The Obnoxious Park Protester
By Matt DiCianni
Photo Illustration: © Can Stock Photo Inc. / bluneo (man) | Helenmarlen (park)
Most of us have had these experiences: We’ve seen the rambling, disheveled man stumbling around in a park distributing leaflets to bewildered park patrons about some grand governmental conspiracy. Or the embarrassing extremist group that insists on posting information about its organization on any piece of government property it can find. Can these people be asked to leave park district property and take their offensive signs with them? What about their First Amendment rights?
Imposing Reasonable Restrictions
Park-district officials can limit that obnoxious protester’s ability to harass park patrons through reasonable time, place, and manner restrictions on the protester’s speech in an open public forum like a park. As long as the district has a valid reason for these restrictions, and does not choke off the protester’s ability to convey his message, these restrictions will be upheld. The park district may restrict the following:
- The time that the protester may convey his message to reasonable hours of the day;
- The manner in which the demonstration occurs to a method that does not harass park patrons;
- The place where the protester conveys his or her message to areas that do not interfere with the free flow of traffic or damage park property.
Reasonable restrictions that courts have upheld include limiting protests to daylight hours, preventing protesters from blocking major park pathways, or forbidding the use of excessively loud amplification systems. All of these restrictions can be justified because they promote public safety, yet still allow the protester to convey the message. Unreasonable restrictions include those that would confine the speaker to an inaccessible area of the park, allow the speaker to convey the message only during odd hours, or forbid the speaker from using any type of amplification system. These restrictions cannot be justified by a legitimate public purpose, and instead seem to be aimed at stifling the speaker’s ability to convey the message.
Another issue park district officials often face is that of posting signs or distributing literature on district property. Officials have broader latitude in imposing restrictions on sign posting. In fact, courts have upheld ordinances forbidding posting any signs on municipal property, as long as this ordinance has a valid purpose, like reducing litter or promoting aesthetics. The park district must apply this prohibition equally to all individuals. If one group is permitted to post signs on park-district property, and another group is not, this may quickly lead to a lawsuit. However, park officials have less ability to restrict the distribution of leaflets or written materials. Courts have been hostile to these restrictions, even if this distribution creates a litter problem. However, groups can be prohibited from placing leaflets on vehicles, and can be required to pay for the cleanup costs from large demonstrations.
No Restrictions For The Message
While park districts can impose reasonable restrictions on speakers, one of the swiftest ways they will find themselves in court is if these restrictions treat groups differently based on their message. Courts have been clear that governments must treat all speakers alike, even if one speaker is offensive. This means that any restrictions must be applied in the same way to each person. Park officials must resist the temptation to treat the obnoxious protester differently from the local Girl Scout troop. Also, any attempts by the park district to review a speaker’s message before it is delivered will be invalidated. Furthermore, a park district cannot require a speaker to reveal his or her identity when distributing literature or making a speech. This action will be quickly struck down by the courts. Courts have strongly upheld the right to engage in anonymous speech, even if that speech is defamatory, offensive, or even annoying.
Require Permits—But Proceed With Caution
A park district may require a group to obtain a permit before it conveys its message. However, the park district must tread carefully in this potential minefield. Any permit issued at the discretion of the district may lead to a lawsuit. A park district should never make a permit contingent on its approval of a speaker’s message. Also, the park district should be careful not to make it appear that it is issuing permits to groups it favors and denying them to groups it does not. Instead, the purpose of the permit requirement must be to provide notice to the park district and the public that a large group will hold an event that may potentially be disruptive. Any permit ordinance must contain definite, objective, and narrow standards applied equally to every group. Finally, courts are generally hostile to fees that must be paid to obtain a permit. Courts will tolerate the fees only if they are for small amounts and the park district has a good reason to impose them. A fee that seeks to recover the cleanup costs of a demonstration will probably be tolerated. A fee imposed on a small group passing out flyers in a park will probably not.
Park officials must resist the temptation to review the contents of any group’s message, or make it impossible for a group to convey its message. Ultimately, the First Amendment gives each person the same right to convey a message, no matter how obnoxious that message may be.
Matt DiCianni advises park districts, municipalities, and other local government entities about environmental law, land use and zoning, and liability minimization. DiCianni is a graduate of Notre Dame Law School, and is an associate at Ancel Glink Diamond Bush DiCianni & Krafthefer. For any questions related to this article, or any other matter involving local government or environmental law, do not hesitate to email him at firstname.lastname@example.org .