June 2023 - Parks & Recreation - 28

LAW REVIEW
Despite the broad First Amendment
protection provided to
speech in public parks, the court
acknowledged " certain restrictions
on speech in public parks are
valid, " specifically, " governmental
entities may issue reasonable laws
governing the time, place, or manner
of speech. "
Since " a permitting requirement
is a prior restraint on speech, " the
court further found an ordinance
regulating speech " bears a heavy
presumption against constitutionality. "
As described by the court,
to pass constitutional muster, a permit
requirement must be a reasonable
time, place or manner restriction.
In particular, the court would
find such permit requirements to be
" reasonable " when governmental
restrictions are:
(1) Content-neutral; (2) narrowly
tailored to serve a significant
governmental interest; and (3)
leave open alternative channels for
communication of information.
Additionally, the permitting system
may not delegate overly broad
licensing discretion to governmental
officials.
Moreover, when a permit requirement
is content based, to
be considered constitutional, the
court would apply a " strict scrutiny
test. " Under this strict scrutiny
standard of judicial review, " the
Government must prove that the
restriction
furthers a compelling
interest and is narrowly tailored to
achieve that interest. "
Religious Speech
Restrictions
With regard to Section 7.03(h), requiring
a permit for religious worship,
the level of scrutiny applied
by federal district court would be
28 Parks & Recreation | JUNE 2 0 2 3
based on whether the challenged
park permit regulation was content
based
or
content
neutral.
According
to the court: " Government
regulation of speech is content
based if a law applies to particular
speech because of the topic
discussed or the idea or message
expressed. "
In this case, the federal district
court found " Section 7.03(h) is a
content-based regulation " because
" the regulation distinguishes between
religious events and other
types of events and singles out several
topics or subject matters for
differential treatment " :
For instance, under Section
7.03(h) a permit is required for
plaintiffs to " conduct or sponsor
a religious event involving 50 or
more persons. " However, under
Section 7.03(e)-(g), a permit is
not required for plaintiffs to put
on certain entertainment events,
no matter how many people attend
as long as it is spontaneous,
and not planned at least four
hours in advance.
Under those sections, plaintiffs
could go to a public park in San
Francisco and put on a drama
performance, a fair, circus, juggling
show, amusement show,
and the like, even if hundreds of
people attended, assuming other
requirements are met. The same is
true if plaintiffs decided that they
wanted to give a public speech in
a public park on virtually any
topic except religion.
In
response,
Defendants
this argument. In the opinion of
the court, " laws that distinguish
based on the conduct or event involved
are still impermissible under
the First Amendment if they draw
facial distinctions based on a particular
subject matter and are not
narrowly tailored. "
In this case, the court found the
challenged regulation was indeed
" content based because it draws a
distinction between religious events
and nonreligious events. " Moreover,
the court noted: " Section
7.03 does not necessarily require
permits based on the size of the
event " because " many entertainment
events that are publicized less
than four hours before the start of
the event are permissible no matter
how big the event is. "
The federal
district court
did,
however, acknowledge " the city
imposes those permit requirements
to regulate the competing uses of
public space and to preserve parks
as locations for all San Franciscans
to enjoy, while also providing locations
for expressive activities. " According
to the court, that fact alone,
however, " does not transform the
regulation into a content-neutral
regulation " :
A law that is content based on
its face is subject to strict scrutiny
regardless of the government's
benign motive, content-neutral
justification, or lack of animus
toward the ideas contained in the
regulated speech.
Having found Section
had
argued: " Section 7.03 is content
neutral because it requires permits
based on the type of event, number
of people, and conduct involved,
not the content of expression. "
The federal district court rejected
| PARK S ANDRECRE AT ION . OR G
7.03(h)
imposed content-based restrictions
on speech, the court acknowledged
this park permit requirement could
only stand if it survives strict scrutiny.
In this particular case, the court
noted: " The defendants conceded
at oral argument that that they can
June 2023 - Parks & Recreation

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