover city streets, or subway entrances,
or the local public park; they cover places of
immense historical significance . . . and great
natural beauty . . . . Unlike people walking in
the city center or entering the subway, visitors
to a national park expect a peaceful and
tranquil environment, and the government has
a legitimate interest in providing that
experience to them. Even a small
demonstration, or a lone pamphleteer, can
disrupt that experience, particularly in some of
the smaller parks.

Boardley, 605 F. Supp. 2d at 18 (citations omitted). This
analysis amounts to an argument that the national parks are
not public forums. But as discussed above, without deciding
the forum status of every part of every national park, it is at
least clear that the locations designated as “free speech areas”
pursuant to subsections (e) of the regulations are public
forums. See 36 C.F.R. §§ 2.51(e), 2.52(e). Therefore, by
definition, these are not areas where the government has a
paramount interest in maintaining a “peaceful and tranquil
environment,” Boardley, 605 F. Supp. 2d at 18. See Doe, 968
F.2d at 89 (rejecting governmental interest in tranquility at
Lafayette Park and noting that “the very concept of a situs
being designated as a ‘public forum’ for First Amendment
purposes presupposes that the situs has been used for
purposes of assembly, communicating thoughts between
citizens and discussing public questions”) (internal quotation
marks omitted). In fact, the NPS regulations expressly
provide that park superintendents may decline to designate a
location as a “free speech area” if expressive activities would
“[u]nreasonably impair the atmosphere of peace and
tranquility maintained in wilderness, natural, historic or
 22
commemorative zones.” 36 C.F.R. §§ 2.51(e)(2), 2.52(e)(2).6
Thus, within “free speech areas,” the government has
exceedingly little basis for hushing “lone pamphleteer[s],”
Boardley, 605 F. Supp. 2d at 18, in the name of peace and
tranquility.

Nor are the remainder of the government’s interests
substantially furthered by imposing the licensing requirement
on small groups and individuals. Restrictions on free speech
must “promote[] the Government’s purposes in more than a
speculative way.” Cmty. for Creative Non-Violence, 865 F.2d
at 390. It is not sufficient that a “regulation . . . contributes
marginally to [the government’s] interest.” Id. The
government asserts interests in preventing overcrowding,
protecting park facilities, protecting visitors, and avoiding
interference with park activities. See Appellees’ Br. at 25.
But why are individuals and members of small groups who
speak their minds more likely to cause overcrowding, damage
park property, harm visitors, or interfere with park programs
than people who prefer to keep quiet? See Lederman v.
United States, 291 F.3d 36, 45 (D.C. Cir. 2002) (“‘Freedom of
expression . . . would rest on a soft foundation indeed if
government could distinguish’ between demonstrators and
pedestrians on ‘a wholesale and categorical basis,’ without
providing evidence that demonstrators pose a greater risk to
identified government interests than do pedestrians.”)
(quoting Police Dep’t of Chi. v. Mosley, 408 U.S. 92, 101

6
We note that Boardley raises no challenge to subsections (e) of the
NPS regulations. 36 C.F.R. §§ 2.51(e), 2.52(e). In other words, he
does not argue that it is unconstitutional to confine specified
expressive activities to “free speech areas” and does not challenge
the grounds provided for declining to designate a location as a “free
speech area.” Rather, he attacks only the permit requirement. Id.
§§ 2.51(a), 2.52(a).
 23
(1972)). We fail to see why an individual’s desire to be
communicative is a strong proxy for the likelihood that she
will pose a threat to park security or accessibility. No doubt
some individuals and small groups will cause these problems,
but many will not; and the government has not explained why
those engaged in free expression are more likely to be
problematic than anyone else. “[T]he 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.” Id. at 44 (internal quotation
marks omitted).

The fit between means and ends is far more precise when
the NPS regulations are applied to large groups. The most
important function of a permit application is to provide park
officials with the forewarning necessary to coordinate
multiple events, assemble proper security, and direct groups
to a place and time where interference with park visitors and
programs will be minimized. These needs arise routinely with
large-scale events, but only rarely with small ones. For
example, the government argues that it requires advance
notice to determine whether to summon a Special Events and
Tactical Team (SETT). Appellees’ Br. at 36. But according
to the Chief Park Ranger for Mount Rushmore National
Memorial, SETTs are “[m]ost often” deployed for “major
events” such as “large scale demonstrations; presidential,
other VIP, or dignitary visits; major disasters; special
ceremonies requiring crowd control; special law enforcement
investigations and emergency law enforcement operations.”
Third Decl. of Mike Pflaum ¶ 24. Similarly, the NPS’s
“potential need to arrange for additional parking, traffic
control, sanitary facilities, water fountains, and/or first aid
stations,” Appellees’ Br. at 36–37, will arise much more
frequently when a large group plans to hold an event than
when a few people wish to speak freely or hand out
 24
pamphlets. Imposing the permit requirement on individuals
and small groups promotes the government’s need for
forewarning only marginally, if at all.

To be sure, the government suggests examples of small
groups that “can attract a significant crowd or otherwise strain
the resources of a park”—such as the “Westboro Baptist
Church,” a “neo-Nazi white supremacist group,” or a “small
group of Ku Klux Klan members.” Id. at 41–42. But the
government has failed to show that most individuals and small
groups who engage in free speech pose such problems. In
order to be narrowly tailored, the regulations must “target[]
and eliminate[] no more than the exact source of the ‘evil’
[they] seek to remedy.” Frisby, 487 U.S. at 485; see Initiative
& Referendum Inst. v. U.S. Postal Serv., 417 F.3d 1299,
1307–08 (D.C. Cir. 2005) (holding that ban on signature
solicitation on Postal Service sidewalks was not narrowly
tailored because “the problems the government identifies arise
only occasionally” and “much solicitation . . . is not
disruptive”). The NPS regulations target much more than
necessary. If a Girl Scouts leader musters her scouts onto a
pavilion in a “free speech area” of Glacier National Park and
proceeds to lecture them about the effects of global warming,
she will have conducted both a “meeting” and a “gathering”
(perhaps also an “assembly”) for which a permit would have
been required. 36 C.F.R. § 2.51(a). An elementary school
teacher who leads eight students on an excursion to the
Canyon de Chelly National Monument and, within a “free
speech area,” shows off her best imitation of a traditional
Navajo dance presumably has hosted an unlawful
“demonstration.” Id. If a believer in Creationism visits the
Hagerman Fossil Beds National 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. Id. § 2.52(a). Under a plain reading
 25
of the NPS regulations, 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. Thus, it is not
dispositive that there may be a few circumstances in which
the permit requirement could validly be applied to small
groups. Even if application of the permit requirement to
individuals and small groups “arguably eliminates [some]
‘sources of evil’ that allegedly threaten” the government’s
various interests, “it does so at too high a cost, namely, by
significantly restricting a substantial quantity of speech that
does not impede [the NPS’s] permissible goals.” Turner, 893
F.2d at 1392.

Our conclusion is reinforced by the fact that the NPS
regulations are far more burdensome when applied to
individuals and small groups than when applied to large
groups. For one, the permit requirement effectively forbids
spontaneous speech. See Watchtower Bible, 536 U.S. at 167–
68. Large groups, of course, generally cannot speak
spontaneously. Obligating a large group to apply for a permit
simply creates one more step in the already-lengthy process of
planning a large-scale event. Individuals and small groups,
by contrast, frequently wish to speak off the cuff, in response
to unexpected events or unforeseen stimuli. For example, if
an individual comes upon a (duly licensed) antiwar protest at
a national park and wishes to don a “support the troops” pin in
response, must he first apply for a permit or otherwise risk
being penalized for engaging in an unlicensed
“demonstration”? See 36 C.F.R. § 2.51(a). This is a major
deprivation of free speech, and it falls almost exclusively on
individuals and small groups. See Shuttlesworth v. City of
Birmingham, 394 U.S. 147, 163 (1969) (Harlan, J.,
concurring) (“[W]hen an event occurs, it is often necessary to
have one’s voice heard promptly, if it is to be considered at
all.”).
 26

Secondly, the permit requirement infringes on
individuals’ ability to engage in anonymous speech. A
speaker’s “decision to remain anonymous . . . is an aspect of
the freedom of speech protected by the First Amendment.”
McIntyre v. Ohio Elections Comm’n, 514 U.S. 334, 342
(1995). This is not to say that the government never can
establish a justification for mandating the disclosure of
identifying information, see, e.g., Doe v. Reed, No. 09-559,
slip op. at 8–10 (U.S. June 24, 2010),7 but only that the
burden of such disclosure falls harder on individuals and
small groups than on large groups. Whereas members of
large groups easily can remain anonymous—except, perhaps,
for the leader who fills out the permit application—a lone
individual has no choice but to put her own name on the
application. Moreover, common experience reveals that large
groups tend to seek as much publicity as possible; anonymity
is more often prized by those operating outside an organized
group. In sum, the permit requirement imposes substantial
burdens on individuals and small groups—burdens which the
government has failed to justify. Because “the means chosen
are . . . substantially broader than necessary to achieve the
government’s interest,” Ward, 491 U.S. at 800, the NPS
regulations are overbroad and not narrowly tailored.

Finally, we note that the government has myriad less
intrusive means of achieving its interests. See City of

7
Indeed, as Boardley recognizes, see Appellant’s Br. at 34–35, with
respect to large groups, the limited disclosure required by the NPS
regulations is justified by the government’s substantial need to
engage in communication with group leaders—to coordinate the
timing and location of multiple events, to ensure adequate security
is in place, and to assess financial responsibility for damage and
other incidental expenses.
 27
Cincinnati, 507 U.S. at 417 n.13 (noting that the existence of
“numerous and obvious less-burdensome alternatives . . . is
certainly a relevant consideration in determining whether the
‘fit’ between ends and means is reasonable”). It could, for
example, promulgate separate regulations for different
national parks, taking into account the vast differences in the
sizes and uses of the various parks. Instead of subjecting
individuals and small groups to a prior restraint on speech, the
NPS could simply prohibit and punish conduct that harasses
park visitors, interferes with official programs, or creates
security or accessibility hazards. Or, rather than employing
an identical prior restraint on speech no matter where it occurs
in a park, the NPS could craft distinct regulations for
wilderness areas, visitors centers, parking lots, and so forth.
Whether any of these options would withstand constitutional
scrutiny depends on the specifics, but they all surely would be
more narrowly tailored than the all-encompassing regulations
at hand.

3

Finally, a time, place, or manner regulation must “leave
open ample alternatives for communication.” Forsyth
County, 505 U.S. at 130. These alternatives must exist
“‘within the forum in question.’” Initiative & Referendum
Inst., 417 F.3d at 1310 (quoting Heffron, 452 U.S. at 655).
Thus, we can easily reject the government’s argument that
this requirement is satisfied because “[i]ndividuals can
distribute pamphlets or engage in permitless demonstrations
on other property near” the national parks. Appellees’ Br. at
44 (emphasis added). “[O]ne is not to have the exercise of his
liberty of expression in appropriate places abridged on the
plea that it may be exercised in some other place.” Reno v.
ACLU, 521 U.S. 844, 880 (1997) (internal quotation marks
omitted). This case is analogous to Turner, where we held
 28
that WMATA’s licensing scheme for speech in subway
stations failed to leave open ample alternatives for
communication:

[The] permit requirement completely excludes
those desiring to engage in organized free
speech activity . . . unless they have a permit.
There are no [subway station] areas not
covered by the permit requirement. Persons
desiring to engage in any organized free
speech activities in the . . . forum are subject to
the permit requirement; it does not regulate
only the volume, location, or duration of such
expression. There is no intra-forum
alternative.

893 F.2d at 1393.

These same problems plague the NPS regulations. As the
government conceded at oral argument, for someone who
wishes to distribute leaflets in a national park, there is no
lawful alternative to a permit. Tr. of Oral Arg. at 30–31. The
same is true for those desiring to host an assembly, meeting,
gathering, demonstration, or parade. See 36 C.F.R. § 2.51(a).
Given the breadth of these proscriptions, virtually anyone
engaging in any permitless expressive activity in a national
park risks a penalty. Thus, the NPS regulations not only lack
narrow tailoring, they fail to leave open ample intra-forum
alternatives for communication.

IV

Requiring individuals and small groups to obtain permits
before engaging in expressive activities within designated
“free speech areas” (and other public forums within national
 29
parks) violates the First Amendment. Neither party has
argued that we should sever the regulations in order to leave
part of them intact, and we perceive no basis for doing so.
And, of course, it is the prerogative of the agency (or
Congress) to decide whether to rewrite the regulations to
apply only to large groups, and to decide where to draw that
line. We have no choice but to hold the regulations
unconstitutional in their entirety. Accordingly, the judgment
of the district court is

Reversed.