United States v. Frandsen

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
___________________________ ELEVENTH CIRCUIT
MAY 25 2000
THOMAS K. KAHN
No. 98-2174 CLERK
___________________________

D.C. Docket No. 97-00076-MC-ORL-22

UNITED STATES OF AMERICA,
Plaintiff - Appellee,

versus

MARVIN FRANDSEN
BRYAN MORRIS,
Defendants - Appellants.

____________________________

Appeals from the United States District Court
for the Middle District of Florida
____________________________

(May 25, 2000)

Before TJOFLAT and CARNES, Circuit Judges, and GARWOOD*, Senior Circuit
Judge.

_________________
*Honorable William L. Garwood, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by
designation.
CARNES, Circuit Judge:
 This appeal presents us with the issue of the constitutionality of a federal

regulation, 36 C.F.R. § 2.51 (reprinted in appendix), which requires persons to obtain

a permit before making “public expressions of views” in national parks. Marvin

Frandsen and Bryan Morris (“defendants”) were arrested and convicted for protesting

without a permit at the Canaveral National Seashore (“the park”), a national park, in

violation of 36 C.F.R. § 1.6. They challenged on its face the constitutionality of 36

C.F.R. § 2.51, which required them to obtain a permit prior to their protest. For the

reasons set forth below, we hold that 36 C.F.R. § 2.51 is unconstitutional on its face,

and therefore, we reverse the defendant’s convictions.

I. BACKGROUND

Defendants Frandsen and Morris, along with a group of other protestors, were

charged with publicly assembling at the park without a permit in violation of 36

C.F.R. § 2.51.1 The government later amended the charge to cite as the provision

violated, 36 C.F.R. § 1.6(g)(1), which prohibits engaging in an activity requiring a

permit without first obtaining the permit.

The defendants consented to their petty offense trial being conducted before a

magistrate judge. In response to the charges, the defendants argued that 36 C.F.R. §

1
The defendants were protesting the “discrimination allegedly suffered by Naturist citizens at
the hands of Brevard County and the then-current Canaveral National Seashore administration.” See
Frandsen’s Brief at 6. A naturist is a person who “advocates a ‘clothing optional’ lifestyle.”
Naturist Soc., Inc. v. Fillyaw, 958 F.2d 1515, 1517 (11th Cir. 1992).

2
2.51, the regulation requiring them to obtain a permit prior to their protest, and 36

C.F.R. § 1.6(g)(1), the regulation prohibiting protesting without a permit, were

facially unconstitutional. They argued that the permit scheme violated the First

Amendment because it was a prior restraint on free speech, lacked the constitutionally

required procedural safeguards, and vested unbridled discretion in the government

officials administering it. The government argued that the permit scheme was a valid

time, place, or manner restriction on speech.

The magistrate judge concluded that the park was not a public forum because

the government had set it aside for recreational activity, and he applied a

reasonableness test in evaluating section 2.51. The magistrate judge then held that the

permit scheme provided an adequate restriction on the time the superintendent has to

decide whether to issue a permit because the regulation provides that, unless the

permit should be denied, the superintendent “shall” issue a permit “without

unreasonable delay.” Alternatively, the magistrate judge held that, if strict scrutiny

applied, the permit scheme was facially constitutional, citing United States v. Kistner,

68 F.3d 218 (8th Cir. 1995) (upholding 36 C.F.R. § 2.52(a)).

After the magistrate judge denied all the motions to dismiss, each of the

defendants pleaded guilty, but they reserved the right to appeal from the denial of the

motion to dismiss. The magistrate judge sentenced each of the defendants to pay a

3
fine of one dollar, but stayed that sentence pending appeal, and also ordered them to

pay a special assessment of ten dollars, which was not stayed. All of the defendants

appealed to the district court. Agreeing with the magistrate judge that 36 C.F.R. §

2.51 is not unconstitutional, the district court upheld the convictions.2 All of the

defendants appealed the district court’s decision to this Court. Finding that the notices

of appeal were not timely, we remanded the case to the district court for a

determination of excusable neglect. After the district court found that only Frandsen

and Morris had demonstrated excusable neglect, we entered an order that the appeal

could proceed only as to those two defendants.

On appeal, Frandsen and Morris contend that their convictions for protesting

without a permit in violation of 36 C.F.R. § 1.6 should be overturned, because the

regulation requiring them to obtain a permit, 36 C.F.R. § 2.51, is unconstitutional on

its face. Their primary contentions are as follows: (1) section 2.51 lacks the

procedural safeguards required for a prior restraint on speech, as set forth by the

Supreme Court in Freedman v. Maryland, 380 U.S. 51, 58-59, 85 S. Ct. 734, 739

(1965), and its progeny; (2) section 2.51 is overbroad and not narrowly tailored to

serve a compelling government interest because it covers “other public expressions

2
Neither the magistrate judge nor the district court ruled on the constitutionality of 36 C.F.R.
§ 1.6, which prohibits protesting without a permit in violation of 36 C.F.R. § 2.51.

4
of views;” and (3) section 2.51 grants unbridled discretion to the park superintendent

in deciding whether to grant a permit. We find it necessary to address only their first

contention.

II. DISCUSSION

Before we can reach the merits of Frandsen and Morris’ appeal, we must

determine whether a facial challenge is appropriate for the regulation at issue. A

facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a

statute or regulation itself. See Jacobs v. Florida Bar, 50 F.3d 901, 905-06 (11th Cir.

1995). A criminal defendant who is convicted of violating a law may appeal his

conviction by challenging the constitutionality of the law on its face. See

Papachristou v. City of Jacksonville, 405 U.S. 156, 92 S. Ct. 839 (1972); Thornhill v.

Alabama, 310 U.S. 88, 97, 60 S. Ct. 736, 742 (1940) (explaining in the First

Amendment context that “[o]ne who might have had a license for the asking may . .

. call into question the whole scheme of licensing when he is prosecuted for failure to

procure it”); United States v. Acheson, 195 F.3d 645, 648-50 (11th Cir. 1999). This

is true even if the defendant pleaded guilty to violating the law. See United States v.

Cunningham, 161 F.3d 1343, 1344 (11th Cir. 1998). “[W]hen a licensing statute

allegedly vests unbridled discretion in a government official over whether to permit

or deny expressive activity, one who is subject to the law may challenge it facially

5
without the necessity of first applying for, and being denied, a license.” City of

Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 755-56, 108 S. Ct. 2138, 2143

(1988). The remedy if the facial challenge is successful is the striking down of the

regulation and the reversal of the conviction. See Stromberg v. California, 283 U.S.

359, 369-70, 51 S. Ct. 532, 536 (1931) (“The . . . statute being invalid on its face, the

conviction of the appellant . . . must be set aside.”).

The general rule in this circuit is that for “[a] facial challenge to be successful,

[a plaintiff] ‘must establish that no set of circumstances exists under which the [law]

would be valid.’” Adler v. Duval County School Board, 206 F.3d 1070, 1083-84 (11th

Cir. 2000) (en banc) (quoting United States v. Salerno, 481 U.S. 739, 745, 107 S. Ct.

2095, 2100 (1987)); see also Jacobs, 50 F.3d at 906 n.20 (“[w]hen a plaintiff

attacks a law facially, the plaintiff bears the burden of proving that the law could

never be constitutionally applied.”).3 Some circuits have determined that a facial

3
This rule, known as “the Salerno rule,” has been subject to a heated debate in the Supreme
Court, where it has not been consistently followed. See City of Chicago v. Morales, 119 S. Ct. 1849,
1858-59 n.22 (1999) (plurality opinion) (Stevens, J., Souter, J., and Ginsburg, J.) (“To the extent
we have consistently articulated a clear standard for facial challenges, it is not the Salerno
formulation, which has never been the decisive factor in any decision of this Court. . . .”); Morales,
119 S. Ct. at 1870-71 & n.2 (Scalia, J. dissenting) (“As Salerno noted, . . . the overbreadth doctrine
is a specialized exception to the general rule for facial challenges, justified in light of the risk that
an overbroad statute will chill free expression. . . . I am aware, of course, that in some recent facial-
challenge cases the Court has, without any attempt at explanation, created entirely irrational
exceptions to the ‘unconstitutional in every conceivable application’ rule, when the statutes at issue
concerned hot-button social issues on which ‘informed opinion’ was zealously united.”) (citations
omitted); Washington v. Glucksberg, 117 S. Ct. 2302, 2304-05 (1997) (Stevens, J. concurring) (“I
do not believe the Court has ever actually applied such a strict standard, even in Salerno itself, and
the Court does not appear to apply Salerno here.”); Janklow v. Planned Parenthood, Sioux Falls

6
challenge to a prior restraint on speech for want of certain procedural safeguards

satisfies that general rule. “A form of unbridled discretion is the failure to place brief,

specific time limits on the decision-making process. The rationale for permitting a

facial challenge is that when a licensing scheme allegedly contains a risk of delay,

‘every application of the statute create[s] an impermissible risk of suppression of

ideas.’” Nightclubs, Inc. v. City of Paducah, 202 F.3d 884, 889 (6th Cir. 2000)

(internal quotation marks and citations omitted) (quoting FW/PBS,Inc. v. City of

Clinic, 517 U.S. 1174,1175-1176, 116 S. Ct. 1582, 1583 (1996) (Memorandum opinion by Stevens,
J. denying cert.) (“[T]he dicta in Salerno does not accurately characterize the standard for deciding
facial challenges, and neither accurately reflects the Court’s practice with respect to facial
challenges, nor is it consistent with a wide array of legal principles.”) (quotation marks and citation
omitted); Janklow, 517 U.S. at 1178, 116 S. Ct. at 1584 (Scalia, J. dissenting) (explaining that the
question of when the Salerno rule applies “cries out for our review”); Planned Parenthood of
Southeastern Pennsylvania v. Casey, 505 U.S. 833, 942, 112 S. Ct. 2791, 2854 (1992) (Blackmun,
J. concurring in part, dissenting in part) (“[Chief Justice Rehnquist in a dissenting opinion] then
further weakens the test [for a facial challenge] by providing an insurmountable requirement for
facial challenges: Petitioners must ‘show that no set of circumstances exist under which the
[provision] would be valid.’”); Casey, 505 U.S. at 972, 112 S. Ct. at 2870 (Rehnquist, C.J.
dissenting) (“[B]ecause this is a facial challenge to the Act, it is insufficient for petitioners to show
that the notification provision ‘might operate unconstitutionally under some conceivable
circumstances.’”); see also Florida League of Professional Lobbyists, Inc. v. Meggs, 87 F.3d 457,
459 (11th Cir.1996) (discussing disagreement among the Supreme Court Justices concerning "how
high the threshold for facial invalidation should be set"); Michael C. Dorf, Facial Challenges to State
and Federal Statutes, 46 Stan. L. Rev. 235 (1994).

An exception to that general rule “permit[s] a party to 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” even if “application in the case under consideration may be
constitutionally unobjectionable.” Forsyth County v. Nationalist Movement, 505 U.S. 123, 129, 112
S. Ct. 2395, 2401 (1992) (citations omitted); see also Morales, 119 S. Ct. at 1870 n.2 (Scalia, J.
dissenting) (“As Salerno noted, . . . the overbreadth doctrine is a specialized exception to the general
rule for facial challenges, justified in light of the risk that an overbroad statute will chill free
expression.”) (citation omitted).

7
Dallas, 493 U.S. 215, 223-24, 110 S. Ct. 596 (1990) (plurality opinion)); see also

Baby Tam & Co., Inc. v. City of Las Vegas, 154 F.3d 1097, 1100 (9th Cir. 1998) (“A

facial challenge is also appropriate when there is a lack of adequate procedural

safeguards necessary to ensure against undue suppression of protected speech.”)

(citation omitted).

Whatever the precise scope of the general rule may be, the Supreme Court and

this Court consistently have permitted facial challenges to prior restraints on speech

without requiring the plaintiff to show that there are no conceivable set of facts where

the application of the particular government regulation might or would be

constitutional. See, e.g., Plain Dealer, 486 U.S. at 755-56, 108 S. Ct. at 2143;

FW/PBS, 493 U.S. at 225, 110 S. Ct. at 604; Freedman, 380 U.S. at 58-60, 85 S. Ct.

at 738-40; Boss Capital, Inc. v. City of Casselberry, 187 F.3d 1251 (11th Cir. 1999);

Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.3d 1358 (11th Cir. 1999); Redner

v. Dean, 29 F.3d 1495 (11th Cir. 1994); cf. Abramson v. Gonzalez, 949 F.2d 1567,

1573 (11th Cir. 1992) (explaining that a facial challenge is proper because the

regulation “affects the enjoyment of freedoms which the Constitution guarantees and

subjects the exercise of First Amendment freedoms to licensing requirements”)

(internal citations and quotation marks omitted). Because Frandsen and Morris

challenge the permit regulation, which is a prior restraint on speech, on grounds that

8
it fails to provide constitutionally required procedural safeguards, the general rule set

forth in Adler does not apply to their facial challenge.

A prior restraint on expression exists when the government can deny access to

a forum for expression before the expression occurs. See Ward v. Rock Against

Racism, 491 U.S. 781, 795 n. 5, 109 S. Ct. 2746, 2756 n. 5 (1989) (holding that a

regulation was not a prior restraint because it did not authorize suppression of speech

in advance of its expression). The regulation presently at issue clearly constitutes a

prior restraint on expression. Under 36 C.F.R. § 2.51, the National Park Service

allows “[p]ublic assemblies, meetings, gatherings, demonstrations, parades, and other

public expressions of views” at the Canaveral National Seashore and other national

parks only if the park superintendent issues a permit in advance of the activity. See

36 C.F.R. § 2.51(a). Because the superintendent can deny the use of the park for

expression by denying a permit, section 2.51 is a prior restraint on expression. See

Ward, 491 U.S. at 795 n. 5, 109 S. Ct. at 2756 n. 5. Although prior restraints are not

per se unconstitutional, there is a strong presumption against their constitutionality.

See FW/PBS, 493 U.S. at 225, 110 S. Ct. at 604 (O’Connor, J.) (plurality opinion).

A. DOES SECTION 2.51 APPLY TO PUBLIC FORA ?

When a regulation restricts the use of government property as a forum for

expression, an initial step in analyzing whether the regulation is unconstitutional is

9
determining the nature of the government property involved. See United States v.

Kokinda, 497 U.S. 720, 726-27, 110 S. Ct. 3115, 3119-20 (1990). The nature of the

property determines the level of constitutional scrutiny applied to the restrictions on

expression. See Capitol Square Review & Advisory Bd. v. Pinette, 515 U.S. 753, 761,

115 S. Ct. 2440, 2446 (1995). The Supreme Court has delineated three categories of

government-owned property for purposes of the First Amendment: the traditional

public forum, the designated public forum, and the nonpublic forum. See Crowder v.

Housing Auth. of Atlanta, 990 F.2d 586, 590 (11th Cir. 1993). Streets and parks are

the quintessential traditional public fora, because those areas “‘have immemorially

been held in trust for the use of the public and, time out of mind, have been used for

purposes of assembly, communicating thoughts between citizens, and discussing

public questions.’” Perry Educ. Ass’n v. Perry Local Educators’ Ass’n, 460 U.S. 37,

45, 103 S. Ct. 948, 954-55 (1983) (quoting Hague v. Committee for Indus. Org., 307

U.S. 496, 515, 59 S. Ct. 954, 963 (1939)); see also United States v. Grace, 461 U.S.

171, 177, 103 S. Ct. 1702, 1706-07 (1983) (“[P]ublic places historically associated

with the free exercise of expressive activities, such as . . . parks, are considered

without more, to be public forums.”).

Section 2.51 applies to national parks, which the government concedes are

traditional public fora. The district court erred in determining that the national park

10
involved in this case is a nonpublic forum, and in turn, erred by applying a rational

basis test to section 2.51.4 Restrictions on expression in traditional public fora receive

heightened scrutiny. See Kokinda, 497 U.S. at 726-27, 110 S. Ct. at 3119-20.

In public fora, the government may regulate the time, place, and manner of

expression so long as the restrictions “are content-neutral, are narrowly tailored to

serve a significant government interest, and leave open ample alternative channels of

communication.” Grace, at 461 U.S. at 177, 103 S. Ct. at 1707 (internal quotation

marks and citations omitted). Moreover, a regulation constituting a prior restraint on

expression must also contain certain procedural safeguards as set forth in Freedman

v. Maryland, 380 U.S. 51, 59, 85 S. Ct. 734, 739 (1965). See Forsyth County v.

Nationalist Movement, 505 U.S. 123, 130, 112 S. Ct. 2395, 2401 (1992); Lady J.

4
Our decision in Naturist Society, Inc. v. Fillyaw, 958 F.2d 1515 (11th Cir. 1992), confirms that
national parks are public fora. In Fillyaw, we reversed the district court’s determination that a state
government preserve with a beach was a nonpublic forum and held that the government facility was
a park with qualities of a traditional public forum. See id. at 1522. The state park in Fillyaw is
almost identical to the national park in this case. Both the national park here and the state park in
Fillyaw are open to the general public and consist of beaches, sidewalks, and parking areas.
Particularly applicable to the present case, we explained in Fillyaw:

[T]he park is more than a beach. In particular, it contains parking lots, a nature
center, and walkways. Speech and expressive conduct in these areas may not post
the same evils as on the beach. In declaring the park a non-public forum based solely
upon its beach characteristics, the district court ignored other areas of the park which
are not beach.

Id. (citation omitted).

11
Lingerie, 176 F.3d at 1364-65.5 Because we conclude that section 2.51 lacks one of

the procedural safeguards required under Freedman, we do not address whether the

regulation is a permissible time, place, or manner restriction.

B. IS 36 C.F.R. § 2.51 A CONSTITUTIONAL PRIOR RESTRAINT ON
EXPRESSION?

The Supreme Court in Freedman outlined three procedural safeguards that a

prior restraint on protected expression must contain to obviate the dangers of

censorship: (1) the burden of going to court to suppress the speech, and the burden of

proof once in court, must rest with the government; (2) any restraint prior to a judicial

determination may only be for a specified brief time period in order to preserve the

status quo; and (3) an avenue for prompt judicial review of the censor's decision must

be available. Freedman, 380 U.S. at 58-59, 85 S. Ct. at 739.6 At least some of the

5
Although the procedural protections were developed in the context of sexually explicit
material, they apply with the same or even greater force in the context of prior restraints of political
speech. As Justice Harlan wrote:

The right to assemble peaceably to voice political protest is at least as basic as the
right to exhibit a motion picture which may have some aesthetic value. Moreover,
slow-moving procedures have a much more severe impact [on political speech] than
they had in Freedman ... [as] timing is of the essence in politics.

Shuttlesworth v. Birmingham, 394 U.S. 147, 162-63, 89 S. Ct. 935, 944-45 (1969) (overturning
convictions of marchers who demonstrated in violation of an unconstitutional permit ordinance)
(Harlan, J. concurring).

6
In subsequent decisions, the Supreme Court has not required all three safeguards in every
situation. For example, in FW/PBS, a plurality of the Court concluded that the first of the Freedman

12
Freedman requirements apply to content-neutral regulations such as section 2.51. See

FW/PBS, 493 U.S. at 226-29, 110 S. Ct. at 605-06 (O’Connor, J., plurality opinion)

(holding content-neutral licensing scheme was an unconstitutional prior restraint

because it violated the second Freedman safeguard – adequate limits on the time that

the decisionmaker has to issue the license); see also id. at 238-39, 110 S. Ct. at 611

(Brennan, J., concurring) (agreeing with the plurality opinion’s requirement of the first

two Freedman safeguards); Riley v. National Federation of the Blind of N.C., Inc.,

487 U.S. 781, 802 & n.14, 108 S. Ct. 2667, 2680-81 & n. 14 (1988) (holding that a

content-neutral law requiring professional fundraisers to obtain a license before

procedural safeguards is not necessary in a licensing scheme which regulates an entire business, as
opposed to a scheme like Freedman itself which involved the direct censorship of particular
expressive material. The Court did require the second and third safeguards to be present. See
FW/PBS, 493 U.S. at 229-30, 110 S.Ct. at 606-07.

13
 7
soliciting donations was subject to the procedural safeguards of Freedman). In

FW/PBS, the Supreme Court explained that the second Freedman

requirement – any restraint prior to a judicial determination may only be for a

specified brief time period in order to preserve the status quo – means that “the

licensor must make the decision whether to issue the license within a specified and

reasonable time period during which the status quo is maintained . . . .” FW/PBS, 493

U.S. at 228, 110 S. Ct. at 606 (emphasis added). The Court reasoned that:

7
Despite a contrary implication by the Supreme Court in Cox v. New Hampshire, 312 U.S. 569,
61 S. Ct. 762 (1941), a regulation is not exempt from the Freedman safeguards merely because it
meets the requirements for a valid time, place, or manner restriction. In Cox, the defendants
challenged their convictions for taking part in a parade on public streets without a license. See id.
at 573, 61 S. Ct. at 764. The New Hampshire Supreme Court had construed the scheme to require
the licensing board to issue a permit if an investigation revealed that the convenience of the public
in using the streets would not be disturbed, and to permit the licensing board to provide for
conditions or changes in time, place, and manner so as to avoid disturbance. See id. at 576, 61 S.
Ct. at 766. The Supreme Court affirmed the defendants’ convictions, stating that the city had the
authority “to give consideration, without unfair discrimination, to time, place and manner in relation
to the other proper uses of the streets.” Id. The defendants did not raise nor did the Court discuss
the issue addressed twenty-four years later in Freedman – whether a prior restraint on expression
must contain certain procedural safeguards to be constitutional.

The Supreme Court has read Cox as standing only for the proposition that the government
may impose a permit requirement on those wishing to hold marches or parades. See Forsyth County
v. Nationalist Movement, 505 U.S. 123, 130, 112 S. Ct. 2395, 2401 (1992). More recently, the
Court indicated that Cox does not stand for the proposition that as long as a regulation is a valid
time, place, or manner restrictions, it need not provide the Freedman procedural safeguards. See
Riley v. National Federation of the Blind of N.C., Inc., 487 U.S. at 802, 108 S. Ct. at 2680 (citing
Cox for the proposition that states may impose valid time, place, or manner restrictions, and then
holding that even an otherwise valid license scheme must provide at least some of the Freedman
safeguards). As previously noted, a prior restraint on expression in a traditional public forum must
be both a content-neutral, reasonable time, place, or manner restriction and provide adequate
procedural safeguards to avoid unconstitutional censorship. See Forsyth County, 505 U.S. at 130,
112 S. Ct. at 2401.

14
 The failure to confine the time within which the licensor must make a
decision contains the same vice as a statute delegating excessive
administrative discretion. Where the licensor has unlimited time within
which to issue a license, the risk of arbitrary suppression is as great as
the provision of unbridled discretion.

Id. at 226-27, 110 S. Ct. at 605 (internal quotation marks and citations omitted). We

applied the time requirement in Redner v. Dean, 29 F.3d 1495 (11th Cir. 1994), and

Lady J. Lingerie, Inc. v. City of Jacksonville, 176 F.2d 1358 (11th Cir. 1999). The

Redner case involved the constitutionality of an ordinance that placed a forty-five day

time limit on the administrator’s decision to grant or deny a license. See Redner, 29

F.3d at 1500. In the event the administrator exceeded the forty-five day time limit, the

ordinance stated that “the applicant may be permitted to begin operating the

establishment for which a license is sought, unless and until the County Administrator

notifies the applicant of a denial of the application.” See id. at 1500-01 (citation

omitted). We held that the ordinance was unconstitutional on its face because its use

of the word “may” rather than “shall” allowed the individuals responsible for

enforcing the ordinance to suppress the protected expression for an indefinite time

period prior to any action on their part or any judicial determination. See id. 1501

(holding also that the ordinance failed to provide for prompt judicial review).

In Lady J. Lingerie, we examined the constitutionality of a city ordinance that

required the zoning board to hold a public hearing within sixty-three days after a

15
business applied for an exception to a zoning regulation but did not require a decision

from the board during that time period or any time thereafter. See Lady J. Lingerie,

176 F.3d at 1363. As we put it, “the ordinance fails to put any real time limits on the

zoning board.” Id. We held that the ordinance’s failure to require a specific deadline

for a decision rendered it unconstitutional because it vested too much discretion in the

zoning board as to when a decision would be made. See id.

Although the permit scheme here requires the superintendent to issue a permit

“without unreasonable delay,” 36 C.F.R. § 2.51(c), it does not provide the

superintendent, the public, or any reviewing court, with any guidance as to what is

considered “unreasonable.” Like the ordinance in Lady J. Lingerie, this regulation

“fails to put any real time limits on the [decision maker].” Lady J. Lingerie, 176 F.3d

at 1363. A park superintendent could receive a permit request well in advance of a

planned political demonstration and then fail to act on the permit request until after

the date of the demonstration, deciding on his own that he was acting “without

unreasonable delay.” A park superintendent who does not agree with the political

message to be espoused could allow the permit request to sit on his desk for an

indefinite period of time – resulting in speech being silenced by inaction. See Lady

J. Lingerie, 176 F.3d at 1361 (“An ordinance that permits public officials to

effectively deny an application by sitting on it indefinitely is also invalid.”); Redner,

16
29 F.3d at 1501 (explaining that “[w]e cannot depend on the individuals responsible

for enforcing [a regulation] to do so in a manner that cures it of constitutional

infirmities” and concluding that the law “risks the suppression of protected expression

for an indefinite time period prior to any action”). The defect here is the same as that

in FW/PBS: “[t]he failure to confine the time within which the licensor must make a

decision . . . .” FW/PBS, 493 U.S. at 226-27, 110 S. Ct. at 605.8

We hold that a regulation that merely requires a permit to be issued “without

unreasonable delay” without more is unconstitutional, because it fails adequately to

confine the time within which the decision maker must act. Because 36 C.F.R. § 2.51

is constitutionally invalid for that reason, the convictions of Frandsen and Morris for

failing to obtain a permit under section 2.51 cannot stand. We need not reach the

other issues they raise concerning section 2.51.

III. CONCLUSION

The convictions of Frandsen and Morris are REVERSED.

APPENDIX

8
Relying on United States v. Kistner, 68 F.3d 218 (8th Cir. 1995), the district court concluded
that section 2.51 would satisfy a facial challenge to its constitutionality. That reliance on Kistner
was misplaced for several reasons. First, the Kistner Court merely addressed a policy statement
interpreting 36 C.F.R. § 2.52, which requires a permit for the distribution of printed material within
national parks. See Kistner, 68 F.3d at 220. The court limited its review to the constitutionality of
the policy statement and declined to review 36 C.F.R. § 2.51. See id. at 220 & n.3. Second, to the
extent that the Kistner Court suggested that so long as a prior restraint is a reasonable time, place
and manner restriction it need not contain the Freedman safeguards, that suggestion is inconsistent
with Forsyth County, 505 U.S. at 130, 112 S. Ct. at 2401.

17
36 C.F.R. § 2.51 states:

(a) Public assemblies, meetings, gatherings, demonstrations, parades and
other public expressions of views are allowed within park areas,
provided a permit therefor has been issued by the superintendent.

(b) An application for such a permit shall set forth the name of the
applicant; the date, time, duration, nature and place of the proposed
event; an estimate of the number of persons expected to attend; a
statement of equipment and facilities to be used and any other
information required by the permit application form.

(c) The superintendent shall, without unreasonable delay, issue a permit
on proper application unless:

(1) A prior application for a permit for the same time and place has been
made that has been or will be granted and the activities authorized by
that permit do not reasonably allow multiple occupancy of that particular
area; or

(2) It reasonably appears that the event will present a clear and present
danger to the public health or safety; or

(3) The event is of such nature or duration that it cannot reasonably be
accommodated in the particular location applied for, considering such
things as damage to park resources or facilities, impairment of a
protected area’s atmosphere of peace and tranquility, interference with
program activities, or impairment of public use facilities.

(d) If a permit is denied, the applicant shall be so informed in writing,
with the reason(s) for the denial set forth.

(e) The superintendent shall designate on a map, that shall be available
in the office of the superintendent, the locations available for public
assemblies. Locations may be designated as not available only if such
activities would:

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(1) Cause injury or damage to park resources; or

(2) Unreasonably impair the atmosphere of peace and tranquility
maintained in wilderness, natural, historic or commemorative zones; or

(3) Unreasonably interfere with interpretive, visitor service, or other
program activities, or with the administrative activities of the National
Park Service; or

(4) Substantially impair the operation of public use facilities or services
of National Park Service concessioners or contractors; or

(5) Present a clear and present danger to the public health and safety.

(f) The permit may contain such conditions as are reasonably consistent
with protection and use of the park area for the purposes for which it is
established. It may also contain reasonable limitations on the equipment
used and the time and area within which the event is allowed.

(g) No permit shall be issued for a period in excess of 7 days, provided
that permits may be extended for like periods, upon a new application,
unless another applicant has requested use of the same location and
multiple occupancy of that location is not reasonably possible.

(h) It is prohibited for persons engaged in activities covered under this
section to obstruct or impede pedestrians or vehicles, or harass park
visitors with physical contact.

(i) A permit may be revoked under any of those conditions, as listed in
paragraph (c) of this section, that constitute grounds for denial of a
permit, or for violation of the terms and conditions of the permit. Such
a revocation shall be made in writing, with the reason(s) for revocation
clearly set forth, except under emergency circumstances, when an
immediate verbal revocation or suspension may be made to be followed
by written confirmation within 72 hours.

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 (j) Violation of the terms and conditions of a permit issued in accordance
with this section may result in the suspension or revocation of the permit.

36 C.F.R. § 2.51

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