One of the nation’s leading free-speech advocates, the Pacific Legal Foundation, is asking the National Park Service to open up the National Mall to speech of all kinds without arbitrary restrictions.
“The First Amendment guarantees the right to freedom of speech to all regardless of the content of the speech in question, barring extremely limited carve-outs for unprotected speech,” the organization wrote in a letter to the NPS.
“In Reed v. Town of Gilbert, the Supreme Court explained that laws that treat speech differently based on ‘its function or purpose’ are ‘presumptively unconstitutional and may be justified only if the government proves that they are narrowly tailored to serve compelling state interests.'”
PLF wrote to the NPS because the federal agency is considering changes to its rules, which currently treat some speech more favorably at the historic location in Washington.
Small political demonstrations are allowed there without a permit, but all other speech activities require a permit.
The foundation explained the park service “is considering downgrading its treatment of at least some demonstrations because they also contain elements such as historical reenactments or entertainment.”
But instead, the park service should elevate its treatment of all speech there, the foundation said,” PLF said.
“Events such as a parade can be both celebrations and politically charged. Allowing the government to make such arbitrary distinctions will inevitably lead to ‘haphazard interpretations’ and ‘erratic application’ based on the identity of the speaker or the biases of the government official,” the foundation said.
The letter to Brian Joyner, chief of staff of the park service’s National Mall and Memorial Parks department, was submitted under provisions that seek comment on proposed rules changes in government.
“PLF is interested in this proposed rule because of its potential to unduly limit freedom of expression,” the organization said.
It explained to the government: “‘Demonstrations’ have traditionally not required a permit if smaller than a certain size, while ‘special events’ of all sizes have always required permits. The proposed rule seeks to ‘streamline’ the regulations by combining these terms under a single umbrella of ‘events.’ However, the proposed rule seeks to ‘retain the use’ of the two distinctive terms ‘where the distinction is necessary to ensure that NPS does not overly restrict speech that enjoyed heightened protections under the First Amendment.'”
The foundation said the line between demonstrations and events, such as a parade, often is blurry.
“That blurriness is reason enough to treat all expressive gatherings as equally protected under the First Amendment,” the foundation said.
“The National Parks Service may of course continue to apply neutral time, place, or manner restrictions to all speech events based on the size or impact of the event. And it can continue to treat events that do not have a speech component (such as perhaps a marathon or 5K) less favorable if it chooses to do so.
“But the selective treatment of different events protected by the First Amendment is unconstitutional and should be eliminated,” the letter said.