Legal Commentary

D.C. Circuit Strikes Down Limits on Expressive Activity in National Parks

By Jonathan H. Adler

This morning, in Boardley v. U.S. Department of the Interior, the U.S. Court of Appeals for the D.C. Circuit struck down the National Park Service?s permitting regulations for expressive activities in national parks on First Amendment grounds.  The panel opinion, by Judge Janice Rogers Brown, begins as follows:

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.

Judge Brown?s opinion was joined by Judge Kavanaugh and Chief Judge Sentelle, who has written extensively about his own experiences with ?expressive activities? on federal lands.

Full post as published by The Volokh Conspiracy on August 06, 2010 (boomark / email).