The First Amendment prohibits laws “abridging the freedom of speech” and is applicable to the states through the Fourteenth Amendment. Further, the First Amendment is not limited to written or spoken words as mediums of expression. It also includes pictures, films, paintings, drawings and engravings.
Such freedom of artistic expression is not absolute. As illustrated by the case described herein, the government may impose reasonable time, place and manner restrictions on First Amendment activities. Regulation of First Amendment activities, however, must be content neutral, serve a significant governmental interest and leave ample alternative channels for communication for artistic expression.
In the case of Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, 2016 U.S. Dist. LEXIS 91450,163 F.Supp.3d 592 (E.D. Mo. 7/14/2016), the issue before the federal district court was whether “a municipal ordinance of the Village of Twin Oaks regulating commercial activity within Twin Oaks Park” was “an unconstitutional prior restraint” on expressive activity protected by the First Amendment, specifically “engagement in commercial photography.”
Josephine Havlak has been a professional photographer since 1979, operating as Havlak Photographer, Inc., a business that focused on wedding and portrait photography. For Havlak, Twin Oaks Park was an excellent place to take photos of their clients, such as wedding groups and high school seniors.
Twin Oaks Park is approximately 11 acres in total, including a lake, playground, basketball court and wooded area. The area that commercial photographers, such as Havlak, tend to use for their work is a small area in which there is a waterfall and a small, picturesque wood bridge spanning a creek. This is also the most popular area for other patrons of the park.
Commercial Activity Ban
Havlak initiated her lawsuit in February 2015. At that time, the Village had an ordinance that prohibited use of the park for commercial purposes. Two signs were posted in the park that stated: “No commercial activity, including commercial photographers.” In the summer of 2013, when the ban on commercial activity was in place, a commercial photographer approached the Village Board of Trustees and suggested a permitting process rather than a ban, believing such a process would limit amateur photographers whom he believed were the problem. At about the same time, the ACLU contacted the board and expressed concern that the ban, as it affected commercial photographers, might violate the First Amendment.
The board began looking at all options for balancing the competing interests at issue, such as a permitting process for commercial photographers only on weekends, or only for larger groups. None of these options, however, addressed all the problems that arose from commercial photographers attempting to take photographs of people within the small, confined area that conflicted with other park users.
Commercial Activity Permit
On June 17, 2015, the Village passed Ordinance No. 459, “Regulation of Solicitations and Commercial Activities,” which superseded the previous ordinance. In pertinent part, Ordinance 459 prohibited the use of park property, unless the Village Board of Trustees had issued a permit. The intent of the permitting process was to “help to ensure that the Village is aware of the activity taking place within the park, that the proposed date/time/location does not conflict with the scheduled activities/events/operations, and that no harm is done to the landscape of the park.”
In reviewing a permit request, the Ordinance required the Board of Trustees to consider the “disruption of or conflict with the public’s use and enjoyment of the park” and whether “the issuance of such permit may result in crowded or congested conditions due to the anticipated number of attendees for a planned event.” Further, a permit request review would consider whether a commercial activity would exceed one hour and whether the number of people involved would exceed 10. In so doing, a permit review request would also consider whether “the time requested conflicts with a period of peak visitation to the park or other scheduled events, activities or operations.” The permit fee was set at $100.
Taking commercial photographs in the park without a permit would violate the ordinance and subject individuals and businesses, including Havlak, to penalties of up to $1,000 in fines or 90 days in county jail pursuant to the Village Code’s general penalty provision. Faced with the threat of prosecution for violating the ordinance, Havlak claimed she was “refraining from engaging in commercial photography in the Park.” According to Havlak, complying with the application process would chill her First Amendment speech rights.
Commercial Photography Discrimination
As characterized by Havlak, the challenged ordinance was “akin to a content-based regulation because it discriminates between commercial photographers and amateur photographers.” That being said, Havlak recognized the “safety and fair use of the Park for all users are legitimate government interests.” Havlak, however, argued, “the ordinance’s restriction of commercial activity such as commercial photography has no relation to these [park safety and fair use of the park] interests.”
According to Havlak, “non-commercial and commercial photography are equally disruptive to public use of the Park, and that any distinction between the two is meaningless.” As a result, having “failed to articulate any harm exclusively caused by commercial activity,” Havlak contended the Village had “not met their burden to show that the ordinance serves a significant governmental interest.”
Moreover, Havlak maintained the ordinance was unconstitutional because three criteria to be considered by the governmental decisionmaker in deciding to issue a permit were “too vague,” specifically “disruption of the public’s use and enjoyment of the Park, use of models or equipment, the sale of products or equipment.” Havlak also maintained “a different park is not an adequate alternative forum in which to take the desired photographs” because Twin Oak Park was “a unique and beautiful space” and “photographic artists have a right to decide the appropriate setting for their expressive works.”
Accordingly, Havlak petitioned the federal district court to issue a “declaratory judgment that the ordinance is unconstitutional” and issue an order enjoining (i.e., prohibiting) the Village from enforcing the ordinance against Havlak. In response, the Village claimed, “the challenged ordinance withstands constitutional scrutiny” because the ordinance was “narrowly tailored to serve a significant government interest and leaves open ample alternatives for communication.” In so doing, the Village asserted “a significant interest in mitigating disruption of Park activities and ensuring the public is able to use the relatively small Park.” Further, the Village maintained Havlak had “ample alternative channels for their photographic expression, namely, a significant number of parks located in the greater St. Louis area that provide a similar stage for photographs.”
Photo Shoot Congestion
Havlak testified that having to get a permit in advance of a photo shoot in the park would make it almost impossible for her to use the park because sometimes she changes location at the last minute due to weather and lighting. She testified that a wedding party was most commonly comprised of about 15 people, although on occasion, there could be as many as 30 people, and that a shoot never lasted more than one hour. Havlak further testified that she had never seen, or even heard of, squabbles between commercial photographers who might be at the same park site at the same time and that she saw no need for the ordinance.
Ray Slama (chair of the Village’s Board of Trustees) explained that people using the park congregated primarily in the area of the bridge, favored also by commercial photographers. He witnessed up to eight commercial photographers with wedding parties at the same time competing for space in this area, obstructing pathways, “taking over the gazebo,” and placing subjects in dangerous places. He testified that he received complaints from other park users about congestion in the park due to the presence of commercial photographers and their subjects.
Slama described the decision-making process of the Board of Trustees in adopting Ordinance No. 459. Slama testified that the purpose of Ordinance No. 459 is to “ensure that the Village is aware of activity taking place in the Park, so that proper planning and security can be arranged, and to ensure that no harm is done to the landscape.” According to Slama, the board wanted to “balance the interests of the commercial photographers and the people wanting their photographs taken in the Park, with the interests of the other patrons of the Park enjoying it per its intended use.” According to Slama, the amount of $100 for the permit fee was arrived at by canvassing other such ordinances, and in light of the cost of approximately $100 for having a police officer at the park for about two to three hours.
Professional Photographer Testimony
Joel Marion, a professional photographer since 1971, testified that in the past, he used Twin Oaks Park three or four times a week in seasonal times, but now, the $100 fee per session was prohibitive for him and his customers and so he goes to other parks for his outdoor shoots. Marion’s testimony comported with Havlak’s with respect to the need for spontaneity due to weather and with respect to never having experienced squabbles with other photographers or users of a park.
Contrary to Havlak’s and Marion’s testimony, Scott Shy, also a commercial photographer, testified that he experienced conflicts between commercial photographers and the general public in the park and described one occasion when more than six photographers and their subjects were in the area near the bridge and “took over.”
Shy also realized he was in the way of “the foot traffic” in the park during his photography sessions, noting that professional photographers tend to get very focused on their work when they are attempting to capture the proper shots. Shy believed that Ordinance No. 459 was a fair way to deal with the competing interests, and that the $100 fee may be fair, although it deters him from using the park.
According to the federal district court, “the degree of First Amendment protection” to which speech is entitled “is not diminished merely because the speech is sold rather than given away.” Further, the court noted, “Parks are traditional public forums, historically associated with the free exercise of expressive activities.”
As characterized by the court, Ordinance No. 459 imposed “a prior restraint on such conduct” because a permit was required “to engage in commercial photography in the Park.” The court noted that an ordinance imposing a prior restraint on the free exercise of expressive activities in a public park would carry a “heavy presumption against the Ordinance’s validity.” The court, however, recognized “government, in order to regulate competing uses of public forums, may impose a permit requirement on those wishing to engage in protected speech in that forum.”
Regulations of the use of a public forum that ensure the safety and convenience of the people are not inconsistent with civil liberties but are one of the means of safeguarding the good order upon which civil liberties ultimately depend.
That being said, the court acknowledged that a permit scheme governing use of a public park must meet the following constitutional requirements:
[Regulations] may not delegate overly broad licensing discretion to a government official. Further, 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.
Content-based laws — those that target speech based on its communicative content — are presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests...
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, or if a law, though content neutral on its face, cannot be justified without reference to the content of the regulated speech, or was adopted by the government because of disagreement with the message the speech conveys.
Different Levels of Interference
In this particular instance, Havlak had argued that the challenged ordinance was “a content-based permit scheme” because “amateur photography in the Park and photography by the Village itself in the Park are not regulated.” The court rejected this argument. In treating commercial and amateur photographers differently, the court found the ordinance in no way reflects a “content preference.” On the contrary, the court found the ordinance could be “justified without reference to the content of the regulated conduct.” Specifically, the court found the different treatment was “based on different levels of interference with use and enjoyment of the Park by all”:
The evidence shows that commercial photographers’ sessions last for longer periods of time, use more large equipment, are more intrusive, and likely involve more subjects in one group, than amateur photographers’ photographing conduct...
Given the size and configuration of the area of the Park that Plaintiffs and other commercial photographers wish to use for their photography, the Village has a significant interest in coordinating when and how many commercial photographers use the Park at any given time.
Substantial Government Interest
Further, in the opinion of the federal district court, the challenged ordinance was “narrowly tailored to serve significant government interests.” In this particular instance, the court noted evidence that “professional photographers and their subjects would often block other Park users from enjoying the bridge and nearby areas of the Park.” In response, the court found the Village had developed a “content-neutral” permit scheme that required photographers to obtain a permit before conducting commercial photography activity in the park:
The object of the permit system is not to exclude communication of a particular content, but to coordinate multiple uses of limited space, to assure preservation of the park facilities, to prevent uses that are dangerous, unlawful or impermissible under the Park District’s rules and to assure financial accountability for damage caused by the event.
$100 Fee Requirement
As a general principle, the court acknowledged, “the government may not tax the exercise of a constitutionally protected right.” That being said, the court recognized “an ordinance requiring a person to pay a license or permit fee before he can engage in a constitutionally protected activity” would not necessarily violate the Constitution “so long as the purpose of charging the fee is limited to defraying expenses incurred in furtherance of a legitimate state interest”:
Such a fee is not excessive, even if it is more than nominal, where the fee is imposed to meet the expense incident to the administration of the statute requiring a license for engaging in protected activity and to the maintenance of public order in the matter licensed.
In the opinion of the court, the Village had adequately demonstrated a relationship between the permit fee and its legitimate purpose.
Here the fee correlates to the expenses incurred for an officer, and Defendants have presented sufficient credible evidence that the amount of the permit fee is reasonably related to the legitimate goal of assuring the safety and enjoyment of the Park by all its users.
Moreover, the court found “the amount of the fee is not variable, so the danger of discretionary abuse by the permitting authority is absent.”
Discretion and Standards
As noted by the court, to pass constitutional muster, a regulation must “contain adequate standards to guide the official’s decision” whether or not to issue a permit.
Even content-neutral time, place and manner restrictions can be applied in such a manner as to stifle free expression. Where the licensing official enjoys unduly broad discretion in determining whether to grant or deny a permit, there is a risk that he will favor or disfavor speech based on its content.
In this particular instance, the court found “the criteria set forth in Ordinance No. 459 to guide the determination of whether to grant a permit” were “reasonably specific and objective, and do not leave the decision to the whim of the administrator.” Moreover, the court found the permit criteria, including the three criteria specifically challenged by Havlak, “do allow for the consideration of the content of the expression involved.”
Alternative Channels of Communication
In the opinion of the federal district court, “other public parks in the St. Louis area, if not in the Village” offered “attractive landscape for outdoor wedding and portrait photography” that satisfied the “ample-alternative-channels requirement.” In particular, the court noted commercial photographers “may use Twin Village Park by obtaining a permit” and have available “numerous other parks in the area with landscapes that would allow for the photographers’ full artistic expression, such as the parks Havlak herself testified she used over the years.” As a result, the court concluded, “Ordinance No. 459 satisfies the ample-alternative-channels requirement.” In so doing, the court noted: “The First Amendment does not guarantee speakers access to every, or even the best channels or locations for their expression.”
As a result, the federal district court concluded: “To the extent Ordinance No. 459 applies to protected expressive activity engaged in by Plaintiffs [Havlak and Havlak, Inc.], the ordinance is content neutral and does not violate the First Amendment.” The court, therefore, entered a declaratory judgment in favor of the Village.
James C. Kozlowski, J.D., Ph.D., is an Attorney and Associate Professor in the School of Recreation, Health and Tourism at George Mason University. Click here for a link to a webpage with law review articles archive (1982 to present).