National Park Service Permit Requirement is Unconstitutional

An appeals court has ruled that NPS’ requirement for a permit to conduct any type of expressive activities in national parks is unconstitutional.

The D.C. Circuit Court of Appeals has ruled that the National Parks Service’s requirement for a permit to conduct any type of expressive activities within the 391 national parks is “overbroad and therefore unconstitutional on its face.” (Boardley v U.S. Department of the Interior, C.A.D.C. No. 09-5176, 8/6/10, p. 2)

The court calls the agency’s regulations “antithetical to the core First Amendment principle that restrictions on free speech in a public forum may be valid only if narrowly tailored.” (p. 2)

Exercising his authority to make necessary rules and regulations for the national parks, the Secretary of the Interior issued two regulations that were challenged in this court case. Essentially the regulations designate “free speech areas” within the parks and prohibit public expressions of views in these areas unless a permit is first obtained from the Park Service. As the court summarizes the regulations, they “erect two layers of restrictions on speech in national parks.” (p. 4)

Michael Boardley and a few of his associates tried to give out Christian religious tracts at Mount Rushmore, but were stopped by a park ranger because they did not have the required permit. Mr. Boardley filed suit challenging the constitutionality of the regulations as they applied to him. The rest is now, shall we say, history.

Without detailing the court’s reasoning in striking down the regulations, this passage best sums it up: “Requiring individuals and small groups to obtain permits before engaging in expressive activities within designated ‘free speech areas’…violates the First Amendment.” (pp. 28-29) The court, sympathetic to the agency’s rationale that it must have procedures to handle large groups that want to engage in expressive activity in the parks, leaves to the agency whether to rewrite its regulations to apply only to such groups. But, for now, the agency’s regulations are legal history.

About the Author

Susan McGuire Smith spent most of her federal legal career with NASA, serving as Chief Counsel at Marshall Space Flight Center for 14 years. Her expertise is in government contracts, ethics, and personnel law.