Federal appeals court upholds protest rules in National Forest

Monday, January 24, 2000

A closure order issued by forest service agents in Idaho's Nez Perce National Forest did not violate the First Amendment, a federal appeals court has ruled.

Forest officials had issued a closure order prohibiting any member of the public from coming within 150 feet of a construction site after protesters opposed to logging and road-building in the forest had dug trenches, plugged culverts and engaged in other obstructive activities designed to slow construction of new roads through the forest.

Five protesters arrested for violating the order contended that it violated their First Amendment free-expression rights.

The protesters were convicted by a federal magistrate. After the convictions were upheld by a federal district judge, the protesters appealed to the 9th U.S. Circuit Court of Appeals.

The 9th Circuit ruled in U.S. v. Griefen on Jan. 12 that the closure order did not violate the First Amendment. The appeals court characterized the order as a reasonable time, place and manner restriction.

Time, place and manner restrictions on free expression are constitutional if they:

  • Are content-neutral.
  • Are narrowly tailored to serve a significant governmental interest.
  • Leave open ample alternatives for communication.

    The 9th Circuit had “no doubt” that the order was content-neutral. “It excluded all members of the public, not just the protestors,” the court wrote.

    The appeals court also found the order to be narrow enough. “The closure order was limited to the immediate construction area, and 150 feet on each side of the zone — which we conclude was imminently reasonable.”

    The appeals court also found that the protesters could still express their views “but at a distance of 150 feet from the construction site.”

    “Although the closure order certainly put a stop to the specific expressive and obstructive activities of the defendants, it was minimally intrusive on their legitimate right to protest,” the court wrote.

    The defendants also argued that the closure order was unconstitutional because it served as a prior restraint on free expression. They claimed that Forest Service officials had too much discretion in issuing and administering the order.

    However, the 9th Circuit also rejected that claim, finding that “in First Amendment terms, the fact that discretion to authorize entry to a closed area may be unfettered during construction is of no concern.”

    The court did say that if individuals could show that the true purpose of a closure order was to “silence disfavored speech,” then the case would be decided differently. However, the court concluded that the purpose of the order in question was to protect the public from dangers associated with the construction site.

    Barry McHugh, the assistant U.S. attorney who handled the case for the government, said the 9th Circuit's decision was well-reasoned. “Our goal was to draft a closure order that was narrowly tailored enough to allow protest activity to continue outside of the construction area,” he said. “There was no intent to stifle First Amendment freedoms.”

    A call placed to the attorney representing the defendants was not returned.