Permitting for Commercial Photography in Public Parks not a Violation of the First Amendment

by Eric Christianson

Havlak v. Village of Twin Oaks

Federal 8th Circuit Court of Appeals, July 26, 2017

The Village of Twin Oaks in St. Louis County, Missouri (population approximately 400) is home to an 11 acre park with walking trails, a lake, waterfall, gazebo, and a “Claude Monet-style” bridge. This picturesque park offers a number of good backdrops for photographs. Especially after renovations and upgrades in 2011, the park became an extremely popular location for commercial photography. Sometimes as many as eight photographers and their subjects were competing for locations in the park at the same time. The large numbers of wedding parties began to dominate park facilities including using the restrooms as dressing rooms. Some photographers had subjects pose in dangerous areas or even set up outdoor studios for, “shooting multiple subjects in an assembly-line fashion.”

To limit the disruption caused by this activity to other users of the park, the local Board of Trustees erected signs notifying photographers of the previously existing ordinance prohibiting all commercial activity (including photography) in the park. They also asked the county police officer who enforces the village’s ordinances to remind commercial photographers of the ordinance and ask them to leave. Josephine Havlak a local professional photographer filed a lawsuit against the city claiming that the ordinance was a violation of her First Amendment right of free speech. She claims that commercial portraiture conveys, “an expressive message in a manner similar to the work of American portrait painter John Singer Sargent.”

In response to the lawsuit, the Board of Trustees amended its park ordinance to create a permit process for the commercial use of park facilities.  The permit costs $100 and its issuance is based on five factors including: (1) risk of damage or injury, (2) disruption of the public’s use of the park, (3) crowding due to anticipated attendees, (4) the nature of the requested activity, and (5) the time and duration requested for commercial purposes. The Board members expressed that this permitting process helped to balance the interest of commercial photographers with other park users. The permitting fee helps to fund the administration of the permit, including especially the increased burden that commercial users place on police officers. Havlak, however, was not satisfied with the permitting process and, although she has never applied for a commercial permit, amended her lawsuit to request that the permitting process be struck down as an overbroad violation of the First Amendment. The district court denied Havlak’s request, and she appealed to the Federal 8th Circuit Court of Appeals.

Courts generally permit content-neutral restrictions that place “time, place, or manner” restrictions on protected speech, but any sort of prior restraint like a required permit does draw the court’s scrutiny. A previous decision by the 8th Circuit stated that: “Any permit scheme controlling the time, place, and manner of speech must not be based on the content of the message, must be narrowly tailored to serve a significant governmental interest, and must leave open ample alternatives for communication.” The permitting process must also contain “narrow, objective, and definite standards” The court used these elements to analyze the ordinance.

Content Neutrality Any restriction on speech that regulates content is subject to a higher level of scrutiny. The factors used to determine whether a permit will be issued by the Village of Twin Oaks do not include the content of any commercial speech. Nevertheless, Havlak claims that the higher burden on commercial photographers, restricts her message of “family, peace, tranquility, and love.” The court did not find any evidence that the Village showed any intent to discriminate against these or any other values.

Narrowly Tailored In restricting speech, courts require that laws be “narrowly tailored” to serve a significant government interest. In this case, the government interest is clearly to reduce congestion and maintain park safety. Havlak argued that the law was not narrowly tailored in four ways: (1) it applies to groups of all sizes no matter how small (2) it does not focus solely on areas with a history of congestion (3) the application period (2 days for small groups, 14 days for larger groups) could chill artistic expression, and (4) the administration fee is too high. In all four cases the court found that the law was in fact narrowly tailored to advance government interests.

Ample Alternatives Restrictions on the time place and manner of protected speech are generally allowed as long as ample alternatives are present. Havlek argued that this park is so unique that no alternative venue could possibly exist. The court pointed out that the natural attributes of the park exist throughout the St. Louis Metro Area and that Havlak had not even used this park before she knew of the ordinance despite doing hundreds of photo shoots a year.

Licensing Discretion When regulating protected speech a law must contain “narrow, objective, and definite standards” to guide the licensing authority. This is to prevent the government from having too much discretion to discriminate against speech they find objectionable. Havlak argued that the ordinance is “impermissibly vague” and that the Village has unconstitutionally broad discretion to approve or deny permits. Here too the court sided with the Village finding that the factors used to determine whether a permit would be issued are sufficiently specific to guide the issuance of permits.

In the end, the court concluded that the Village of Twin Oaks’ permitting process survives constitutional scrutiny. Despite this permitting process, Havlak remains free to express her message of family, peace, tranquility, and love.





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