June 2023 - Parks & Recreation - 30

LAW REVIEW
involving free expression without
violating the First Amendment
and also collect fees that fairly
reflect costs incurred by the city
in connection with such activity " :
Governments may impose
a permit fee that is reasonably
related
to
legitimate contentneutral
considerations, such as
the cost of administering the
ordinance, the cost of public
services for an event of a particular
size, or the cost of special facilities
required for the event....
Here, the government submitted
evidence to demonstrate
that the $39 permit fee is used
to offset some of the city's administrative
costs with respect to
processing the permit requests;
the evidence also shows that
the refundable deposit is used
to encourage permit holders not
to cause damage to the park.
Indeed, nothing about these requirements
on their face render
them not narrowly tailored.
In this particular instance,
the federal district court further
found: " Plaintiffs have not offered
any evidence to demonstrate that
the permit fee and refundable deposits
are unreasonable, arbitrary,
or unrelated to the purpose of
administrating the processing of
permits " :
Plaintiffs have not offered any
evidence to demonstrate that the
$39 fee requirement or the $250
refundable deposit operates as a
burden that inhibits the use of
San Francisco's public parks
as a means of expressing one's
First Amendment rights.
deed,
Induring
oral
argument
plaintiffs conceded that the payment
of the $39 permit fee is not
in fact burdensome to plaintiffs.
30 Parks & Recreation | JUNE 2 0 2 3
Plaintiffs also had argued " the
insurance requirement of Section
7.03 makes the regulation not narrowly
tailored. " The federal district
court rejected this argument:
Section 7.06(d) states that a
permit applicant is not " required
to comply with the provisions of
Subsection (b)(2) pertaining to insurance
if the activity proposed is
protected by the First Amendment
of the U.S. Constitution and the
applicant produces evidence that
complying with those provisions
is impossible or so financially burdensome
that it would preclude the
applicant from using park property
for the proposed activity. " S.F.
Park Code § 7.06(d).
In this case, the court found:
" Plaintiffs do not argue that they
attempted to apply for this exemption;
nor do plaintiffs argue how
applying for such exemption would
be burdensome, or that they would
not qualify for this exemption. "
Having found Plaintiffs had not
met their burden to show that Sections
7.03(m) was not narrowly
tailored to serve significant governmental
interests, the federal district
court denied Plaintiffs' preliminary
injunction motion to enjoin this
subsection of the regulation requiring
a park permit for sound amplification.
Plaintiffs appealed.
Appeal to Ninth Circuit
In a subsequent appellate opinion,
Stewart v. City & County of San
Francisco, 2023 U.S. App. LEXIS
3811 (9th Cir. 2/23/2023), the U.S.
Court of Appeals for the Ninth
Circuit Court limited its review to
the district court's denial of Plaintiffs'
motion for a preliminary injunction
to enjoin enforcement of
San Francisco Park Code § 7.03(m)
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requiring a permit to " conduct or
sponsor any event which utilizes
sound amplification equipment. "
Sound Amplification Permit
In the opinion of the federal appeals
court, the Section 7.03(m)
permit requirement for the use of
sound amplifying equipment in the
City's parks " constituted a prior
restraint on speech. " The appeals
court, however, acknowledged: " A
city may 'promulgate permit systems
that place reasonable time,
place, and manner restrictions on
speech in a public forum' " :
To withstand constitutional
scrutiny, a permit
requirement
must not be based on the content
of the message, must be narrowly
tailored to serve a significant
governmental interest, must leave
open ample alternatives for communication,
and must not delegate
overly broad licensing discretion to
a government official.
In this particular instance, the
federal appeals court found: " Section
7.03(m) is content-neutral as
it applies to all events regardless
of content. " As described by the
appeals court, " Speech-regulating
rules are content-neutral when the
rule is not related to the subject or
topic of the speech. " Further, the
appeals court acknowledged " the
City's interest in protecting parks
from excessive noise is significant. "
Moreover, the appeals court
found the City's concern in this
particular case was not " speculative "
based upon complaints
generated by Plaintiffs' use of unpermitted
amplified sound in the
City's parks. Further, the appeals
court found the City's " substantial
interest in limiting sound volume
is served in a direct and effective
June 2023 - Parks & Recreation

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