UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

MICHAEL BOARDLEY, : : Plaintiff, : : v. : Civil Action No. 07-1986 (JR) : U.S. DEPARTMENT OF THE INTERIOR, : et al., : : Defendants. :

MEMORANDUM

Michael Boardley is a professing Christian who believes

it is his Christian duty and privilege to inform others about the

Gospel of Jesus Christ. Compl. ¶ 7. In the summer of 2007, he

and a few others traveled to Mount Rushmore National Memorial to

distribute free gospel tracts. Id. ¶ 17. On August 9, Boardley

handed out tracts near the entrance to the Memorial without

incident. Id. ¶¶ 18-19. When he returned to the same location

the next day, he was approached by a park ranger, Les Hanson, who

told him that he could not distribute printed material without a

permit. Id. ¶ 26. Hanson informed him that he could obtain a

permit within two days if he requested one from park officials.

Id. ¶¶ 29-30.

Boardley returned to his Minnesota home without

distributing any more leaflets or requesting a permit. Soon

after, though, he called the Mount Rushmore ranger’s office to

ask for a permit in anticipation of a return trip to the park the

next summer. Id. ¶ 31. He encountered some difficulties. He first spoke with a park official who promised to mail him a

permit. Id. ¶ 34. When he did not receive one within a few

weeks, he called another park official and left a message

requesting a permit for a different date. Id. ¶ 36. The

official called back and referred him to the park’s chief ranger,

Mike Pflaum. Id. ¶ 37. He called Pflaum and requested a permit

once more, but in the following weeks, he did not receive a

permit, a permit denial, or a permit application. Id. ¶¶ 39-40.

Boardley then filed this suit against the United States

Department of the Interior, the National Park Service, and five

federal officials. He challenges the validity of

and § 2.52 -- two similar regulations that apply to

conduct at all national parks. Both regulations authorize park

superintendents to designate the locations within each park that

are available for certain activities: “[p]ublic assemblies,

meetings, gatherings, demonstrations, parades and other public

expressions of views” under section 2.51(a), and “[t]he sale or

distribution of printed matter” under section 2.52(a). To get a

permit for these activities, one must fill out a short

application that includes one’s name, the date, time, duration,

nature, and location of the planned activity, and an estimate of

the number of participants. See id. § 2.51(b); id. § 2.52(b).

The park superintendent must issue the applicant a permit

“without unreasonable delay” unless: a prior application for a

- 2 - permit for the same time and location has been made; it

reasonably appears that the activity would present a clear and

present danger to public health or safety; or the number of

persons engaged in the activity, or the length of the activity,

could not reasonably be accommodated. See id. § 2.51(c); id.

§ 2.52(c).1 If the superintendent rejects the permit

application, she must inform the applicant in writing, “with the

reason(s) for the denial set forth.” Id. § 2.51(d); id.

§ 2.52(d).

Boardley contends that both regulations are facially

invalid under the First Amendment because they are unjustified

prior restraints on expression and because they are substantially

overbroad, and under the First and Fifth Amendments because they

are impermissibly vague. He also claims that section 2.52 is

invalid as-applied under the First Amendment, the Fifth

Amendment’s Equal Protection Clause, and the Religious Freedom

Restoration Act (RFRA). He moves for partial summary judgment on

his facial challenges.

The defendants cross-move for partial summary judgment

on Boardley’s facial challenges, and move to dismiss the as-

1 Section 2.52(c) also authorizes the superintendent to deny the application if the location applied for was not designated as available, or the activity would constitute a violation of applicable laws or regulations.

- 3 - applied challenges. The individual defendants move to dismiss

all claims against them on qualified immunity grounds.

Analysis

A. As-applied challenges

1. Constitutional claims

Boardley claims that section 2.52 was applied to him

twice: in the summer of 2007, when Ranger Hanson told him that he

could not distribute printed material without a permit, and again

that fall, when park officials did not give him a permit or a

permit application despite his repeated requests. He contends

that these actions violated the First Amendment because they

“constitute[d] impermissible content- and viewpoint-based

restrictions on constitutionally protected expression in public

fora,” compl. ¶ 73, and that they violated the Fifth Amendment

because they “treat[ed] [him] differently than other similarly

situated individuals and groups on the basis of the content and

viewpoint of his speech,” id. ¶ 99. Each of these claims must be

dismissed.

Boardley does not plead sufficient facts about the

first application of section 2.52 to support either of his

claims. “While a complaint attacked by a [Federal Rule of Civil

Procedure] 12(b)(6) motion to dismiss does not need detailed

factual allegations, a plaintiff’s obligation to provide the

‘grounds’ of his ‘entitle[ment] to relief’ requires more than

- 4 - labels and conclusions, and a formulaic recitation of the

elements of a cause of action will not do. Factual allegations

must be enough to raise a right to relief above the speculative

level.” Bell Atl. Corp. v. Twombly,

(2007) (internal citations omitted). The only alleged fact that

raises the possibility of content-based discrimination is that,

when Boardley’s friend, Mark Oehrlein, asked for a permit to

distribute religious material, an unnamed Mount Rushmore official

told him that he “didn’t like that.” Compl. ¶¶ 51-52. That

allegation is taken as true, but it is not enough to sustain

Boardley’s claim that Ranger Hansen asked him (and not others) to

get a permit because of the religious content of his leaflets.

Though Twombly “has produced some uncertainty as to exactly what

is required of a plaintiff at the pleading stage,” it surely

requires a plaintiff to plead enough facts to “suggest a

‘plausible’ scenario” for his entitlement to relief. Tooley v.

Napolitano,

, *3 (D.C. Cir. Feb. 20, 2009)

(internal citation omitted).

The claims arising from the second application of

section 2.52 -- the failure of park officials to respond promptly

to Boardley’s permit requests -- are moot because Boardley

received his requested permit months in advance of his scheduled

trip to Mount Rushmore. In the fall of 2007, Boardley asked

Mount Rushmore officials for a permit that covered certain days

- 5 - in the summer of 2008. Shortly after he filed this suit in

November 2007, Boardley got his permit, see Supp. Decl. of Mike

Pflaum, ¶ 4, and, in the summer of 2008, he “handed out printed

material, held religious signs, and conducted open air religious

preaching at Mount Rushmore” without hindrance. Dkt. 55, at 1.

Boardley lacks standing to bring as-applied claims against

conduct that caused him no injury. See Lujan v. Defenders of

Wildlife,

(1992).

2. RFRA

Boardley’s RFRA claim will also be dismissed. Under

RFRA, the government may not “substantially burden a person’s

exercise of religion” unless it demonstrates that the application

of the burden “(1) is in furtherance of a compelling government

interest; and (2) is the least restrictive means of furthering

that compelling government interest.” 42 U.S.C. § 2000bb-1. A

regulation is a substantial burden if it forces a person to

engage in conduct that his religion forbids or prevents him from

engaging in conduct his religion requires. See Henderson v.

Kennedy,

, 16 (D.C. Cir. 2001). Boardley “hands out

gospel tracts in public areas because of his sincerely held

religious beliefs concerning Christianity,” compl. ¶ 8, but he

does not allege that he must distribute his gospel tracts at the

United States national parks. Because the challenged regulations

are, “at most[,] a restriction of one of a multitude of means”

- 6 - Boardley can use to spread the Gospel, they do not substantially

burden his exercise of religion. Henderson, 252 F.3d at 17; see

also Mahoney v. U.S. Marshals Serv.,

(D.D.C. 2006) (dismissing RFRA claim because plaintiffs “do not

allege that their religion compels them to engage in [religious]

speech at the time and place and in the manner at issue here”).2

B. Facial challenges

Boardley claims that the regulations are facially

invalid because they are overbroad, unjustified prior restraints

on expression, and impermissibly vague. Because Boardley

emphasizes his prior restraint claim, and it provides the basis

for many of his arguments on the other two claims, I will begin

there.

1. Prior restraint

The permit requirements found in the challenged

regulations are prior restraints because they require individuals

to receive authorization from government officials before

engaging in certain expression. See Forsyth County v.

Nationalist Movement,

(1992). Although there

is a “heavy presumption” against the validity of prior

restraints, Bantam Books, Inc. v. Sullivan,

, 70

2 The dismissal of Boardley’s as-applied claims renders moot the individual defendants’ motion for qualified immunity. Because Boardley did not suffer any constitutional or statutory violations, he is not entitled to damages from any of the defendants.

- 7 - (1963), the government may impose time, place, and manner

restrictions on protected speech in a public forum if the

restrictions (1) are not based on the content of the regulated

speech; (2) are narrowly tailored to serve a significant

governmental interest; and (3) leave open ample alternative

channels for communication. See Clark v. Cmty. for Creative Non-

Violence,

(1984). For good measure, when

the restrictions take the form of a permitting scheme, they must

also be “narrowly drawn, reasonable, and definite,” so that the

officials enforcing them do not have “limitless discretion.”

Niemotko v. Maryland,

(1951).

Boardley concedes that the regulations are content-

neutral. See dkt. 35, at 13. He focuses on the narrow tailoring

and limited discretion requirements. Most of his arguments apply

equally to both regulations, which cover different forms of

expression but are otherwise identical. But a few of his

arguments only relate to section 2.51. I will address those

first.

a. Section 2.51

Section 2.51(a) requires park visitors to obtain a

permit for “[p]ublic assemblies, meetings, gatherings,

demonstrations, parades and other public expressions of views.”

The phrase “other public expressions of views” was probably

intended to cover events like those in the list that precede it.

- 8 - But, on its face, it does not satisfy the narrow tailoring and

limited discretion requirements.3

A regulation is narrowly tailored “if a substantial

portion of the burden it imposes furthers the Government’s

interest.” American Library Ass’n v. Reno,

(D.C.

Cir. 1994). The government claims that sections 2.51 and 2.52

help preserve the scenic beauty and historical value of the

national parks, maintain the cleanliness and tranquility of the

park grounds, and ensure the safety and security of park

visitors. See dkt. 45, at 14. Those are worthy aims, but

section 2.51(a) restricts far more expression than necessary to

achieve them.

Many, if not most, of the visitors to the national

parks engage in “public expressions of views” while there. The

visitor who sports the cap of her local baseball team, wears a T-

shirt supporting a political candidate, or displays a tattoo of

her favorite band, is publicly expressing a view. As is any

visitor who gives his opinion on any issue to a group of any

size. Each of these visitors is required to obtain a permit

3 When faced with ambiguous statutory or regulatory language, courts may apply the rule of ejusdem generis, which “limits general terms which follow specific ones to matters similar to those specified.” Gooch v. United States,

(1936). I will not apply that rule here, however, because I must determine whether the regulation adequately limits officials’ discretion, and I cannot conclude that it is sufficiently limiting by assuming that officials will apply the rule of ejusdem generis to restrict its scope.

- 9 - under the plain language of section 2.51(a) even though their

conduct does little, if anything, to undermine the government’s

stated interests. That is unconstitutional. See, e.g., Cmty.

for Creative Non-Violence v. Turner,

(D.C.

Cir. 1990) (holding that a Washington Metropolitan Area Transit

Authority regulation requiring a permit for “the organized

exercise of rights and privileges which deal with political,

religious, or social matters and are non-commercial” on Metro

property was unconstitutional because it “significantly

restrict[ed] a substantial quantity of speech that d[id] not

impede WMATA’s permissible goals.”).

The breadth of the phrase “public expressions of views”

also invites park officials to exercise nearly unfettered

discretion. Because officials obviously cannot reasonably demand

a permit from all visitors whose conduct falls under section

2.51(a) (baseball caps, T-shirts, tattoos, etc.) their

enforcement of section 2.51 is by definition selective, raising

the specter of enforcement based on the content or viewpoint of a

visitor’s expression. There is no evidence in the record that

such selective enforcement has occurred at Mount Rushmore or

elsewhere. “[T]he success of a facial challenge on the grounds

that [a regulation] delegates overly broad discretion to the

decisionmaker rests not on whether the administrator has

exercised his discretion in a content-based manner,” however, but

- 10 - on “whether there is anything in the [regulation] preventing him

from doing so.” Forsyth County,

n.10.

The National Park Service (NPS) attempted to clarify

the scope of section 2.51(a) after this suit was filed. In a

memorandum to all regional directors and park superintendents,

the NPS director explained that:

The terms “public expressions of views” under

and “demonstrations” under

[6](g) have traditionally been used interchangeably to include ‘demonstrations, picketing, speechmaking, marching, holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent or propensity to draw a crowd or onlookers. This term does not include casual park use by visitors or tourists which does not have an intent or propensity to attract a crowd or onlookers.’

Decl. of Dan Wenk, Ex. H.

This interpretation can only be considered during a

facial challenge to section 2.51 if it has been “made explicit by

textual incorporation, binding judicial or administrative

construction, or well-established practice.” City of Lakewood v.

Plain Dealer Pub. Co.,

(1988). Whether this

interpretation meets that standard is an open question. Even if

it does, the interpretation only creates a new set of problems

for the government. If anything, its definition of “public

expressions of views” gives officials more discretion than the

- 11 - regulation itself, because it allows officials to restrict speech

based on their determination that a person intends to draw a

crowd with her conduct. That determination can easily rest on

impermissible grounds, like an official’s perception that certain

expression is controversial or inappropriate. The First

Amendment does not tolerate that outcome. See, e.g.,

at 763-

64.

b. Remaining Challenges

Boardley’s remaining challenges to the regulations fall

short. He claims that the regulations give officials unbridled

discretion because they permit the denial of a permit application

if “[i]t reasonably appears that the event will present a clear

and present danger to the public health or safety.”

(c)(2);

§ 2.52(c)(2). Other district courts have found

that exact language unconstitutional. See Naturist Soc’y, Inc.

v. Fillyaw,

(S.D. Fla. 1994); United

States v. Rainbow Family,

(E.D. Tex. 1988).

The Fifth Circuit, Fernandes v. Limmer,

(5th

Cir. 1981), and the Supreme Court, Shuttlesworth v. City of

Birmingham,

(1969), have invalidated somewhat

broader language. But the Supreme Court has more recently found

that a local ordinance permitting an official to deny a permit

application if the proposed activity “would present an

unreasonable danger to the health or safety of park users” did

- 12 - not “leave the decision ‘to the whim of the administrator.’”

Thomas v. Chicago Park Dist.,

(2002) (quoting

Forsyth County,

).

Boardley argues that the “clear and present danger”

standard invites park officials to restrict speech they think

will be controversial, as the NPS director’s “intent” standard

does. But divining an individual’s intent is far more subjective

than predicting whether a proposed activity will be dangerous.

The two determinations also occur at different stages of the

process: the “clear and present danger” standard is used to

assess whether a permit application should be granted, while the

“intent” standard is used to evaluate whether a permit is needed

at all. The former determination is likely to be more studied --

the superintendent can digest the applicant’s description of the

event and analyze its implications -- whereas the latter

determination is likely to be more ad hoc -- an official

encountering an ongoing event must make an immediate assessment

of the participants’ intent based primarily on her view of the

proceedings. And while there is no record of why an official

decided that a permit was required in this case, the

superintendent who rejects an application because of the “clear

and present danger” standard must do so in writing, “with the

reason(s) for the denial set forth.”

(d);

- 13 - § 2.52(d). Taken together, these factors limit the ability of

the superintendent to restrict speech she disfavors.

Boardley next asserts that the regulations are invalid

because they require park superintendents to respond to permit

applications “without unreasonable delay,” rather than within

some limited, specified time period. Boardley fears that

officials could “pocket veto” speech they do not like by ignoring

applications until the date of the proposed event has passed.

“Administrative interpretation and implementation of a

regulation are, of course, highly relevant” to the analysis of

this claim. Ward v. Rock Against Racism,

(1989). The defendants submit that permit applications for

expressive activities must be processed within two days at Mount

Rushmore. See Third Decl. of Mike Pflaum, ¶ 44 & Ex. E. That is

but one national park, but in Boardley’s survey of eleven parks,

he discovered that each had a self-imposed deadline of between

three and ten days. See dkt. 50, at 19. Boardley emphasizes the

lack of uniformity between the parks, but as long as they all

have short and definite deadlines -- which they appear to have --

then officials will be unable to simply ignore applications for

speech they do not like.

Boardley next argues that the regulations are not

narrowly tailored because they apply to individuals and small

groups. He cites a handful of cases for the proposition that

- 14 - “[p]ermit schemes . . . that potentially apply to small groups

are nearly always overly broad and lack narrow tailoring.”

America-Arab Anti-Discrimination Comm. v. City of Dearborn,

(6th Cir. 2005). That may be the case, but the

evidence here justifies the broader scope of these regulations.

These regulations do not cover city streets, see Cox v.

City of Charleston,

(4th Cir. 2005), or subway

entrances, Turner, 893 F.3d at 1387, or the local public park,

Grossman v. City of Portland,

(9th Cir. 1994); they

cover places of immense historical significance (like Martin

Luther King, Jr.’s church and the Gettysburg battlefield) and

great natural beauty (like Yellowstone Park and the Grand

Canyon). Unlike people walking in the city center or entering

the subway, visitors to a national park expect a peaceful and

tranquil environment, and the government has a legitimate

interest in providing that experience to them. Even a small

demonstration, or a lone pamphleteer, can disrupt that

experience, particularly in some of the smaller parks. See Decl.

of Dan Wenk, ¶¶ 71-78.

Indeed, individuals and small groups may actually

benefit from these regulations. Park officials use the

information on permit applications to dispatch law enforcement

personnel. See id., ¶ 68. These personnel keep a watchful eye

on the participants in the event, but they also prevent park

- 15 - visitors from interrupting ongoing events. See id. ¶ 72.

Without this law enforcement presence, participants -- especially

individuals or smaller groups -- may be drowned out by counter-

demonstrators, or even verbally or physically attacked. “To

allow unregulated access to all comers could easily reduce rather

than enlarge the park[s’] utility as a forum for speech.”

Thomas,

(quoting Thomas v. Chicago Park Dist.,

(7th Cir. 2000)).

The regulations could be more narrowly tailored; they

could, for example, impose different standards based on the size,

location, or popularity of different parks. But “[t]he

regulation[s] will not be invalid simply because a court

concludes that the government’s interest could be adequately

served by some less-speech-restrictive alternative.” Ward,

.

Finally, Boardley argues that the regulations are not

narrowly tailored because they foreclose two types of expression:

spontaneous expression, because a visitor must wait to receive a

permit, and anonymous expression, because a visitor must include

her name on a permit application.

Spontaneous speech may often be “the most effective

kind of expression,” Grossman,

, but once the

phrase “public expressions of views” is excluded from section

2.51(a), the remaining activities -- “[p]ublic assemblies,

- 16 - meetings, gatherings, demonstrations, [and] parades” under

section 2.51(a), and “[t]he sale or distribution of printed

matter” under section 2.52(a) -- are unlikely to occur in truly

spontaneous fashion. While a short waiting period may restrict

the occasional visitor who wishes to engage in a demonstration,

it also provides park officials with an opportunity to plan for

upcoming events. See Third Decl. of Mike Pflaum, ¶ 55. On

balance, “a substantial portion of the burden [the regulations]

impose furthers the government’s interest.” American Library

Ass’n, 33 F.3d at 88; see also A Quaker Action Group v. Morton,

(D.C. Cir. 1975) (approving requirement that

park visitors apply for a permit 48 hours in advance of a planned

event).

Just as with spontaneous speech, the regulations

impinge only minimally on anonymous expression. Only one person

involved in an activity is required to include her name on the

permit application; the other participants can remain anonymous.

The applicant is only required to give her name when she applies

for the permit, not “at the moment of actual speech.” Green v.

City of Raleigh,

(4th Cir. 2008). And unlike

in Watchtower Bible & Tract Soc’y of New York, Inc. v. Village of

Stratton,

(2002), where the Court invalidated a

permit requirement in part because of its impact on anonymous

speech, there is no evidence in this record that permit

- 17 - applications are available for public inspection. Neither the

applicant nor her fellow participants face much danger of

suffering “retaliation” or “social ostracism” because of these

regulations, McIntyre v. Ohio Elections Comm’n,

(1995), and the limited burden they impose is necessary to

ensure that the permitting process works efficiently.4

2. Overbreadth

Usually, a regulation is only facially invalid if it is

unconstitutional in its every application, see United States v.

Salerno,

(1987), but in the First Amendment

context, “out of concern that the threat of enforcement of an

overbroad law may deter or ‘chill’ constitutionally protected

speech, . . . [t]he showing that [a regulation] punishes a

‘substantial’ amount of protected free speech . . . suffices to

invalidate [it].” Virginia v. Hicks,

(2003)

(internal citation omitted). Courts have recognized that a

4 On the third and final prong, Boardley argues that the regulations do not “leave open ample alternative channels of communication” because they do not “merely limit expressive activity to a specific part of the regulated area or to a limited time frame.” Turner,

. Despite the broad geographic and temporal scope of the regulations, they are valid because they do not ban park visitors from engaging in certain forms of expression, see Ward,

, and, unlike the regulation invalidated in Turner, they allow park visitors to engage in most common forms of expression without a permit. See also United States v. Kistner,

(8th Cir. 1995) (finding that section 2.52 leaves open sufficient alternative means of communication); United States v. Sued,

(S.D.N.Y. 2001) (finding that both section 2.51 and 2.52 leave open ample alternative channels for communication).

- 18 - substantial overbreadth claim is similar, if not identical, to a

claim that a prior restraint is not narrowly tailored. See,

e.g., Turner,

(Williams, J., concurring)

(calling the two claims “the same thing in different words”);

Alderman v. Philadelphia Hous. Auth.,

, 173 n.57 (3d

Cir. 1974) (noting the “overlap” between the two analyses).

Accordingly, Boardley’s overbreadth claims will be resolved as

his prior restraint claims were.

3. Vagueness

A regulation is unconstitutionally vague under the

First and Fifth Amendments if “it authorizes or even encourages

arbitrary and discriminatory enforcement.” Chicago v. Morales,

(1999). Boardley argues that the phrase

“public expressions of views” in section 2.51(a) is vague. I

have already found that the phrase affords officials nearly

unfettered discretion, so, for the sake of symmetry, I now find

that it is impermissibly vague as well.

Conclusion

The phrase “public expressions of views” in

(a) violates the First and Fifth Amendments. It will be

severed from the rest of that section because the resulting

regulation is “fully operative as law” and because the Department

of the Interior would likely have promulgated the regulation even

if it could not have included the invalid phrase. Buckley v.

- 19 - Valeo,

(1976). The defendants’ motion for

partial summary judgment on the remainder of Boardley’s facial

challenges will be granted, as will their motion to dismiss

Boardley’s as-applied claims. The individual defendants’ motion

to dismiss all claims against them on qualified immunity grounds

will be denied as moot.

An appropriate order accompanies this Memorandum.

JAMES ROBERTSON United States District Judge

- 20 -