BROWN, Circuit Judge:
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.
I
In 1916, Congress created the National Park Service (NPS), within the Department of the Interior, to "promote and regulate the use of the Federal areas known as national parks, monuments, and reservations... by such means and measures as conform to the fundamental purpose... to conserve the scenery and the natural and historic objects and the wild life therein and to provide for the enjoyment of the same in such manner and by such means as will leave them unimpaired for the enjoyment of future generations." 16 U.S.C. § 1. The Secretary of the Interior was authorized to "make and publish such rules and regulations as he may deem necessary or proper for the use and management of the parks ... and any violation of any of the rules and regulations authorized by this section ... shall be punished by a fine of not more than $500 or imprisonment
The two regulations challenged here govern "[p]ublic assemblies, meetings," 36 C.F.R. § 2.51, and the "[s]ale or distribution of printed matter," id. § 2.52, within the national parks. Both regulations are substantially the same. First, they call for the designation of what the government calls "free speech areas." See Appellees' Br. at 15. Subsections (e) require park superintendents to "designate on a map, [which] shall be available for inspection in the office of the superintendent," the locations in the park available for public assemblies or the distribution of printed matter. 36 C.F.R. §§ 2.51(e), 2.52(e). "Locations may be designated as not available only if" expressive activities would injure or damage park resources, "[u]nreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic or commemorative zones," interfere with programmatic or administrative activities, substantially impair the operation of public facilities or services, or "[p]resent a clear and present danger to the public health and safety." Id.
Second, the regulations prohibit "[p]ublic assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views" and "[t]he sale or distribution of [non-commercial] printed matter" within park areas, unless "a permit [authorizing the activity] has been issued by the superintendent." Id. §§ 2.51(a), 2.52(a). An application for a permit must include the applicant's name; the name of his or her organization (if any); the date, time, duration, and location of the proposed event or distribution; an estimate of the number of participants; and a statement of the equipment and facilities to be used. Id. §§ 2.51(b), 2.52(b). The regulations require the superintendent to issue a permit "without unreasonable delay" unless a prior application for the same time and place has been (or will be) granted; the event is of a nature or duration that it cannot reasonably be accommodated without damaging the park or interfering with, or impairing, other programs or facilities; or it "reasonably appears that the event will present a clear and present danger to the public health or safety." Id. §§ 2.51(c), 2.52(c).
II
In 2007, appellant Michael Boardley and some associates attempted to distribute free tracts discussing the Gospel of Jesus Christ within a "free speech area" of Mount Rushmore National Memorial. A park ranger stopped them because they lacked a permit. Boardley returned home, requested a permit by phone, but never received a permit or an application. He then filed this action, seeking a declaration that the NPS regulations are unconstitutional and violative of the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1, on their face and as applied to
The district court dismissed Boardley's as-applied claims on grounds of mootness and failure to state a claim. Boardley v. U.S. Dep't of Interior, 605 F.Supp.2d 8, 13-14 (D.D.C.2009). We summarily affirmed the dismissal of these as-applied challenges. Boardley v. U.S. Dep't of Interior, Nos. 09-5176, 09-5186, 2009 WL 3571278, at *1 (D.C.Cir. Oct. 19, 2009) (per curiam).
However, the district court agreed with Boardley that 36 C.F.R. § 2.51(a) was facially unconstitutional to the extent that it required park visitors to obtain a permit before engaging in "other public expressions of views." Boardley, 605 F.Supp.2d at 15-16. But the court held that this provision was severable from the overall regulation, and concluded the remainder of 36 C.F.R. §§ 2.51 and 2.52 was facially valid. Id. at 16-19. The court therefore granted in part and denied in part both Boardley's and the government's motions for summary judgment. Id. at 19-20. Both parties appealed, but the government voluntarily dismissed its appeal. See Boardley v. U.S. Dep't of Interior, No. 09-5186, 2010 WL 1255986, at *1 (D.C.Cir. Mar. 5, 2010). Thus, the sole issue before us is whether the NPS regulations—excluding the provision in § 2.51 regarding "other public expressions of views"—are facially unconstitutional under the First Amendment.
We review the district court's determination de novo. See Moore v. Hartman, 571 F.3d 62, 66 (D.C.Cir.2009).
III
The First Amendment provides, "Congress shall make no law ... abridging the freedom of speech." Boardley claims the NPS regulations are unconstitutional on their face. "It is well established that in the area of freedom of expression an overbroad regulation may be subject to facial review and invalidation, even though its application in the case under consideration may be constitutionally unobjectionable." Forsyth County v. Nationalist Movement, 505 U.S. 123, 129, 112 S.Ct. 2395, 120 L.Ed.2d 101 (1992). The Supreme Court has explained that "[t]his exception from general standing rules is based on an appreciation that the very existence of some broadly written laws has the potential to chill the expressive activity of others not before the court. Thus, ... a party [may] challenge an ordinance under the overbreadth doctrine in cases where every application creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected." Id. at 129-30, 112 S.Ct. 2395 (citations omitted).
A
"Even protected speech is not equally permissible in all places and at all times. Nothing in the Constitution requires the Government freely to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker's activities." Cornelius, 473 U.S. at 799-800, 105 S.Ct. 3439. Rather, the extent of scrutiny given to a regulation of speech— in effect, how we examine the directness with which it promotes the government's goals and the degree to which it burdens speech—depends on whether the regulation applies in a public or nonpublic forum. "Traditional public fora are those places which by long tradition or by government fiat have been devoted to assembly and debate." Id. at 802, 105 S.Ct. 3439 (internal quotation marks omitted). Another type of public forum is the "designated public forum," which exists when "government property that has not traditionally been regarded as a public forum is intentionally opened up for that purpose." Pleasant Grove City v. Summum, ___ U.S. ___, 129 S.Ct. 1125, 1132, 172 L.Ed.2d 853 (2009). A nonpublic forum is by contradistinction "[p]ublic property which is not by tradition or designation a forum for public communication." Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 46, 103 S.Ct. 948, 74 L.Ed.2d 794 (1983).
Boardley contends all national parks are traditional public forums. As support for this proposition, he argues the Supreme Court repeatedly has stated that "parks" are quintessential examples of traditional public forums. This premise is unassailable, see, e.g., Christian Legal Soc'y Chapter of the Univ. of Cal. v. Martinez, ___ U.S. ___, 130 S.Ct. 2971, 2984 n. 11, 177 L.Ed.2d 838 (2010) (referring to "traditional public forums, such as ... parks"); Pleasant Grove City, 129 S.Ct. at 1129 (noting "a park is a traditional public forum"), but Boardley's conclusion does not follow. The protections of the First Amendment do not rise or fall depending on the characterization ascribed to a forum by the government. Mount Rushmore does not become a public forum merely by
The record before this court is woefully inadequate to determine the forum status of the hundreds of national parks governed by the NPS regulations. Common sense tells us they are not all identical. See United States v. Doe, 968 F.2d 86, 90 (D.C.Cir.1992) ("Th[e] [First Amendment] test ... must be applied in a realistic manner which takes into account the nature and traditional uses of the particular park involved. Lafayette Park is not Okefenokee National Wildlife Refuge, even if both are under the Park Service's supervision."). Presumably, many national parks include areas—even large areas, such as a vast wilderness preserve—which never have been dedicated to free expression and public assembly, would be clearly incompatible with such use, and would therefore be classified as nonpublic forums. But at the same time, many national parks undoubtedly include areas that meet the definition of traditional public forums. See, e.g., ISKCON of Potomac, Inc. v. Kennedy, 61 F.3d 949, 954 (D.C.Cir.1995) ("The Park Service concedes, as it must, that the Mall is a traditional public forum for purposes of the First Amendment."). This is a fact-intensive question which cannot be answered in the absence of evidentiary submissions. "As heretofore emphasized, the decision as to whether a forum is public usually invokes a factual inquiry. The forum doctrine itself is not a taxonomy of ideal types; it is virtually impossible in most cases to identify a public forum by legal inquiry alone." Stewart v. Dist. of Columbia Armory Bd., 863 F.2d 1013, 1018 (D.C.Cir.1988) (remanding to district court to develop a factual record on forum status). Yet, the record on this appeal gives no hint as to the history and tradition, or lack thereof, of expressive activities in the various national parks.
Fortunately, we have a basis for resolving this appeal without deciding the forum status of all 391 national parks. The government concedes the "free speech areas" made available within national parks pursuant to subsections (e) of the NPS regulations are "designated public forums." See Appellees' Br. at 15-16; see also 36 C.F.R. §§ 2.51(e), 2.52(e). These areas are subject to the same permit requirement as all other locations within the national parks. See 36 C.F.R. §§ 2.51(a), 2.52(a) (prohibiting specified expressive activities in the absence of a permit anywhere in a national park). Thus, at least with respect to these "free speech areas," the NPS regulations must be analyzed as restrictions on speech in public forums, and we need not (indeed, cannot) decide whether the same analysis would apply to the diverse range of other
B
"[T]he core abuse against which [the First Amendment] was directed was the scheme of licensing laws implemented by the monarch and Parliament to contain the `evils' of the printing press in 16th — and 17-century England." Thomas v. Chi. Park Dist., 534 U.S. 316, 320, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002). Thus, "[a]ny system of prior restraints of expression... bear[s] a heavy presumption against its constitutional validity." Bantam Books, Inc. v. Sullivan, 372 U.S. 58, 70, 83 S.Ct. 631, 9 L.Ed.2d 584 (1963). Regulatory schemes "conditioning expression on a licensing body's prior approval of content `present[] peculiar dangers to constitutionally protected speech'" and require "extraordinary procedural safeguards" in order to survive constitutional scrutiny. Thomas, 534 U.S. at 321, 323, 122 S.Ct. 775 (quoting Freedman v. Maryland, 380 U.S. 51, 57, 85 S.Ct. 734, 13 L.Ed.2d 649 (1965)). However, "a content-neutral permit scheme regulating speech in a public forum ... differs toto coelo" from a "licensing standard which gives an official authority to censor the content of a speech." Id. at 322, 122 S.Ct. 775 (internal quotation marks omitted). Because "[r]egulations of the use of a public forum that ensure the safety and convenience of the people" do not raise the same kinds of "censorship concerns" as content-based prior restraints, their presumption of invalidity is more easily rebutted. Id. at 323, 122 S.Ct. 775.
Thus, in assessing the constitutionality of a prior restraint, it must be determined at the outset whether the regulation is content-based or content-neutral. This determination is critical, not because it might end the inquiry, but because it will direct its path. Here, the NPS regulations are indisputably content-neutral on their face. They prohibit certain forms of expressive conduct—public assemblies, meetings, gatherings, demonstrations, parades, and the sale or distribution of printed matter—in the absence of a permit, regardless of the message the speaker wishes to convey. 36 C.F.R. §§ 2.51(a), 2.52(a). Nor is there any evidence the NPS was motivated to adopt these regulations by its agreement with or hostility toward any particular message or speaker. See Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 129 L.Ed.2d 497 (1994).
Content-neutral restrictions on the time, place, or manner of speech in a public forum are analyzed under a familiar multipart test: First, the regulations may not delegate overly broad licensing discretion to a government official. Second, the scheme must be narrowly tailored to serve a significant governmental interest. And third, it must leave open ample alternatives for communication. See Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395.
Even a content-neutral licensing scheme may raise significant censorship concerns if it vests government officials with unrestricted freedom to decide who qualifies for a permit and who does not. "It is offensive—not only to the values protected by the First Amendment, but to the very notion of a free society—that in the context of everyday public discourse a citizen must first inform the government of her desire to speak to her neighbors and then obtain a permit to do so." Watchtower Bible, 536 U.S. at 165-66, 122 S.Ct. 2080. Thus, such schemes must "contain adequate standards to guide the official's decision and render it subject to effective judicial review," thereby eliminating the "risk that he will favor or disfavor speech based on its content." Thomas, 534 U.S. at 323, 122 S.Ct. 775. Compare id. at 324, 122 S.Ct. 775 (upholding scheme that provided several "reasonably specific and objective" grounds for denying a permit and did "not leave the decision to the whim of the administrator") (internal quotation marks omitted), with Forsyth County, 505 U.S. at 133, 112 S.Ct. 2395 (striking down scheme that contained "no articulated standards" and did "not require[] ... rel[iance] on any objective factors"), and City of Lakewood v. Plain Dealer Publ'g Co., 486 U.S. 750, 769, 108 S.Ct. 2138, 100 L.Ed.2d 771 (1988) (plurality) (striking down licensing scheme that allowed officials to subject permit applications to "such other terms and conditions deemed necessary and reasonable by the Mayor" because "the face of the ordinance itself contain[ed] no explicit limits on the mayor's discretion").
Boardley argues the NPS regulations vest government officials with overly broad discretion, allowing a permit to be denied if "[i]t reasonably appears that the event will present a clear and present danger to the public health or safety." 36 C.F.R. §§ 2.51(c)(2), 2.52(c)(2). Before the Supreme Court's decision in Thomas, this argument might have been plausible. But in Thomas, the Court upheld a licensing scheme for Chicago parks that allowed a permit to be denied if the intended activity "would present an unreasonable danger to [public] health or safety." Thomas, 534 U.S. at 318 n. 1, 324, 122 S.Ct. 775. Boardley distinguishes the NPS regulations because they allow NPS officials to decide whether the proposed event "reasonably appears" to present a public danger, as opposed to deciding simply whether the event "would present" such danger. See Tr. of Oral Arg. at 12-17. If this is indeed a distinction, it is one wholly without constitutional significance. An official tasked with forecasting whether a proposed event might endanger the health or safety of the public must necessarily make a predictive judgment based on the facts as she knows them and her expertise in the field. Few licensing schemes would survive constitutional scrutiny if certainty were a prerequisite. It is not fatal to the NPS regulations that they endow park officials with some measure of discretion. The "clear and present danger" standard is sufficiently unambiguous and objective to guard against the possibility of it serving as a backdoor artifice for content-based censorship. Of course, a future as-applied challenge could argue that the NPS's denial of a permit on "clear and present danger" grounds was, in fact, pretext for content-based discrimination. But Thomas forecloses this argument as a facial matter.
Boardley focuses on United States v. Frandsen, where the Eleventh Circuit held one of the NPS regulations at issue here (36 C.F.R. § 2.51) to be unconstitutional because the "without unreasonable delay" standard "fail[ed] adequately to confine the time within which the decision maker must act." 212 F.3d 1231, 1240 (11th Cir. 2000). But this decision lacks persuasive force for two reasons: first, it relied on Freedman and predated the Supreme Court's decision in Thomas, which clarified that Freedman does not apply to content-neutral schemes; and second, the Eleventh Circuit itself declined to follow Frandsen in its post-Thomas decision in Granite State Outdoor Advertising, cited above. Boardley points us to no post-Thomas decision holding that a content-neutral licensing scheme must contain an explicit timeframe for official action in order to withstand constitutional scrutiny.
We find that the "without unreasonable delay" standard is "adequate ... to guide [a park] official's decision and render it subject to effective judicial review." Thomas, 534 U.S. at 323, 122 S.Ct. 775. For one, this standard places the NPS regulations on significantly firmer ground than the licensing schemes upheld by other circuits, which contained no timeliness standard at all. It also takes into account the fact that not all applications can, or should, be processed with equal speed; what constitutes "unreasonable delay" could vary depending on such factors as the complexity of the application and the resources of the park to which it is directed.
2
Boardley argues the NPS regulations are not a narrowly tailored means of achieving the government's substantial interests. A content-neutral time, place, or manner regulation is narrowly tailored "so long as the ... regulation promotes a substantial government interest that would be achieved less effectively absent the regulation." Ward v. Rock Against Racism, 491 U.S. 781, 799, 109 S.Ct. 2746, 105 L.Ed.2d 661 (1989) (internal quotation marks omitted). But while the regulation "need not be the least restrictive or least intrusive means," the regulation may not "burden substantially more speech than is necessary" to achieve the government's substantial interests. Id. at 798-99, 109 S.Ct. 2746; see also Frisby v. Schultz, 487 U.S. 474, 485, 108 S.Ct. 2495, 101 L.Ed.2d 420 (1988) (noting that a content-neutral ordinance banning picketing in front of private residences "is narrowly tailored if it targets and eliminates no more than the exact source of the `evil' it seeks to remedy"); City of Renton v. Playtime Theatres, Inc., 475 U.S. 41, 52, 106 S.Ct. 925, 89 L.Ed.2d 29 (1986) (upholding a content-neutral zoning ordinance because it was "`narrowly tailored' to affect only that category of [adult] theaters shown to produce the unwanted secondary effects"). Although a content-neutral restriction will not be struck down "simply because there is some imaginable alternative that might be less burdensome on speech," Ward, 491 U.S. at 797, 109 S.Ct. 2746 (internal quotation marks omitted), the existence of "numerous and obvious less-burdensome alternatives ... is certainly a relevant consideration in determining whether the `fit' between ends and means is reasonable," City of Cincinnati v. Discovery Network, Inc., 507 U.S. 410, 417 n. 13, 113 S.Ct. 1505, 123 L.Ed.2d 99 (1993). Thus, "the court must closely scrutinize the regulation to determine if it indeed promotes the Government's purposes in more than a speculative way." Cmty. for Creative Non-Violence v. Kerrigan, 865 F.2d 382, 390 (D.C.Cir.1989).
The government asserts the NPS regulations further its interests in "protect[ing] the national parks' natural and cultural resources; protect[ing] park facilities and property from damage; ensur[ing] that locations are not populated beyond their capacity; protect[ing] visitors to the parks; avoid[ing] interference with the parks' activities and the operation of park facilities; and preserv[ing] peace and tranquility in the parks." Appellees' Br. at 25. Boardley does not appear to question the substantiality of these interests, and indeed, he would have little basis for doing so. See Clark v. Cmty. for Creative Non-Violence, 468 U.S. 288, 296, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984) (finding a "substantial interest in maintaining the parks in [D.C.] in an attractive and intact condition"); Heffron v. Int'l Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 650, 101 S.Ct. 2559,
Boardley argues the NPS regulations are not narrowly tailored to the advancement of these interests because the permit requirement applies not only to large groups, but also to small groups and even lone individuals. His argument draws considerable support from this and other circuits. The Sixth Circuit, for instance, has found that "[p]ermit schemes and advance notice requirements that potentially apply to small groups are nearly always overly broad and lack narrow tailoring." Am.-Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th Cir. 2005) (striking down licensing scheme for public parades because the city's "significant interest in crowd and traffic control, property maintenance, and protection of the public welfare is not advanced by the application of the [o]rdinance to small groups"). The Fourth Circuit reached the same conclusion in Cox v. City of Charleston, where a lone protestor challenged an ordinance barring "any person" from participating in "any parade, meeting, exhibition, assembly or procession ... on the streets or sidewalks of the city" without a permit. 416 F.3d 281, 283 (4th Cir.2005) (internal quotation marks omitted). The court held that the "application of the [o]rdinance to groups as small as two or three renders it constitutionally infirm" because the city failed to "establish[] why burdening such expression is necessary to facilitate its interest in keeping its streets and sidewalks safe, orderly, and accessible." Id. at 285-86. The Ninth Circuit relied on similar grounds in striking down an ordinance requiring street performers at a public park to obtain permits before performing. See Berger v. City of Seattle, 569 F.3d 1029, 1035 (9th Cir.2009) (en banc). The court explained:
Id. at 1038-39 (citations omitted); see also Knowles v. City of Waco, 462 F.3d 430, 436 (5th Cir.2006) ("Other circuits have held, and we concur, that ordinances requiring a permit for demonstrations by a handful of people are not narrowly tailored to serve a significant government interest.").
Our own precedent points in the same direction. In Community for Creative Non-Violence v. Turner, we held unconstitutional
We are not persuaded by the district court's attempt to distinguish these cases on the ground that the NPS regulations at issue here
Boardley, 605 F.Supp.2d at 18 (citations omitted). This analysis amounts to an argument that the national parks are not public forums. But as discussed above, without deciding the forum status of every part of every national park, it is at least clear that the locations designated as "free speech areas" pursuant to subsections (e) of the regulations are public forums. See 36 C.F.R. §§ 2.51(e), 2.52(e). Therefore, by definition, these are not areas where the government has a paramount interest in maintaining a "peaceful and tranquil environment," Boardley, 605 F.Supp.2d at 18. See Doe, 968 F.2d at 89 (rejecting governmental interest in tranquility at Lafayette Park and noting that "the very concept of a situs being designated as a `public forum' for First Amendment purposes presupposes that the situs has been used for purposes of assembly, communicating thoughts between citizens and discussing public questions") (internal quotation marks omitted). In fact, the NPS regulations expressly provide that park superintendents may decline to designate a location as a "free speech area" if expressive activities would "[u]nreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic or commemorative zones." 36 C.F.R. §§ 2.51(e)(2), 2.52(e)(2).
Nor are the remainder of the government's interests substantially furthered
The fit between means and ends is far more precise when the NPS regulations are applied to large groups. The most important function of a permit application is to provide park officials with the forewarning necessary to coordinate multiple events, assemble proper security, and direct groups to a place and time where interference with park visitors and programs will be minimized. These needs arise routinely with large-scale events, but only rarely with small ones. For example, the government argues that it requires advance notice to determine whether to summon a Special Events and Tactical Team (SETT). Appellees' Br. at 36. But according to the Chief Park Ranger for Mount Rushmore National Memorial, SETTs are "[m]ost often" deployed for "major events" such as "large scale demonstrations; presidential, other VIP, or dignitary visits; major disasters; special ceremonies requiring crowd control; special law enforcement investigations and emergency law enforcement operations." Third Decl. of Mike Pflaum ¶ 24. Similarly, the NPS's "potential need to arrange for additional parking, traffic control, sanitary facilities, water fountains, and/or first aid stations," Appellees' Br. at 36-37, will arise much more frequently when a large group plans to hold an event than when a few people wish to speak freely or hand out pamphlets. Imposing the permit requirement on individuals and small groups promotes the government's need for forewarning only marginally, if at all.
To be sure, the government suggests examples of small groups that "can attract a significant crowd or otherwise strain the resources of a park"—such as the "Westboro Baptist Church," a "neo-Nazi white supremacist group," or a "small group of Ku Klux Klan members." Id. at 41-42. But the government has failed to show that most individuals and small groups who engage in free speech pose such problems. In order to be narrowly
Our conclusion is reinforced by the fact that the NPS regulations are far more burdensome when applied to individuals and small groups than when applied to large groups. For one, the permit requirement effectively forbids spontaneous speech. See Watchtower Bible, 536 U.S. at 167-68, 122 S.Ct. 2080. Large groups, of course, generally cannot speak spontaneously. Obligating a large group to apply for a permit simply creates one more step in the already-lengthy process of planning a large-scale event. Individuals and small groups, by contrast, frequently wish to speak off the cuff, in response to unexpected events or unforeseen stimuli. For example, if an individual comes upon a (duly licensed) antiwar protest at a national park and wishes to don a "support the troops" pin in response, must he first apply for a permit or otherwise risk being penalized for engaging in an unlicensed "demonstration"? See 36 C.F.R. § 2.51(a). This is a major deprivation of free speech, and it falls almost exclusively on individuals and small groups. See Shuttlesworth v. City of Birmingham, 394 U.S. 147, 163, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969) (Harlan, J., concurring) ("[W]hen an event occurs, it is often necessary to have one's voice heard promptly, if it is to be considered at all.").
Secondly, the permit requirement infringes on individuals' ability to engage in anonymous speech. A speaker's "decision to remain anonymous ... is an aspect of the freedom of speech protected by the First Amendment." McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 342, 115 S.Ct. 1511, 131 L.Ed.2d 426 (1995). This is not to say that the government never can establish a justification for mandating
Finally, we note that the government has myriad less intrusive means of achieving its interests. See City of Cincinnati, 507 U.S. at 417 n. 13, 113 S.Ct. 1505 (noting that the existence of "numerous and obvious less-burdensome alternatives... is certainly a relevant consideration in determining whether the `fit' between ends and means is reasonable"). It could, for example, promulgate separate regulations for different national parks, taking into account the vast differences in the sizes and uses of the various parks. Instead of subjecting individuals and small groups to a prior restraint on speech, the NPS could simply prohibit and punish conduct that harasses park visitors, interferes with official programs, or creates security or accessibility hazards. Or, rather than employing an identical prior restraint on speech no matter where it occurs in a park, the NPS could craft distinct regulations for wilderness areas, visitors centers, parking lots, and so forth. Whether any of these options would withstand constitutional scrutiny depends on the specifics, but they all surely would be more narrowly tailored than the all-encompassing regulations at hand.
3
Finally, a time, place, or manner regulation must "leave open ample alternatives for communication." Forsyth County, 505 U.S. at 130, 112 S.Ct. 2395. These alternatives must exist "`within the forum in question.'" Initiative & Referendum Inst., 417 F.3d at 1310 (quoting Heffron, 452 U.S. at 655, 101 S.Ct. 2559). Thus, we can easily reject the government's argument that this requirement is satisfied because "[i]ndividuals can distribute pamphlets or engage in permitless demonstrations on other property near" the national parks. Appellees' Br. at 44 (emphasis added). "[O]ne is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in some other place." Reno v. ACLU, 521 U.S. 844, 880, 117 S.Ct. 2329, 138 L.Ed.2d 874 (1997) (internal quotation marks omitted). This case is analogous to Turner, where we held that WMATA's licensing scheme for speech in subway stations failed to leave open ample alternatives for communication:
893 F.2d at 1393.
These same problems plague the NPS regulations. As the government conceded at oral argument, for someone who wishes to distribute leaflets in a national park, there is no lawful alternative to a permit. Tr. of Oral Arg. at 30-31. The same is true for those desiring to host an assembly, meeting, gathering, demonstration, or parade. See 36 C.F.R. § 2.51(a). Given the breadth of these proscriptions, virtually anyone engaging in any permitless expressive activity in a national park risks a penalty. Thus, the NPS regulations not only lack narrow tailoring, they fail to leave open ample intra-forum alternatives for communication.
IV
Requiring individuals and small groups to obtain permits before engaging in expressive activities within designated "free speech areas" (and other public forums within national parks) violates the First Amendment. Neither party has argued that we should sever the regulations in order to leave part of them intact, and we perceive no basis for doing so. And, of course, it is the prerogative of the agency (or Congress) to decide whether to rewrite the regulations to apply only to large groups, and to decide where to draw that line. We have no choice but to hold the regulations unconstitutional in their entirety. Accordingly, the judgment of the district court is
Reversed.
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