Are National Parks Free Speech Free Zones?

by Dr. Gerard Emershaw

(Photo by Stephanie Schmidt)

 

The Grand Canyon is perhaps the most breathtaking natural feature in the United States. Its colorful formations and endless vistas have become veritable symbols of freedom. Among the beautiful and ancient formations in Grand Canyon National Park, a visitor will also find signs which read:

This area has been set aside for individuals or groups exercising their Constitutional First Amendment Rights. The National Park Service neither encourages or discourages or otherwise endorses these activities.

The areas near these eyesore signs are “free speech zones.” In essence, this means that the rest of the glorious Grand Canyon is an area where First Amendment rights are not recognized despite the fact that the First Amendment states: “Congress shall make no law … abridging the freedom of speech.” According to the National Park Service Grand Canyon website:

Freedom of speech, press, religion, and assembly are constitutional rights. However, the courts have recognized that activities associated with the exercise of these rights may be reasonably regulated to protect park resources. The necessity of a permit to conduct First Amendment activities is determined by the group size.

A small group is defined as “25 people or less.” A “small group” is not required to obtain a First Amendment Permit if they are located within a park designated First Amendment site and have no more than leaflets, booklets and/or hand held signs. A permit is required for any small group that:

a. wants to hold a demonstration or distribute and/or sell printed matter somewhere outside a designated First Amendment area.

b. wants to use equipment (i.e. tables, banners, platforms, etc.) even if it is within a designated area.

c. is merely an extension of another group already availing itself of the 25 person maximum.

d. wants to guarantee they will have priority for the use of a location, including the designated First Amendment areas.

A large group is defined as “more than 25 people” and is required to obtain a First Amendment Permit even if they are utilizing a park designated First Amendment site.

“Special events” which fall under these rules include distribution and/or sale of printed matter, religious services, public demonstrations or assemblies, etc.

“Free speech zones” have been justified by appealing to what is known as “time, place, and manner” restrictions on freedom of speech. In Grayned v. City of Rockford (1972), the Supreme Court expressed the key issue: “The crucial question is whether the manner of expression is basically incompatible with the normal activity of a particular place at a particular time.” For example, if protesters were to stage a mass demonstration at the Grand Canyon, it would arguably not be compatible with the normal tourist activities of this National Park. These “time, place, and manner” restrictions must satisfy four criteria:

1. Be content neutral
2. Be narrowly tailored
3. Serve a significant governmental interest
4. Leave open ample alternative channels for communication

When federal courts examine “time, place, and manner” restrictions, they will employ intermediate scrutiny. In order to satisfy intermediate scrutiny, “the challenged law must further an important government interest by means that are substantially related to that interest.” Intermediate scrutiny lies between strict scrutiny, which the government usually has difficulty satisfying, and rational basis review, which the government can nearly always satisfy.

In the case of the Grand Canyon in particular and other similar National Parks in general, is the government able to satisfy intermediate scrutiny here? Content is not implicated. Regardless of the political view that one espouses, he or she may only exercise freedom of speech by demonstrating, presenting a religious service, or handing out leaflets in “free speech zones” (and only with a permit if done by a larger group) within the park and may not do so elsewhere. These restrictions serve a “significant governmental interest” of allowing Americans and other visitors to enjoy the park. These “free speech zones” are themselves the alternative channels for communication. However, these restrictions are not “narrowly tailored.” While restricting the freedom to organize and carry out large scale demonstrations through use of these “free speech zones” may be necessary to serve the interest of enabling others to use the park for enjoyment, doing so for single individuals or smaller groups is not necessary. The question of where to draw the line in terms of size may be difficult to determine, but it is clear that a single individual who wishes to hand out leaflets, give a speech, or carry a picket sign will not adversely affect the overall enjoyment of visitors to the Grand Canyon.

My new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong presents Emershaw’s Individualist State, a minarchist formulation of government in which the vast majority of real estate—including National Parks and the like—are privately owned. In such a society, what would that mean for organized protest? Ownership of real estate includes the right to exclude others. Therefore, if John or Jane Doe were the owners of the Grand Canyon, they would be able to prevent any and all protests and limit speech in very significant ways. The First Amendment only protects the infringement of free speech by the government. If all streets which are now public were also privately owned, the owners of this infrastructure would also have the right to limit protests and other similar events. Would this endanger free speech?

The answer is no. A private ownership society such as that in Emershaw’s Individualist State would be very different than the semi-socialist society of the contemporary United States. The expression of free speech would also be quite different. It is likely that entrepreneurs would seize upon the opportunity and provide space that protesters could rent in order to demonstrate. While some owners of these spaces might refuse to rent the space to individuals espousing certain political or social views, many would only be interested in earning a profit regardless of the message. Furthermore, there would likely emerge private “protest spaces” owned by individuals all over the political spectrum.

But does this mean that free speech would no longer be free? If one would have to have the funds to rent “protest space,” does that mean that free speech would only be available to those affluent enough to be able to afford the price of the rent? While some owners of “protest space” might make it available for free, this is not necessarily true. Furthermore, there may simply not be choice locations of “protest space” available for free or even for rent.

A truly free society in which the government is a night-watchman that acts as a referee for a truly free market and refrains from doing anything other than protecting the life, liberty, and property of human beings would be a society which is more free, more peaceful, and more affluent than the United States is at present. Nevertheless, there would still be many occasions on which individuals might desire to protest or the like.

The nature of the world and of free speech has been transforming before our eyes due to technology. The Internet affords the opportunity for individuals to freely spread their messages throughout the world via the use of social media, websites, e-mail messages, etc. A minarchist government would have little power to do much that was objectionable, but the Internet would provide an effective tool to protest against the night-watchman government as well as to protest against private entities.

And, of course, civil disobedience will still remain an effective tool of protest in Emershaw’s Individualist State. In jaded modern society, even large sanctioned protests hardly garner much attention. But civil disobedience has historically raised consciousness. The fact that protests during the Civil Rights Movement were often met with heavy-handed government reaction helped the cause. Overall, a freer private ownership society would provide countless benefits compared with a semi-socialist society. There would be more speech and not less speech, and those committed individuals who wished to deliver even controversial messages would have many opportunities to do so.

(For a much more detailed discussion of natural rights including freedom of speech as well as a detailed presentation of Emershaw’s Individualist State, read my new book The Real Culture War: Individualism vs. Collectivism & How Bill O’Reilly Got It All Wrong. Available now on Amazon in both print and Kindle.)