                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                            File Name: 04a0131n.06
                           Filed: November 29, 2004

                                           No. 03-2488

                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT


UNITED STATES OF AMERICA,                        )
                                                 )
       Plaintiff-Appellee,                       )
                                                 )
v.                                               )     ON APPEAL FROM THE UNITED
                                                 )     STATES DISTRICT COURT FOR THE
CHARLES WINSLOW,                                 )     WESTERN DISTRICT OF MICHIGAN
                                                 )
       Defendant-Appellant.                      )
                                                 )



       Before: KEITH, CLAY, and COOK, Circuit Judges.


       COOK, Circuit Judge. Defendant Charles Winslow appeals his conviction of using and

occupying National Forest land as part of a group of seventy-five or more persons without a special-

use permit in violation of 16 U.S.C. § 551 and 36 C.F.R. §§ 251.50(a), 261.10(k), and 261.1b.

Winslow argues that the permit requirement, as applied to him, violates the First Amendment, and

that he should not have been convicted because the group did not authorize him to sign a permit

application. For the reasons that follow, we affirm.


                                 I. Facts and Procedural History


       Winslow is a member of the “Rainbow Family of Living Light” (“Rainbow Family”), an

informal group that meets over several days each year, often in a National Forest, to do such things
No. 03-2488
United States v. Winslow

as pray for peace, discuss environmental issues, and socialize. Rainbow Family meetings draw as

many as 20,000 people. Winslow was among a group of Rainbow Family members who participated

in meetings with a Forest Service officer to discuss site selection and logistics for the Rainbow

Family’s 2002 gathering in Ottawa National Forest. Winslow refused to sign a permit application

for the event, because, he claimed, he had no authorization from the group, and signing on behalf

of the rest of the group would be contrary to the group’s individualist principles.


       Because Winslow refused to sign a permit application, the meeting occurred without Forest

Service permission. Winslow was then charged with one count of violating the rules and regulations

of the National Forest, in violation of 36 C.F.R. § 261.10(k). After a bench trial, a magistrate judge

found Winslow guilty. On appeal, the district court upheld the conviction.


   II. The Forest Service’s Permit Requirement Is a Valid Time, Place, and Manner Restriction


       Under Forest Service rules, groups of seventy-five or more people gathering in a National

Forest for a non-commercial purpose must acquire a special use permit in advance. Winslow argues

that this requirement violates his First Amendment rights to free speech, to peacefully assemble, and

to practice his religion. We find these arguments meritless.


       First Amendment jurisprudence allows the government to impose reasonable “time, place,

or manner” restrictions on expressive conduct in a public forum. Clark v. Cmty. for Creative Non-

Violence, 468 U.S. 288, 293 (1984). Such restrictions are valid, “provided that they are justified

without reference to the content of the regulated speech, that they are narrowly tailored to serve a

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United States v. Winslow

significant governmental interest, and that they leave open ample alternative channels for

communication of the information.” Id. (citations omitted). Though Winslow disagrees, we view

the Forest Service’s permit requirement as a valid time, place, and manner restriction for the

following reasons.


       First, the rule is content-neutral. It applies to any gathering of seventy-five or more people

in a National Forest, whether the gathering intends any speech, and irrespective of topic. See Black

v. Arthur, 201 F.3d 1120, 1123 (9th Cir. 2000).


       Second, the rule is narrowly tailored to serve the significant government interest in

“protecting public health and safety, preserving National Forest lands, and allocating space among

different groups and uses.” United States v. Nenninger, 351 F.3d 340, 346 (8th Cir. 2003). Winslow

argues that the Forest Service “had an opportunity to serve any interest it might have claimed,”

because he was generally willing to cooperate; just not willing to sign the permit. But even if that

were true, “restrictions on the time, place, or manner of protected speech are not invalid simply

because there is some imaginable alternative that might be less burdensome on speech.” Ward v.

Rock Against Racism, 491 U.S. 781, 797 (1989) (citation and internal quotation marks omitted).

Further, the permit requirement serves the government’s interests in a way that informal cooperation

would not:


       [R]equiring an individual to sign a special use authorization as a representative of the
       group is necessary to ensure that the group will be responsible for the actions of its
       members as a whole, to give the authorization legal effect and to subject the group
       to the authorization’s terms and conditions.

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United States v. Winslow

United States v. Kalb, 234 F.3d 827, 833 (3d Cir. 2000) (quoting United States v. Masel, 54 F. Supp.

2d 903, 919 (W.D. Wis. 1999)).


       Finally, the rule leaves ample alternative channels for communication.


       The regulation does not preclude the use of state or private property for Rainbow
       Family gatherings. It also does not impinge upon the right of the Rainbow Family
       to meet on federal land which does not fall within Forest Service jurisdiction or to
       gather in groups made up of fewer than 75 individuals.


Id.


       We thus sanction the Forest Service rule as a valid time, place, and manner restriction

presenting no affront to the First Amendment.


      III. Winslow’s Putative Lack of Authority to Sign a Permit Application Is Irrelevant


       Winslow also contends that he should not have been convicted because he did not have the

group’s authority to sign a permit. The undisputed elements of Winslow’s offense are: (1) The

defendant was engaged in a non-commercial activity on National Forest Service land; (2) more than

seventy-five people were engaged in the non-commercial activity either as participants or spectators;

and (3) the group failed to obtain a special use permit in advance of the event. Winslow concedes

that he was engaged in a non-commercial activity on National Forest Land; that he was part of a

group of seventy-five or more people; and that neither he nor anyone else obtained a special use

permit for the event. We need not decide here whether a defendant must also be a group leader or



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United States v. Winslow

contact person to be convicted under the rule because, given that ample evidence supports the

district court’s finding that this defendant acted as a contact person, Winslow himself would satisfy

the additional element he seeks to require.


                                          IV. Conclusion


       Winslow having presented no grounds to reverse his conviction, we affirm.




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       Clay, Circuit Judge, concurring. I concur in the majority opinion, but write separately to

discuss Winslow’s status as a contact person or representative for the Rainbow Family. U.S. Forest

Service regulations require an individual or entity who proposes to occupy National Forest land to

file a written proposal with the Forest Service or to present an oral proposal to the District Ranger

or the Forest Supervisor having jurisdiction over the affected land. 36 C.F.R. § 251.54(b). As

described by the Third Circuit:


       The application for a permit is a simple one-page document which essentially
       requires the applicant to supply information concerning the location and description
       of the National Forest System land upon which the activity will take place, the
       facilities that the applicant seeks to use, the estimated number of participants and
       spectators, the starting and ending times and dates for the proposed activity, and the
       name of an adult who will sign a special use authorization on behalf of the applicant.


United States v. Kalb, 234 F.3d 827, 830 (3d Cir. 2000) (citing 36 C.F.R. § 251.54). The regulations

require the proponent (if not an individual) to designate a contact person and a representative for the

group. See id. § 251.54(d)(1) (proposal for special use must provide “the name and address of the

proponent’s agent who is authorized to receive notice of actions pertaining to the proposal”); id. §

251.54(d)(2)(E) (proposal for special use must provide “[t]he name of the person or persons 21 years

of age or older who will sign a special use authorization on behalf of the proponent”). If the Forest

Service approves the application, the designated representative must sign the special use permit on

behalf of the group. Id. § 251.54(g)(3)(H).

       At trial, Winslow admitted to the three elements of a violation of 36 C.F.R. § 261.10(k) as

specified in the majority opinion, but raised a defense that, because he is not an official of the

Rainbow Family, he could not act as a contact person or representative for purposes of securing a

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permit for their gathering in Ottawa National Forest on June 22, 2002. He argued that listing himself

as a contact person or a representative on the special use permit application would have amounted

to a false statement and exposed him to a substantial fine and/or imprisonment pursuant to 18 U.S.C.

§ 101. The evidence in the record, however, belies Winslow’s arguments.

       Since 1972, Winslow’s role with the Rainbow Family has involved scouting sites and

conferring with the Forest Service. Further, Winslow participated in several meetings with Forest

Service personnel for the purpose of discussing site selection and logistics of the June 22, 2002

gathering. According to the testimony of Thomas Ford, Assistant Forest Supervisor at the Ottawa

National Forest, Winslow dominated much of the discussion at a May 17, 2002 meeting between

the Rainbow Family and the Forest Service. When the Forest Service proposed several sites for the

Rainbow Family gathering, Winslow rejected all of them. According to Ford, Winslow appeared

to act as a leader for the Rainbow Family. These facts support the finding that Winslow was a

representative of the Rainbow Family.

       Winslow’s own testimony reveals that he considered himself to be a contact person for the

group. He acknowledged at trial that if the Forest Service had come up with additional proposed

sites after the May 17, 2002 meeting, it could have contacted him and provided him with that

information. Winslow then would have provided that information to the Rainbow Family at its

“Spring Council” meeting.

       Because Winslow acted as both a representative and a contact person for the Rainbow

Family, he would not have faced criminal prosecution for making a false statement if he had

submitted a permit application that designated himself as a contact person or a representative for the

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group. As noted by the Magistrate Judge, Winslow fails to provide a plausible explanation of the

difference between acting as a contact person for the Rainbow Family in meeting with the Forest

Service and acting as a contact person for the Rainbow Family for a permit application.




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