         United States Court of Appeals
                    For the First Circuit


No. 01-2460

          KNIGHTS OF COLUMBUS, COUNCIL #94, ET AL.,

                   Plaintiffs, Appellants,

                              v.

                  TOWN OF LEXINGTON ET AL.,

                    Defendants, Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

              FOR THE DISTRICT OF MASSACHUSETTS

          [Hon. Nancy Gertner, U.S. District Judge]


                            Before

               Selya and Lipez, Circuit Judges,

                 and Singal,* District Judge.


     Chester Darling, with whom Robert Roughsedge and Michael
Williams were on brief, for appellants.
     Jordana Glasgow, with whom Daryl Lapp and Palmer & Dodge,
LLP were on brief, for appellees.




                      November 29, 2001
_______________
*Of the District of Maine, sitting by designation.
            SELYA, Circuit Judge.                This appeal requires us to

decide whether the Town of Lexington, Massachusetts (the Town)

violated the First Amendment by adopting a regulation that bans

unattended structures from the historic Battle Green.                              The

plaintiffs allege that this regulation infringes their First

Amendment rights and that the Town adopted it for an improper

purpose, viz., to exclude the annual religious display of a

crèche from the Battle Green.                They also allege that, in all

events,    the    Town's    selective       application     of   the    regulation

following its adoption renders it constitutionally infirm.

            The district court found these charges unpersuasive and

granted summary judgment in the Town's favor.                    We affirm:        the

record    shows   beyond     hope     of    contradiction    that      the   ban    on

unattended structures is a content-neutral restriction on the

time, place, and manner of speech, narrowly tailored to achieve

a significant governmental interest and framed so as to allow

access to ample alternative avenues of communication.                        By the

same token, there is no violation of the Free Exercise Clause

because    the     regulation         is     a   neutral     law       of    general

applicability.       Lastly, the plaintiffs' claims of selective

enforcement       fail     due   to        evidentiary     insufficiency;          the

regulation was only intended to apply to private parties, and




                                           -3-
there is nothing in the record that shows preferential treatment

in respect to any unattended structure erected by such a party.

I.   BACKGROUND

            The situs of this controversy is the historic Battle

Green (the Green) — the very place where the first battle of the

Revolutionary War occurred.         Seven of the eight minutemen killed

during the battle are buried there, and the Minuteman Statue —

located at the apex of the Green — memorializes the American

colonists who fought in the Revolutionary War.              The Green is a

registered historic landmark, owned and maintained by the Town.

            The Town's governing legislative body is the Board of

Selectmen (the Board).        The Board is entrusted with suzerainty

over, and protection of, the Green.              In the exercise of that

function,      the   Board   from   time    to   time   promulgates   rules

governing the use of the Green.         Historically, these rules have

allowed for a wide range of public uses, including recreational

activities and activities involving the expression of political,

religious, and other views.         The rules divide activities on the

Green   into    three   categories:        (1)   allowed   activities,   (2)

forbidden activities, and (3) activities for which a permit is

required.      To illustrate, picnicking in small groups is allowed

as a matter of right; commercial solicitation is prohibited




                                     -4-
altogether;   and    rallies   are    allowed    if   a   permit   is   first

obtained (but otherwise are forbidden).

         For most of the twentieth century, the crèche — a

figurine representation of Christ's nativity in the stable at

Bethlehem — appeared on the Green for roughly six weeks each

year (in late November and December).             For some thirty years,

the Town had erected the crèche, disassembled it, and stored the

components.     In    or   around     1973,     however,    two    fraternal

organizations — the Knights of Columbus and the Masons — assumed

responsibility for these tasks.

         There is evidence that the display of the crèche long

has been a source of friction within the Town, and that some

residents complained bitterly about its presence on the Green.

For the most part, however, the regulations, insofar as they

pertained to the crèche at all, seem to have been honored more

in the breach than in the observance.           Despite the fact that the

regulations have required a permit for a religious display of

this type since at least 1982, no permit ever was sought or

demanded prior to the erection of the crèche in any year before

1999.

         Beginning in the fall of 1998, the issue was repeatedly

discussed at the Board's meetings.         A group consisting of clergy

and citizens with various viewpoints was formed to study the


                                     -5-
problem and suggest solutions.          This committee reported to the

Board on September 27, 1999.            It unanimously concluded that

"private     citizens    do   have    the       right    to     have   religious

observances on the common land within guidelines established by

the town," but suggested that a shortened display period might

be a reasonable compromise.          For the 1999 season, the owners of

the crèche, including the Knights of Columbus, agreed to a

display period of three weeks.

             Subsequent to the Board's decision to allow the three-

week display, it began receiving requests to allow a wide range

of   other   religious   structures        on   the     Green   for    comparable

periods.      One group desired to place a sign near the crèche

indicating some citizens' objections to its presence on public

land.      Other applicants requested permission for a display

honoring witchcraft at Halloween and for the erection of a

pyramid to honor the Egyptian Sun God Ra during the month of

April.     Yet another resident inquired about the possibility of

erecting a Sukkah, an open hut-like structure, to commemorate

the Jewish harvest festival of Sukkoth.

             The minutes of the Board's meetings reveal a keen

awareness that if it continued to allow a display of the crèche,

many of these competing applications would have to be granted.

The Board thus believed that it was on the horns of a dilemma:


                                     -6-
it could not constitutionally pick and choose among competing

applications, but granting them all likely would compromise the

aesthetic and historic elements of the Green.      After seeking

legal advice, the Board modified the rules governing use of the

Green in several ways.   First, it limited permit eligibility for

public expressions on the Green to active events of less than

eight hours in duration.    Second, it restricted displays of a

ceremonial nature to those "in connection with special events

and limited in duration to the period required for such events."

Third, it added an explicit prohibition against "placement on

the Green of any unattended structure."   For ease in reference,

we annex a copy of the regulation, as amended, as an appendix to

this opinion.

          On October 19, 2000, the Knights of Columbus and the

organization's grand knight, Michael O'Sullivan (collectively,

the Knights), applied for a permit to erect the crèche on the

Green.   The application was constructively denied, although the

Board intimated that a one-day event that included the crèche

would be approved.1

          Dismayed by the new regulation and the concomitant

ouster of the crèche, the Knights sued.    Although they claimed


    1In point of fact, a Town resident was granted a permit to
hold a "live" nativity scene and service on the Green on
December 23, 2000.

                               -7-
abridgement of their free speech and free exercise rights, the

district    court      refused     to    grant           a   preliminary     injunction.

Knights of Columbus v. Town of Lexington, 124 F. Supp. 2d 119

(D. Mass. 2000).             We summarily affirmed that denial in an

unpublished order.

            In subsequent proceedings, the Knights attempted to

show arbitrariness in the enforcement of the new regulation.

They introduced evidence tending to prove that bleachers and a

platform truck were left unattended on the Green for several

days   prior     to    a    Patriots'         Day    celebration,           and    that       an

unattended       podium     was    allowed          to       remain    overnight       around

Memorial Day.

            In due course, the district court granted summary

judgment     for      the    defendants        (the          Town     and   various         Town

hierarchs).        We expedited the Knights' ensuing appeal in an

effort to resolve the matter in advance of the Christmas season.

II.    STANDARD OF REVIEW

            We     review     a   grant       of     summary          judgment    de    novo,

examining    the      record      in    the    light          most     favorable       to    the

nonmovant    and      indulging        all    reasonable            inferences     in       that

party's favor.         Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53

(1st Cir. 2000).           We will uphold the grant of summary judgment

only when there is no genuine issue of material fact and the


                                             -8-
moving party is entitled to judgment as a matter of law.                          Fed.

R.   Civ.   P.    56(c).         Here,    the     relevant    facts      are   largely

undisputed, so our analysis focuses on the legal question of

whether either the new regulation or its application offend the

First Amendment.

III.   THE FREE SPEECH CLAIM

            The    Free         Speech    Clause      of     the    United      States

Constitution lies at the heart of the Knights' appeal.                              We

organize our discussion of this claim in segments.

                           A.       The Legal Framework.

            The    Free     Speech       Clause    provides,       in    terms,   that

"Congress shall make no law . . . abridging the freedom of

speech . . . ."      U.S. Const. Amend. I.                 Under the aegis of the

Fourteenth Amendment, this prohibition applies equally to states

and their political subdivisions.                  See Cantwell v. Conn., 310

U.S. 296, 303 (1940).               Despite the uncompromising language in

which this proscription is couched, it is not absolute.

            The Supreme Court has articulated a framework for

determining       whether       a    particular      regulation         impermissibly

infringes upon free speech rights.                 That framework dictates the

level of judicial scrutiny that is due — and that choice, in

turn, informs the nature of the restrictions on free speech that




                                          -9-
may be permissible in a public forum.             McGuire v. Reilly, 260

F.3d 36, 42 (1st Cir. 2001).

            The triage works this way.          The bedrock rule is that

government may not prohibit all communicative activity in a

public forum.      Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460

U.S. 37, 46 (1983).      Content-based prohibitions may endure — but

only   if   they   are   justified    by    compelling   state   interests.

Capitol Sq. Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 761

(1995). Accordingly, such prohibitions engender strict judicial

scrutiny.    See id.     Content-neutral restrictions pose less of a

threat to freedom of expression.            Consequently, content-neutral

restrictions on the time, place, and manner of speech trigger an

intermediate type of scrutiny such that they will be upheld as

long as they are "narrowly tailored to serve a significant

governmental interest, and allow for reasonable alternative

channels of communication."          Globe Newspaper Co. v. Beacon Hill

Arch'l Comm'n, 100 F.3d 175, 186 (1st Cir. 1996).

            Here, the Town's limitation of free speech on the Green

is not absolute:      the new regulation merely prohibits one manner

of expression (unattended structures) in a particular place (the

Green) at certain times (when unconnected with an event).             Since

the Town does not deny that the Knights have a free speech

interest in exhibiting the crèche or that the Green is a public


                                     -10-
forum,   the    salient    question    is    whether   the   restriction    is

content-based or content-neutral.             It is to that question that

we now turn.

                 B.    Content-Based or Content-Neutral?

            To ascertain whether a regulation is content-based, an

inquiring      court   must   determine      whether   it   regulates   speech

because of disagreement with the particular message that the

speech conveys.        Id. at 183.    The Knights concede, as they must,

that the language of the regulation is facially neutral.                   The

ban on unattended structures is comprehensive; it does not

discriminate among types of unattended structures, and certainly

does not single out the crèche.               Thus, the Knights' argument

boils down to a plaint that the legislative history demonstrates

that the regulation's primary purpose is to prevent display of

the crèche.2

            In making this argument, the Knights rely heavily on

a "free exercise" case, Church of Lukumi Babalu Aye, Inc. v.

City of Hialeah, 508 U.S. 520 (1993).             There, the Supreme Court

ruled that a municipal ordinance prohibiting cruelty to animals


    2 The Town, citing United States v. O'Brien, 391 U.S. 367,
383-84 (1968), argues that we should not inquire into
legislative purpose when a statute is content-neutral on its
face.   Here, however, both the text of the statute and the
legislative history point toward neutrality, so we need not and
do not decide whether such an inquiry is constitutionally
required.

                                      -11-
was unconstitutional because it was targeted at preventing the

sacrificial    rites   practiced    by    adherents    of   the   Santeria

religion.     Id. at 547.    But Hialeah is readily distinguishable

because the ordinance at issue there was riddled with exceptions

that effectively made it applicable only to Santeria worshipers.

See id. at 535.    Thus, the ordinance — unlike the regulation at

issue here — was not content-neutral in its operation.             See id.

For present purposes, the most that Hialeah teaches is that a

court may have to look beyond the bare language of a regulation

to determine whether its justification is content-neutral.            See,

e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)

("[G]overnment regulation of expressive activity is content

neutral so long as it is justified without reference to the

content of the regulated speech."); D.H.L. Assocs. v. O'Gorman,

199 F.3d 50, 57 (1st Cir. 1999) (same).

            In the instant case, there is nothing in the record

that evinces a content-based animus against the crèche.             On the

contrary, the Board proposed the new regulation only after

requests for permits for alternative religious displays began to

sprout.   Mindful of the strictures of the Establishment Clause,

the Board reasonably assumed that it must treat all applications

for   religious   displays    alike,      regardless   of   the   message

conveyed.     Fearing a flood of applications and a corresponding


                                   -12-
cluttering          of    the   Green,    the      Board      devised       a    regulation

prohibiting all unattended structures.                      This is a far cry from

an invidious singling-out of the crèche.3

                 The only inference that the record permits is that the

new regulation was conceived out of a desire to treat all

religious expression even-handedly.                      If the Knights feel that

the burden of the regulation falls most heavily on them, it is

perhaps because they are now held to the same standard as all

other similarly situated applicants.                     While the adjustment may

not be an easy one, the outcome is inescapably content-neutral.

   C.           Significant Governmental Interest/Narrow Tailoring.

                 Having    determined     that     the     regulation           is   content-

neutral, we now apply intermediate scrutiny to ascertain whether

it is narrowly tailored to achieve a significant governmental

interest.          McGuire, 260 F.3d at 43.

                 The Town asserts that its interest in preserving the

historical and aesthetic qualities of the Green amply justifies

the restriction.           This is a theoretically sound position.                      After

all,       in    Globe    Newspaper,     we   upheld,      against      a       free   speech

challenge,          a    ban    on   news     racks      in     a   historic           Boston


       3
      The Town's longstanding practice of permitting the crèche
to be displayed on the Green without a permit helps, rather than
hinders, the Town's argument. That practice shows a receptivity
to the display and, contrary to the Knights' importunings,
creates no entitlement to preferential treatment in the future.

                                            -13-
neighborhood.       100 F.3d at 195.          We recognized there that

aesthetic preservation may warrant a content-neutral restriction

on speech in a public forum.      Id. at 187.             As was true in Globe

Newspaper,    the   Town's    interest       in    aesthetic     preservation

qualifies as a significant one.              Moreover, that interest is

enhanced here by the site's designation as a national historic

landmark.

            In an attempt to blunt the force of this conclusion,

the Knights argue that the regulation is not narrowly tailored

to the achievement of this aesthetic rationale.                They make three

points:     first, that it is not only unattended structures that

produce clutter; second, that the Town should have pursued

alternatives less restrictive than a total ban; and third, that

the crèche is aesthetically pleasing.               The first two parts of

this argument are plainly misguided.                  The narrow tailoring

requirement     "does   not   mandate    a        least    restrictive   means

analysis."     Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d

731, 744 (1st Cir. 1995).      Thus, the Town was "[not] required to

implement or experiment with other alternatives before finally

choosing the total ban."      Globe Newspaper, 100 F.3d at 189 n.15.

The "narrow tailoring" requirement is satisfied as long as the

particular     "regulation    promotes       a     substantial     government




                                  -14-
interest that would be achieved less effectively absent the

regulation."        Nat'l Amusements, 43 F.3d at 744.

             Here, moreover, the regulation appears entirely logical

when one recalls that it was adopted amid a concatenation of

Establishment Clause concerns.            See Good News Club v. Milford

Cent. Sch., 121 S. Ct. 2093, 2103 (2001) (stating that avoiding

an Establishment Clause violation may be a compelling state

interest justifying even content-based restrictions on speech).

The Town legitimately could conclude that unattended displays

were more likely to present Establishment Clause issues than

attended ones because, for instance, a reasonable observer might

be confused as to the source of the message.4               Cf. Capitol Sq.,

515   U.S.    at    778-79   (O'Connor,      J.,   concurring).      This    is

significant        because   the   context   of    a   religious   display   is

crucial in determining its constitutionality.              Compare County of

Allegheny v. ACLU, 492 U.S. 573, 621 (1989) (forbidding display

of a crèche in a county courthouse), with Lynch v. Donnelly, 465




      4
      Although the plurality opinion in Capitol Square proposed
a per se rule to the effect that the government may not violate
the Establishment Clause by providing a forum for private
religious expression, see Capitol Sq., 515 U.S. at 770, a
majority of the Justices rejected this limited abandonment of
the endorsement analysis. See id. at 787 (Souter, J., with whom
O'Connor and Breyer, JJ., joined, concurring); id. at 799
(Stevens, J., dissenting); id. at 817-18 (Ginsburg, J.,
dissenting).

                                      -15-
U.S. 668, 685 (1984) (permitting inclusion of a crèche in a

municipality's outdoor holiday display).

         We note, too, that the Supreme Court has explicitly

indicated that a total ban on unattended structures in a public

forum would pass constitutional muster.            In Capitol Square, a

majority of the Justices (the plurality, plus Justices Souter

and Stevens) specifically agreed that "[the state] could ban all

unattended private displays" in a public forum.                 Id. at 783

(Souter, J., concurring); accord id. at 761 (plurality opinion);

id. at 803 (Stevens, J., dissenting).            Various decisions of the

courts of appeals are to like effect.        E.g., Am. Jewish Cong. v.

City of Beverly Hills, 90 F.3d 379, 384 (9th Cir. 1996) ("The

city constitutionally could ban all unattended private displays

in its parks."); Congregation Lubavitch v. City of Cincinnati,

923 F.2d 458, 460 (6th Cir. 1991) (similar); Lubavitch Chabad

House, Inc. v. City of Chicago, 917 F.2d 341, 347 (7th Cir.

1990) (similar).      Finding no reason why the case before us

demands a different outcome, we hold that the total ban on

unattended    structures   is   both   content-neutral      and   narrowly

tailored to achieve a substantial governmental interest.            It is,

therefore, constitutionally permissible.

         As     to   the   Knights'      claim     that   the   crèche   is

aesthetically pleasing, the Establishment Clause makes clear


                                  -16-
that       the    Town    was   bound   to    consider      a    range   of   potential

religious displays when it envisioned the future of the Green.

Thus,       the    aesthetics     of    the    crèche,      in    the    abstract,   are

irrelevant.            The Town rationally could have decided that some of

the    requested         displays,      or    the   sheer       number   of   potential

displays, would be inconsistent with the aesthetic quality of

the Green.         Even if the crèche were more beautiful than all the

others — a matter on which we take no view — the Town was not at

liberty to allow the crèche while at the same time prohibiting

other religious displays.

                  D.     Alternative Avenues of Communication.

                 As a final matter, the regulation does not unduly

restrict the Knights' free speech rights because they have

adequate alternative avenues of communication available to them.

See McGuire, 260 F.3d at 43; Globe Newspaper, 100 F.3d at 186.

The Knights remain free to display the crèche, either during the

course of an event on the Green or at any time on nearby private

property.5         To be sure, the Knights argue that these are not

adequate alternatives — an event would be too transitory and

placing the crèche on private property would not convey the same

message.          But the message that they suggest is suppressed is


       5
     The record shows that one of the two churches facing the
Green is willing to have the crèche displayed on its front lawn
for the customary six-week interval.

                                             -17-
that the crèche belongs "at the center of public life in the

Town   of    Lexington."      This   resupinate    reasoning       turns   the

constitutional standard upside-down.          Although the Constitution

protects private expressions of beliefs, it does not authorize

— and sometimes even forbids — citizens' attempts to invoke

public      backing   of   their   beliefs.       The    Knights    have   no

constitutional right to communicate a message of public support

for the crèche.

             It is also notable that the crèche is not completely

banned from the Green.        Like any other ceremonial display, it

may appear on the Green in conjunction with an active event for

up to eight hours.         The Knights have not explained why such a

display is impractical, instead stating that the Town has no

right to dictate to them how they must express their private

beliefs.      Yet the Town has issued no general ukase regarding

private religious observances; only religious displays on a

single strip of public land are affected.               In a forum of this

kind, it has long been established that government may impose

reasonable restrictions on the manner of speech.                See, e.g.,

Capitol Sq., 515 U.S. at 761.          In adopting the regulation, the

Town has done no more than exercise its right to manage its

property in the manner it deems desirable without crossing the

constitutional line.


                                     -18-
                  E.   Consistency in Application.

           The   Knights'   next    argument   is   that   the   amended

regulation has been applied so inconsistently that it gives

municipal officials unfettered discretion (and, thus, violates

the rule announced in Cox v. Louisiana, 379 U.S. 536 (1965)).

In Cox, the Court struck down a municipal ordinance prohibiting

street parades and meetings on the ground that the ordinance

effectively gave local officials unbridled discretion to permit

some demonstrations and disallow others.        Id. at 557.      The case

stands for the proposition that a neutral ordinance may violate

the First Amendment if it invites uneven application.

           To demonstrate that the regulation here at issue has

been enforced selectively, the Knights presented evidence of

other unattended structures that have been seen on the Green

since the new regulation was adopted, e.g., bleachers and a

platform truck were left on the Green prior to a Patriots' Day

celebration, and a podium appeared on the Green some days prior

to a Memorial Day event.

           The most obvious flaw in this construct is the lack of

any evidence that these structures were erected by private

parties.   This gap is critical because the regulation was never

intended to apply to actions by the Town itself.           In fact, the

text of the regulation, as adopted by the Board, prohibits


                                   -19-
"[p]lacement on the Battle Green of any unattended structure by

any private party" (emphasis supplied).                 Even though these last

four   words       later   were   omitted      from    the   printed   regulation

through      an    apparent     clerical      error,    it    is   reasonable    to

interpret the regulation as applying only to private parties.

In fact, the entire subsection in which the regulation resides

(quoted in the Appendix) is most plausibly read as applying only

to private conduct.             For example, we do not believe that the

provision prohibiting "removal[] or disturbance of any . . .

monument, statue, marker, animal or plant" reasonably could be

construed to prevent regular maintenance, repair, replacement,

or landscaping done by the Town.               Similarly, the prohibition on

the    use    of     firearms     is   most    sensibly      understood   as    not

encompassing police officers acting in their official capacity.

Because the Town is exempt from the ban on unattended structures

on the Green, the Knights' claim of selective enforcement fails

for evidentiary insufficiency.

IV.    THE FREE EXERCISE CLAIM

              The Free Exercise Clause also is made applicable to the

states       (and,     therefore,      to     municipalities)       through     the

Fourteenth Amendment.              See Cantwell, 310 U.S. at 303.                It

provides that "Congress shall make no law . . . prohibiting the

free exercise [of religion] . . . ."                  U.S. Const. Amend. I.      In


                                        -20-
interpreting this language, the Supreme Court has recognized

that the exercise of religion sometimes may involve "performance

(or abstention from) physical acts," and that the government may

violate the right to free exercise if it seeks "to ban such acts

or abstentions only when they are engaged in for religious

reasons."       Employment Div., Dep't of Human Res. v. Smith, 494

U.S. 872, 877 (1990).              Even so, "a law that is neutral and of

general applicability need not be justified by a compelling

governmental interest even if the law has the incidental effect

of burdening a particular religious practice."                      Hialeah, 508

U.S. at 531.

              The Knights' current reliance on this doctrine is

misplaced.       As     we   already    have    determined,    see    supra   Part

III(B), the ban on unattended structures is content-neutral in

every    way.      For       the    reasons    elaborated   in      our   previous

discussion, we are bound to conclude that the regulation does

not discriminate against a particular religion or religious

practice.       See Hennessy v. City of Melrose, 194 F.3d 237, 244

n.1 (1st Cir. 1999) (explaining that private beliefs do not

excuse    a     party    from       complying    with   a     law    of   general

applicability).         Hence, the Knights cannot rewardingly invoke

the Free Exercise Clause in their attack on the regulation.

V.   CONCLUSION


                                        -21-
              We do not live in a utopian world, and the myriad

guarantees that the Constitution provides sometimes can operate

in tension with one another.             So it is here:         the Establishment

Clause pulls in the direction of separating church and state,

while   the    Free       Exercise    Clause    pushes    in    the       direction    of

permitting the unfettered expression of religious doctrine.                            In

our view, the Town has reconciled these competing centrifugal

and centripetal forces in a constitutionally acceptable manner,

holding the delicate balance steady and true.                        Admittedly, its

solution — the banning of all unattended structures from the

village   green       —    inhibits    some    speech,    but       the    solution    is

content-neutral, narrowly tailored to suppress no more speech

than necessary, and leaves open ample alternative avenues of

communication.             No   more    is     exigible        to    withstand        the

intermediate level of scrutiny that the First Amendment imposes

here.

              We need go no further.           We hold that the Town's ban on

unattended structures on the Green is a permissible "time,

place, and manner" restriction that operates without reference

to the content of speech, and that the aesthetic preservation of

so   historic    a    landmark       furnishes    an   appropriate          basis     for

imposing this narrowly tailored restriction in a public forum.

Because the challenged regulation leaves open many other means


                                        -22-
of communication for religious speech and there is no competent

evidence of selective enforcement, we reject the Knights' free

speech claim.   On much the same analysis, we likewise reject the

Knights' free exercise claim.    Consequently, we hold that the

lower court did not err in granting summary judgment for the

defendants.



Affirmed.




                               -23-
                                                Appendix



     RULES AND SPECIFICATIONS REGULATING THE USE OF THE BATTLE GREEN

The following rules and regulations have been adopted in accordance with the General By-Law, Article
XXV, Section 225, "Protection of the Battle Green", as amended. If these regulations or portions thereof,
conflict with the By-Law, the By-Law shall take precedence.

                                             1. DEFINITIONS

a.   "Audio device" means any radio, television set, musical instrument, or other device that produces
     noise.
b.   "Disorderly conduct" means any action intended to cause inconvenience, annoyance, or alarm, or
     which recklessly creates a risk thereof; fighting, threatening or violent behavior; unreasonable noise;
     abusive language directed toward any person present; wrestling in vicinity of others; throwing of
     breakable objects; throwing of stones; or spitting.
c.   "Powerless flight" means any device used to carry persons or objects through the air; for example,
     sailplanes, gliders, balloons, body kites, hand gliders.
d.   "Public use limit" means the maximum number of people or the amount, size, or type of equipment
     permitted on the Battle Green at one time, as established by the Board of Selectmen.
c.   "Special event" means demonstrating, picketing, speechmaking, marching, holding of vigils, and all
     other similar forms of conduct which involve the active communication or expression of opinions or
     grievances, engaged in by one or more persons, the conduct of which has the effect, intent or
     propensity to draw a crowd or onlookers.
f.   "Wet turf" shall mean any natural condition that would make the Green vulnerable to excessive damage
     by heavy wear or use; for example, heavy rains, reseeding, drought conditions.
g.   "Non-permit activities" shall mean activities that may be engaged in without a permit issued by the
     Board of Selectmen.

                                     2. NON-PERMIT ACTIVITIES

Subject to the restrictions in these rules and regulations, permits shall not be required for:

a.   Conduct that does not cause public inconvenience, annoyance, or alarm.
b.   Picnicking restricted to benches only and to groups of no more than five people.
     Picnicking on the Green by bus tours or similar groups is forbidden.
c.   The gathering of groups on the Battle Green for the sole purpose of exploring and enjoying its history,
     and which do not remain for more than four hours.
d.   Playing of audio devices at a reasonable volume.


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e.   The playing of games that do not:
     i. exceed three players; or
     ii. damage the Green's physical condition; or
     iii. disturb or inconvenience those visiting the Green for historic interest; or
     iv. constitute any type of disorderly conduct.

                                  3. PERMIT REQUIRED ACTIVITIES

a.   The purpose for requiring permits for certain activities is to promote the use of the Battle Green in a
     manner consistent with its nature and history; to protect the Battle Green from harm; to ensure
     adequate notice of the event so that arrangements can be made to protect the public health and safety
     and to minimize interference with the event by the public.

b.   Permits are required for any of the following activities, singly or in combination:
         i. Any group activity reasonably likely to exceed the public use limit established by the Board
         of Selectmen.
         ii. Special events, public meetings, assemblies, gatherings, demonstrations, parades, and other
         active public expressions of interest, not to exceed eight hours in duration.
         iii. Pageants, reenactments, regattas, entertainments, or other as public spectator attractions.
         iv. Displays of a ceremonial nature in connection with special events and limited in duration to
         the period required for such events.
         v. Use of public address system, electrical lighting, or other electrical devices.
         vi. Distribution of printed matter other than commercial advertising.
         vii. Possession of firearms if unloaded or packed in such a way as to prevent their use.
         viii. Possession of explosives, as long as individuals or groups conform to Federal, State, and
         local laws governing such possession.
         ix. Use or possession of fireworks or firecrackers.

                                    4. IMPERMISSIBLE ACTIVITIES

The following activities are strictly prohibited:

a.   Any group activity that exceeds the public use limit established by the Board of Selectmen for the
     Battle Green.
b.   Possession, destruction, injury, defacement, removal, or disturbance of any building, sign, equipment,
     monument, statue, marker, animal or plant.
c.   Distribution or display of commercial advertising; or soliciting of business; or any other commercial
     transactions.
d.   Remaining on the Battle Green for more than four hours.
e.   Abandonment of any vehicle or personal property.
f.   Unreasonably loud operation of audio devices.

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g.   Delivery of any person or thing by parachute or helicopter.
h.   Powerless flight activities.
i.   Begging.
j.   Disorderly conduct.
k.   Use of firearms.
l.   Use of metal detecting device for personal use.
m.   Gambling of any form or operation of gambling devices.
n.   Picnicking except as provided in 2b.
o.   Use of roller skates and skateboards.
p.   Placement of the Battle Green of any unattended structure.

                                          5. PERMIT PROCESS

a.   Application for permits to conduct activities on the Battle Green, specified in 3, above, shall be filed
     no later than two weeks prior to the requested date. Late and/or incomplete applications will be
     considered at the discretion of the Board of Selectmen.
b.   Permit applications shall include the following information:
     i. Name and phone number of a responsible contact.
     ii. Date and time of event.
     iii. Nature of event.
     iv. Expected number of participants, spectators, and vehicles.
     v. Duration of event.
     vi. Statement of equipment and facilities to be used.
     vii. Section of the Green desired.
c.   The responsible party is to keep the permit, which must be available for inspection upon request. The
     responsible party may be required by the Board of Selectmen, as a condition of issuing the permit, to
     pay for detail police officers if the Board determines that such officers are necessary for public safety.
d.   Permits are issued upon express condition the Green is to be left in an orderly fashion.
e.   Permits are non-transferable; and are only valid for date and time specified.
f.   A permit shall be revoked if a sanctioned event engages in impermissible activities and may be
     revoked if the permit group engaged in activities that are not within the specification of the permit.
g.   The Board of Selectmen may alter a request by setting reasonable conditions and restrictions as to
     duration and area occupied, as are necessary for protection of the area and public use thereof.
h.   Wet turf conditions may supersede the use of a granted permit at the discretion of the Board of
     Selectmen to protect the condition of the Battle Green.

                        6. GROUNDS FOR DENIAL OF PERMIT REQUEST

a.   Prior applications for permit for conflicting schedule has been made or will be granted.
b.   Event presents a clear and present danger to public health or safety.



                                                   -26-
c.   Event is of such nature or duration that it cannot reasonably be accommodated in the area applied for;
     or the expected number of participants exceeds the public use limit.
d.   Event will, in the opinion of the Board of Selectmen, cause unacceptable interference with use of the
     Green by the general public.
e.   Event is requested for a date that conflicts with official celebrations of the Town.
f.   Event is more appropriately held at other available Town facilities, such as recreational facilities.

Approved by the Board of Selectmen July 15, 1986
Amended July 24, 2000




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