Federal appeals panel strikes down federal permit scheme for public parks

Wednesday, May 31, 2000

A federal regulation requiring government officials to issue permits “without unreasonable delay” to people who seek to demonstrate in public parks is an unconstitutional prior restraint on free expression, a federal appeals court panel has ruled.

Two naturists (individuals who believe that clothing should be optional) protested without a permit at the Canaveral National Seashore in 1997 and were fined. The naturists were protesting what they termed “the discrimination allegedly suffered by Naturist citizens at the hands of Brevard County and the then-current Canaveral National Seashore administration.”

Protesters Marvin Frandsen and Bryan Morris contended that the federal law requiring them to obtain a permit before demonstrating violated their First Amendment rights. The law, they argued, was an unconstitutional prior restraint because it did not contain adequate procedural safeguards and because it gave unbridled discretion to government officials.

The government responded that the permit scheme was a valid time, place and manner restriction on expression.

After a U.S. District Court Judge rejected their constitutional arguments and upheld a fine levied by a federal magistrate, the naturists appealed to the 11th U.S. Circuit Court of Appeals.

On May 25, a three-judge panel of the 11th Circuit ruled in United States v. Frandsen that the permit scheme was unconstitutional.

The panel determined that the scheme did not contain the necessary procedural safeguards for prior restraints established by the U.S. Supreme Court in the 1965 decision Freedman v. Maryland.

The permit scheme provides: “Public assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views are allowed within park areas, provided a permit therefore has been issued by the superintendent.”

The law also provides that “the superintendent shall, without unreasonable delay, issue a permit on proper application.”

In Freedman, the high court said that a Maryland film censorship statute needed three procedural safeguards to be constitutional. These were:

  • A decision whether to issue a license must be made in a “specified brief period,” and if someone appeals a license denial, the status quo must be preserved pending a final judicial decision.

  • The licensing scheme must assure a “prompt final judicial decision.”

  • The burden of proof must be on the city to prove that its license is constitutional.

  • The panel pointed out that the permit scheme said only that the superintendent must issue a permit “without unreasonable delay.” The court wrote that the law “does not provide the superintendent, the public, or any reviewing court, with any guidance as to what is considered ‘unreasonable.’ ”

    The panel concluded: “We hold that a regulation that merely requires a permit to be issued ‘without unreasonable delay’ without more is unconstitutional, because it fails to confine the time within which the decision maker must act.”