A unanimous panel of the DC Circuit Appeals Court ruled in favor of plaintiff Michael Boardley, who challenged a National Park Service rule requiring him to obtain a permit before distributing religious leaflets at the Mount Rushmore National Memorial. As it pertains to the area in each of our 391 national parks that has already been designated a public forum, the court found the rule to be overbroad, and thus in violation of the First Amendment.
In her opinion (pdf), Judge Janice Rogers Brown emphasized that permit restrictions are especially dubious when applied to small groups and lone pamphleteers, and that the rule as written needlessly threatens protected speech the government has no interest in restricting:
The NPS regulations target much more than necessary. If a Girl Scouts leader musters her scouts onto a pavilion in a “free speech area” of Glacier National Park and proceeds to lecture them about the effects of global warming, she will have conducted both a “meeting” and a “gathering” (perhaps also an “assembly”) for which a permit would have been required. An elementary schoolteacher who leads eight students on an excursion to the Canyon de Chelly National Monument and, within a “free speech area,” shows off her best imitation of a traditional Navajo dance presumably has hosted an unlawful “demonstration.” If a believer in Creationism visits the Hagerman Fossil Beds National Monument and, within a “free speech area,” quietly hands out literature disputing the theory of evolution, he is guilty of “distribut[ing] . . . printed matter” without a permit. Under a plain reading of the NPS regulations, all of this speech is banned unless a permit is first acquired, even though none of it remotely threatens any of the government’s interests.
This case did not hinge on the religious content of the speech in question, but the impact of the rule on religious expression was front and center. Judge Brown had no need consider Boardley's claim that the Religious Freedom Restoration Act was violated, having found the regulations unconstitutional on First Amendment grounds.
She did note that the Park Service may still be able to rewrite guidelines to require permits for large groups. She also conceded that some small groups, "such as Westboro Baptist Church", may "strain the resources of a park", but found the permit regulations too burdensome, and the threat too rare, to justify such broad restrictions.
