National Park Service Struggles to Rework Free-Speech Rules

In 2007, two students holding a paper sign protesting the war in Iraq ran afoul of free-speech regulations in Rocky Mountain National Park.

After negotiating with park officials, they found a workaround: They wrote their message on their T-shirts, which the National Park Service considers akin to a bumper sticker and, therefore, allowed under park rules.

These rules regarding protests and the freedom of expression differ depending on the park.

For example, officials in Grand Teton and Yellowstone National Parks have for a decade required the Buffalo Field Campaign, an environmental group critical of the National Park Service’s bison management, to apply for a permit to put up tables and hand out literature inside so-called “First Amendment expression areas.”

Further, the group has also complied with an NPS request to put up signs by the tables saying, “This group is expressing First Amendment rights. These activities are not connected with or endorsed by the National Park Service.”

BFC media coordinator Stephany Seay says working with Grand Teton officials to get free speech permits has been easy, but “we do feel that having to do so is a violation of First Amendment rights. The entire United States is a free speech zone, or should be according to the Constitution.”

In another case–one that could rewrite these rules entirely–Michael Boardley of Coon Rapids, Minn., attempted in 2007 to hand out religious tracts without a permit in a free speech zone at Mt. Rushmore National Memorial in South Dakota. He was stopped by a park ranger for not having a permit, so he returned home and requested a permit application by phone.

The application, which required a name and address, didn’t arrive in the mail until after he sued the government.

Boardley’s case worked through the system and, in August, the U.S. Court of Appeals for the District of Columbia Circuit ruled unconstitutional the NPS regulations requiring visitors wishing to express themselves to get a permit, as well as the set-aside areas First Amendment expression.

The court ruled the NPS regulations are a particular problem for individuals and small groups, who often express themselves spontaneously and sometimes anonymously.

“If an individual comes upon a (duly licensed) antiwar protest at a national park and wishes to don a ‘support the troops’ pin in response, must he first apply for a permit or otherwise risk being penalized for engaging in an unlicensed ‘demonstration?’” the court asked. “This is a major deprivation of free speech, and it falls almost exclusively on individuals and small groups.”

Anyone expressing themselves in nearly any way without a permit risks being penalized, the court wrote.

The U.S. Department of Justice had until Sept. 27 to decide whether to ask for a stay on the decision, but chose not to.

Now, NPS officials are scrambling to figure out how to regulate free speech in national parks; new rules are expected to appear in the Federal Register soon, according to an NPS spokesman.

In the meantime, the incongruous rules and practices continue, differing from park to park.

While Muir Woods National Monument in California and Great Smoky Mountains National Park in Tennessee clearly mark their free speech areas, Colorado National Monument superintendent Joan Anzelmo said the western Colorado park has no designated free speech areas and has had no requests for free speech permits in the last five years.

Yellowstone National Park has nine unmarked sites designated for public expression, and the park receives up to five permit applications each year, according to park spokesman Al Nash.

Grand Teton National Park has about 12 unmarked sites in popular areas designated as free speech zones, but park officials will consider other areas if a gathering of people doesn’t harm park resources, said Grand Teton spokeswoman Jackie Skaggs. At least six permits have been issued in the past five years, she said.

But they’re not always needed: On July 4 in Grand Teton, a group of gun owners marched around Jenny Lake without a permit.

“They simply wandered around the area with their guns and talked to visitors about the new federal gun law in national parks,” Skaggs said. “If they had preferred to hand out literature, they would have needed a First Amendment permit.”

Colorado National Monument and Glacier National Park have similar approaches.

“We don’t have any expression zones,” Glacier NP spokesman Wade Muehlhof said. “The park used to have those, but they were done away with a number of years ago. Each case is evaluated on visitor impact and resource impact.”

The park has issued 28 First Amendment permits since 2005, and there have been no violations in that time.

“We try and be real proactive,” Muehlhof said. “We try and quickly identify what it is they are trying to do and issue them a permit.”

While it works out how to apply the court ruling, NPS will no longer require permits for individuals and groups of 25 people or fewer, said NPS spokesman Jeffrey Olson.

But it’s still unclear how NPS will apply the ruling to designated free speech zones and whether they’ll be eliminated anytime soon.

“Courts have been very clear that people do not have an unqualified right to demonstrate wherever and whenever they choose,” Olson said. “Not all parks and not all areas of parks are suitable for demonstrations and leafleting. This Court of Appeals focused on the need for a small group exception.”

But the court also focused on the regulations’ one-size-fits-all approach. The agency, the ruling says, could easily draw up rules prohibiting harassing speech while requiring permits for demonstrations only in sensitive areas or where there could be a security problem.

Olson said, for now, NPS is defending its free speech zones because the court overturned the agency’s regulations only to allow individuals and small groups to have their say. The court, he said, did not overturn NPS rules making that say permissible only in designated spots.