           RECOMMENDED FOR FULL-TEXT PUBLICATION
                Pursuant to Sixth Circuit Rule 206                        2       Parks v. Finan, et al.                          No. 03-3848
        ELECTRONIC CITATION: 2004 FED App. 0331P (6th Cir.)
                    File Name: 04a0331p.06                                                       _________________
                                                                                                      COUNSEL
UNITED STATES COURT OF APPEALS
                                                                          ARGUED: Elise W. Porter, OFFICE OF THE ATTORNEY
                  FOR THE SIXTH CIRCUIT                                   GENERAL OF OHIO, Columbus, Ohio, for Appellants.
                    _________________                                     Nathan W. Kellum, Memphis, Tennessee, for Appellee.
                                                                          ON BRIEF: Elise W. Porter, Tomi L. Dorris, OFFICE OF
 DOUGLA S R. PARKS,                X                                      THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,
             Plaintiff-Appellee, -                                        for Appellants. Nathan W. Kellum, Memphis, Tennessee, for
                                    -                                     Appellee.
                                    -  No. 03-3848
            v.                      -                                       ROGERS, J., delivered the opinion of the court, in which
                                     >                                    SCHWARZER, D. J., joined. COOK, J. (pp. 23-25),
                                    ,                                     delivered a separate dissenting opinion.
 RICHARD H. FINAN; RONALD           -
 T. KELLER; KENNETH L.              -                                                            _________________
 MORCKEL; LEE A. DARDEN ,           -
        Defendants-Appellants. -                                                                     OPINION
                                    -                                                            _________________
                                   N
       Appeal from the United States District Court                          ROGERS, Circuit Judge. On two separate occasions in
      for the Southern District of Ohio at Columbus.                      April 2002, Douglas Parks entered the grounds of the Ohio
     No. 03-00094—Gregory L. Frost, District Judge.                       state capitol and attempted to preach a Christian
                                                                          message—the first time by preaching, the second time by
                    Argued: March 16, 2004                                wearing a sandwich board and distributing leaflets. Both
                                                                          times Ohio State Highway Patrol (“OSHP”) troopers
            Decided and Filed: September 29, 2004                         informed Parks that he was required to obtain a permit prior
                                                                          to conducting these activities on the Capitol Square and asked
         Before: ROGERS and COOK, Circuit Judges;                         Parks to leave. After the second of these encounters, Parks
                SCHWARZER, District Judge.*                               instituted this action in the district court, seeking an
                                                                          injunction preventing the Capitol Square Review and
                                                                          Advisory Board (“CSRAB”) and OSHP from enforcing the
                                                                          permit requirement against him.1 The district court, finding

                                                                              1
                                                                                The defendants are the CSRAB chairman, its executive director, and
    *
                                                                          various mem bers o f the Ohio State Highway Patrol. For convenience
      The Ho norable W illiam W Schwarzer, United States District Judge   when speaking of the defendant officials as litigants on this appeal, we
for the Northern District of California, sitting by designation.          refer to them as CSRAB.

                                  1
No. 03-3848                              Parks v. Finan, et al.          3    4     Parks v. Finan, et al.                         No. 03-3848

the permitting scheme deficient in many respects under the                    permit, a person seeking to use the capitol grounds must
First Amendment, permanently enjoined CSRAB from                              apply, in writing, to CSRAB anywhere from 15 to 180 days
enforcing the permitting scheme against individual speakers.                  prior to the planned event. OAC § 128-4-03(A). The
We construe the injunction to apply only to the application of                application must include, inter alia, the name, address and
the permitting scheme to individuals who are not acting as                    telephone number of the person responsible for organizing the
part of a group or in concert, and we affirm on grounds more                  event, and must be accompanied by a $20 fee “to cover the
limited than those relied upon by the district court.                         administrative cost of issuing a permit.” OAC § 128-4-
                                                                              03(A)(6), (C).
                                    I
                                                                                CSRAB reviews timely filed applications and issues a
  Ohio’s Capitol Square consists of the state capitol buildings               response, generally granting the permit unless there is a
and the surrounding Capitol grounds, a ten-acre area bounded                  conflict for use of the space or the use threatens to violate the
on all sides by city streets. See Ohio Rev. Code Ann.                         restrictions of § 128-4-02(A). CSRAB may waive the
§ 105.41(L) (Anderson 2001) (amended 2002); Ohio Admin.                       timeliness requirements “for good cause shown.” OAC
Code (OAC) § 128-4-01(B) (2001). Use of the grounds,                          § 128-4-03(A), (Q).
which are generally open to the public, is governed by state
regulations rather than by Columbus ordinances. See Ohio                        On April 11, 2002, Parks entered the capitol grounds,
Rev. Code Ann. § 105.41(E)(2). The Capitol grounds                            positioned himself on a sidewalk near a plaque bearing the
includes the steps of the capitol itself, and all the area                    Ohio state motto, “With God, All Things Are Possible,” and
bounded by the surrounding streets, including the walkways,                   began to preach. On the same day, an animal rights group
grassy areas, monuments and fountains contained therein.                      called Protect Our Earth’s Treasures (“POET”) staged a small
OAC § 128-4-01(B). CSRAB has plenary control of Capitol                       rally in the same area of Capitol Square, to call on Ohio’s
Square, and is empowered to promulgate rules and regulations                  legislature to adopt an excise tax on meat. POET had a
for the use of the square. See Ohio Rev. Code Ann.                            permit to gather there, obtained with a waiver of the 15-day
§ 105.41(D)(3), (E).                                                          waiting period because the legislature had taken up a tax
                                                                              measure on short notice. Although Parks and the leader of the
    CSRAB makes the square available for speeches and                         POET rally were aware of each other’s presence, there is no
public gatherings advocating various causes, both secular and
religious, but requires a permit as a prerequisite for those
activities. Although CSRAB issues the permits on a first-                     been received, if such use:
come, first-served basis, it may deny permits if in its                           (1) Does not interfere with the primary use of the capitol
discretion it finds that the planned activity fails to meet one                       buildings or gro unds;
of five criteria.2 OAC § 128-4-02(A). In order to obtain a                        (2) Is appropriate to the physical context of the capitol
                                                                                      buildings or gro unds;
                                                                                  (3) Do es not unduly burden the m anaging authority;
    2
                                                                                  (4) Is not a hazard to the safety of the public o r state
      In pertinent part, the regulation provides that “Capitol buildings or           employees; and
grounds are available for use by the public for the purpose of                    (5) Does not expose the state to the likelihood of expenses
governmental business, pub lic meetings for free discu ssion o f public               and/or da mages which cann ot be recovered .”
questions, or for activities of a broad pub lic purpose, provided the
authorized procedure has been followed and appropriate approvals have         OA C § 128 -4-02 (A).
No. 03-3848                          Parks v. Finan, et al.      5    6    Parks v. Finan, et al.                       No. 03-3848

indication in the record that Parks’s preaching disrupted             in the context of this case are the same. For five reasons, the
POET’s activities. Nor did the permit indicate that POET had          district court found that CSRAB’s permitting scheme was not
the exclusive right to use any portion of Capitol Square.             narrowly tailored to serve a significant government interest,
                                                                      as required by the First Amendment.
   Shortly after Parks began speaking, two uniformed OSHP
troopers approached him and asked him to present his permit.             First, the district court reasoned that the permitting scheme
Learning that Parks had none, the troopers told him that he           lacked any meaningful time limit on the permitting process.
would have to leave. The supervising officer informed Parks           The district court considered the regulation requiring CSRAB
that a permit was required for speaking on the capitol                to act “without unreasonable delay” to be so vague as to
grounds, but he was free to speak on the perimeter sidewalks          “impose[] no concrete period of time in which the CSRAB
without a permit. Parks, fearing arrest, complied with the            must decide whether to issue a permit.” The lack of a definite
troopers’ request to leave.                                           time period, in the district court’s view, created an
                                                                      impermissible risk of the suppression of ideas, and this
  He returned to Capitol Square on April 19, 2002. This time          concern was not allayed by the “first-come, first-served”
instead of preaching he wore a sandwich board bearing                 standard, inasmuch as the standard could be waived by
religious content and distributed leaflets with religious             CSRAB.
messages. Again, Parks had not obtained a permit. Parks
testified in the district court that his religious beliefs preclude     Second, the district court concluded that the permitting
him from obtaining a permit to preach. As Parks had no                scheme granted CSRAB overly broad discretion to waive its
permit, OSHP troopers again confronted him and asked him              $20 permit fee. Although the district court noted that there
to leave the area. The troopers told Parks that he would be           was no evidence of improper manipulation of the permit fee
arrested and charged with criminal trespass if he remained.           to include or exclude certain speakers for content-based
Parks complied with the request and left the area.                    reasons, it reasoned that the permitting scheme was flawed
                                                                      nonetheless because there were no restrictions to permit
  On January 31, 2003, Parks filed suit in the district court         CSRAB from applying waivers to the permit fee for content-
seeking a declaratory judgment and a permanent injunction             biased reasons in the future. Moreover, the district court
preventing CSRAB from enforcing its permitting scheme                 concluded, CSRAB “failed to present a correlation between
against his activities. After conducting an evidentiary               the permit fee and the costs associated with the permit
hearing, the district court entered an order on June 4, 2003,         scheme.”
permanently enjoining CSRAB from enforcing the permitting
scheme “against individual speakers.” The district court                Third, the district court reasoned that the permitting scheme
concluded that, in several respects, the permitting scheme was        lacked precise standards to guide CSRAB’s discretion in
not narrowly tailored to serve a significant government               determining whether to grant or deny a permit to use Capitol
interest.                                                             Square. According to the district court, the provision by
                                                                      which CSRAB “reserves the right to regulate any conduct or
  The district court found that the Capitol Square area was a         activity not appropriate or consistent with the use of the
public forum, but did not find it necessary to determine              capitol buildings or grounds, or which may cause damage to
whether the area was a “traditional public forum” or a                state property” gives CSRAB discretion to exclude virtually
“designated public forum,” as the relevant constitutional tests
No. 03-3848                         Parks v. Finan, et al.      7    8        Parks v. Finan, et al.                            No. 03-3848

any activity without sufficient safeguards to prevent the                “absolutely empty in terms of the [regulation’s] stated
suppression of speech.                                                   goals.” Grossman [v. City of Portland], 33 F.3d at 1207
                                                                         ....
  Fourth, the district court identified three problems with the
permitting scheme that implicated the Supreme Court’s                The district court concluded that the permit scheme
opinion in Watchtower Bible and Tract Society of New York,           constituted an impermissible prior restraint on speech, a prior
Inc. v. Village of Stratton, 536 U.S. 150 (2002). The district       restraint that was unconstitutional on its face with respect
court noted first that the requirement that permit seekers           individual speakers, and as applied to Parks. The district
identify themselves on the permit application might deter            court permanently enjoined the defendants from enforcing the
speakers who prefer to remain anonymous. The district court          permit scheme against individual speakers. Defendants
also concluded that the permit scheme would chill a                  appeal.
substantial number of religious speakers who might opt to
remain silent rather than to ask the Government’s permission                                             II
to engage in evangelical activities. Also, the district court
reasoned that the permitting scheme eliminates a substantial           We affirm on the narrow ground upon which the district
amount of spontaneous speech because the advance notice              court concluded its opinion, that the permitting scheme as it
requirement precludes the expression of speakers who wish to         presently exists is invalid with respect to individuals.3 The
express themselves at the moment the speech becomes ripe.            injunction is limited to relief against enforcement of the
                                                                     permitting scheme against individuals, and that is all that we
   Fifth, the district court further concluded that the permitting   have before us. The district court expressly refrained from
scheme was invalid in particular as applied to individual            enjoining continued application of the permit scheme “as it
speech. The district court reasoned that the scheme                  pertains to groups,” and we take this limitation to extend to
proscribed more speech than was necessary to effectuate the          individuals speaking as part of a previously coordinated or
“laudable” and important government interests of                     organized effort to create a crowd. Much of the district
“preserv[ing] . . . the historical site, maintaining order and       court’s rationale would appear to invalidate the permitting
safety, ensuring that adequate support services are available,       scheme as applied to groups as well. We are largely
and maintaining the primary use of Ohio’s Statehouse to carry        unpersuaded by the parts of the district court’s reasoning that
out the business of state government . . . .” CSRAB,                 would logically invalidate the permitting scheme altogether.
according to the district court, does not “explain sufficiently       Affirmance of the injunction that was actually entered by the
how requiring a lone individual to obtain a permit actually          district court does not require us to make a definitive ruling
targets the preservation of the grounds”:                            on those issues, and we therefore consider them only briefly.

  the permit scheme labels those lone individuals with
  something to say as dangerous, while failing to offer
  what distinguishes them from other lone individuals who                 3
                                                                           CSRAB does not challenge the district court’s determination that the
  traverse onto capitol grounds, for example, to enjoy their         Capitol grounds area at issue is a public forum, and the parties on appeal
  lunch on the Statehouse steps. The distinctions—the                make no issue of whether the area is a “traditional public forum” or a
  addition of a sign, a leaflet, or something to                     “designated public forum .” The d istrict court found that its analysis did
  say—become, in the words of the Ninth Circuit,                     not require that the distinction be made in this case, and our analysis as
                                                                     well does not require that we make such a determination.
No. 03-3848                       Parks v. Finan, et al.     9    10   Parks v. Finan, et al.                       No. 03-3848

   The permitting scheme does not appear to vest                  burden[s] the managing authority.” Without a definition of
unconstitutional discretion in CSRAB to grant and deny            “undue burden,” or even an exemplary list of “burdensome”
permits to engage in expressive activity on Capitol Square.       activities, the provision arguably leaves it to CSRAB to
When a law predicates expressive activity on the prior            decide on any basis whether the burden of an activity on the
acquisition of a permit, the law must contain narrow and          managing authority is undue. On the other hand, it is
precise standards to control the discretion of the permitting     reasonably clear that the provision addresses the concern that
authority. Forsyth County v. Nationalist Movement, 505 U.S.       some activities require extra public expenditures for sanitation
123, 131 (1992). Section 128-4-02(A), with the possible           or police presence. A court reviewing a denial of a permit to
exception of subsection (3), contains clear and precise           Parks could easily conclude that there was no undue burden
standards which CSRAB can apply in making permitting              on the managing authority to permit him to speak. We leave
determinations.                                                   for another day the question of whether this provision
                                                                  warrants invalidation of the permitting scheme with respect
  The district court determined that the permitting scheme        to groups. It provides but a questionable basis for the order
grants CSRAB virtually unchecked discretion to deny permits       in this case invalidating the permitting scheme with respect to
for content-based reasons. In support of this conclusion,         individuals like Parks.
Parks isolates several terms in the regulation that he claims
would allow CSRAB to conceal favoritism or censorship in            The district court’s reliance on the waiver provision in
making permit determinations. Most of the terms clearly           § 128-4-02(I) as a basis for invalidating the permitting
limit the decision-maker’s discretion. See City of Lakewood       scheme is also questionable. In this regard, Parks maintains
v. Plain Dealer Publ’g. Co., 486 U.S. 750, 758 (1988)             that the phrase “for good cause shown” allows CSRAB to
(explaining that “[o]nly standards limiting the licensor’s        waive or refuse to waive the permit rules for virtually any
discretion will eliminate” danger of chilling protected           reason. Although he produced no evidence that CSRAB
speech). There is no statute or regulation imaginable that        granted waivers in an arbitrary or discriminatory fashion,
does not require some degree of interpretation by the agency      Parks maintains that the discretion contained in the provision
charged with its enforcement. The First Amendment requires        alone renders it unconstitutionally defective.
only that the regulation give the agency sufficient standards
to apply in determining whether to issue a permit. In our           Because the waiver provision does not act as a restriction
view, the standards “appropriate to the physical context of the   on expressive activity, the discretion must be treated
capitol,” “hazard to the safety of the public,” and “expose the   differently from that contained in the bases for granting or
state to the likelihood of [unrecoverable expenses],” are not     denying a permit. Even where discretion is broad, we would
so vague as to engender content-based favoritism. Although        generally not invalidate a waiver provision for overly broad
these terms do require CSRAB to evaluate whether an activity      discretion unless and until there is a showing of “a pattern of
conflicts with one of these provisions, these terms provide       unlawful favoritism.” Thomas v. Chicago Park Dist., 534
CSRAB sufficient guidance to determine whether it would be        U.S. 316, 325 (2002). To do otherwise would have the
appropriate to deny a permit, and allow for effective judicial    unintended effect of restricting more speech because CSRAB
review.                                                           could not relax its permitting rules to increase access to the
                                                                  forum. A rigid application of the permitting scheme would
 It is a closer question with respect to § 128-4-02(A)(3),        prevent any group with an emergent need, or any speaker with
which allows CSRAB to deny a permit if an activity “unduly        the inability to pay the permit fee, to use Capitol Square for
No. 03-3848                               Parks v. Finan, et al.        11     12    Parks v. Finan, et al.                       No. 03-3848

speech activities. It is undoubtedly preferable to allow some                                                 III
flexibility in the name of increasing the exercise of protected
speech.                                                                           The injunction is warranted, however, because application
                                                                               of the permitting scheme to individuals like Parks, who may
  That is not to say that the exercise of discretion in granting               be speaking, wearing signs, and/or leafletting,
and denying waivers could not, in some instances, present                      unconstitutionally burdens free expression in violation of the
constitutional problems. When a permitting authority uses                      First Amendment. Two aspects of the permitting scheme lead
waivers to promote preferred speakers or to inhibit disfavored                 us to this conclusion.
speakers, a court may invalidate the waiver scheme. See id.
In order to predicate a constitutional challenge to the waiver                   First, the regulation by its ambiguity sweeps too broadly
provision based on the existence of discretion in the                          with respect to when an individual must obtain a permit. The
regulatory scheme, a plaintiff would bear the burden of                        language of the regulation does not literally prohibit activity
establishing that the permitting authority used the waivers in                 in the absence of a permit, but instead makes the Capitol
a discriminatory manner. Parks, however, produced no                           grounds
evidence that CSRAB used its discretion to grant waivers to
preferred speakers, or deny waivers to disfavored speakers.                      available for use by the public for the purpose of
                                                                                 governmental business, public meetings for free
  The district court also found unconstitutional vagueness in                    discussion of public questions, or for activities of a broad
the provision in the regulation that “[t]he board shall, without                 public purpose, provided the authorized procedure has
reasonable delay, act upon the request [for a permit].” OAC                      been followed and appropriate approvals have been
§ 128-4-03(B) (emphasis added). The district court found                         received, if such use [here follow the five conditions
that this phrasing precluded reasonable delay but not                            discussed above].
unreasonable delay. The language in the regulation, however,
was obviously a scrivener’s error; the intent was undoubtedly                  OAC § 128-4-02(A) (emphasis added). The obvious negative
to require the board to take action without unreasonable                       inference, assumed by the parties and the district court, is that
delay. See Griffin v. Oceanic Contractors, Inc., 458 U.S.                      the grounds are unavailable for the named activities without
564, 571 (1982) (explaining that, where literal reading of                     a permit. If we make the same assumption, then the
statute is obviously at odds with intentions of drafters, the                  regulation prohibits the following activities without a permit:
drafters’s intent must control). The regulation has since been                 (1) use for the purpose of governmental business, (2) “public
revised to correct the error. OAC § 128-4-03(B) (Anderson                      meetings for free discussion of public questions,” and
2004). This part of the district court’s analysis does not                     (3) “activities of broad public purpose.” The first two are
support the issuance of the injunction.4                                       obviously not applicable to individuals like Parks: there is no
                                                                               governmental business involved, and an individual speaker is
                                                                               not a “meeting.” It follows that the regulatory basis for
    4
      The district court relied on another apparent scrivener’s error in
                                                                               telling Parks to stop his activities was that he was conducting
questioning the reasonability of the hours during which the grounds were
open. The court read the relevant regulation as limiting availability of the
capitol grounds to morning ho urs. The regulation did limit ava ilability to
the hours of “7 a.m. to 12:00 p.m.,” but “12 p.m.” was obviously               read “seven a.m. to twelve midnight.” OAC § 128-4-02(D) (Anderson
intended to mean mid night. T he regulation ha s since be en co rrected to     2004).
No. 03-3848                        Parks v. Finan, et al.    13    14   Parks v. Finan, et al.                       No. 03-3848

an “activity of broad public purpose” on the Capitol grounds       536 U.S. at 165-66. While there are some important
without a permit.                                                  differences between the permit scheme in this case and the
                                                                   one at issue in Watchtower, one of the core reasons for
  This ban is exceptionally broad, as demonstrated by the          invalidating the latter clearly applies to the permit scheme in
facts of this case. When Parks first came to the Capitol           this case as applied to individuals. That is, the permitting
grounds, he was engaged in public declamation, apparently          scheme effectively bans spontaneous speech on the Capitol
directed at least in part to the POET crowd, and he was told       grounds. The Supreme Court expressed this concern in
to stop. When he returned, a week later, he merely wore the        Watchtower in the following words:
sandwich boards and handed out leaflets, but again he was
told to stop. It is certainly not clear from the record that         there is a significant amount of spontaneous speech that
merely wearing the sandwich boards, without the leafletting,         is effectively banned by the ordinance. A person who
would have been allowed without a permit. And it is hard to          made a decision on a holiday or a weekend to take an
see how wearing sandwich boards is in any relevant respect           active part in a political campaign could not begin to pass
different from wearing an expressive T-shirt or carrying an          out handbills until after he or she obtained the required
expressive balloon. The permitting scheme, then, by the              permit. Even a spontaneous decision to go across the
breadth of the activity that to which it applies, raises serious     street and urge a neighbor to vote against the mayor
First Amendment concerns.                                            could not lawfully be implemented without first
                                                                     obtaining the mayor’s permission.
  Second, we are instructed by the Supreme Court in
Watchtower Bible and Tract Society of New York, Inc. v.            536 U.S. at 167.
Village of Stratton, 536 U.S. 150, 167 (2002), to give weight
to the concern that a permitting scheme will stifle                   Similarly, under the CSRAB permit scheme, two friends
spontaneous expressive activity. In Watchtower, the Supreme        debating which candidate should be elected President in
Court invalidated a village ordinance that required that door-     November while walking across the Capitol grounds are
to-door canvassers obtain a prior permit from the mayor’s          regulated by the permitting scheme, at least according to its
office by completing and signing a registration form.              literal terms, but it is highly unlikely that these people would
Applying the ordinance to all canvassers raised constitutional     continue their discussion if they knew a permit was required
concerns by virtue of the very breadth of the ordinance:           to do so. The permitting scheme also constrains the heckler
                                                                   who wishes to disagree with the expressive activity of a
  It is offensive—not only to the values protected by the          permitted activity. A beef rancher out for a leisurely stroll
  First Amendment, but to the very notion of a free                along Capitol Square who happened upon the POET
  society—that in the context of everyday public discourse         demonstration and wished to take on the protestors on the
  a citizen must first inform the government of her desire         issue of meat taxation would first need to obtain a permit to
  to speak to her neighbors and then obtain a permit to do         carry on debate with POET. If the rancher were aware that a
  so. Even if the issuance of permits by the mayor’s office        permit were required to debate this issue, he might be more
  is a ministerial task that is performed promptly and at no       likely to keep his mouth shut as he passed the demonstration.
  cost to the applicant, a law requiring a permit to engage        In each of these hypothetical situations, not only would the
  in such speech constitutes a dramatic departure from our         speakers need to pay $20 and obtain permits, but they would
  national heritage and constitutional tradition.                  either need to have done so fourteen days prior to speaking or
No. 03-3848                               Parks v. Finan, et al.        15     16       Parks v. Finan, et al.                         No. 03-3848

to have shown good cause for obtaining a waiver of the                           The resolution therefore does not merely reach the
permit policy. The permit fee and the bureaucratic formalities                   activity of respondents at LAX; it prohibits even talking
involved in obtaining a permit are likely to chill casual                        and reading, or the wearing of campaign buttons or
speakers who would otherwise make statements on Capitol                          symbolic clothing. Under such a sweeping ban, virtually
Square but find that the benefit of expression is far                            every individual who enters LAX may be found to
outweighed by the expense of applying for a permit. While                        violate the resolution by engaging in some “First
these examples may appear far-fetched, there is no apparent                      Amendment activit[y].” We think it obvious that such a
way that the present regulation, applied as it has been, can                     ban cannot be justified even if LAX were a nonpublic
easily be read not to apply.                                                     forum because no conceivable governmental interest
                                                                                 would justify such an absolute prohibition of speech.
   The permitting scheme is thus a substantially overbroad
restriction on individual speech. Although there may be some                   Id. at 574-75. Under the sweeping ban of OAC § 128-4-02 on
types of situations in which the regulation could validly be                   “activities of a broad public purpose,” one could also read a
applied to individual speakers, such as if a famous rock singer                ban on “wearing of campaign buttons or symbolic clothing.”
were to start performing or a Klansman were to start spouting                  Of course the CSRAB regulation, rather than prohibiting the
racist remarks,5 the permitting scheme sweeps a broad array                    activity, only requires a prior permit, but the sweeping facial
of ordinarily protected speech within its regulatory purview.                  effect is similar. When it comes to wearing a campaign
Indeed, it is close in its sweep to the Los Angeles Airport                    button or symbolic clothing, requiring a permit obtained 15
(LAX) resolution that the Supreme Court found facially                         days ahead of time, at a cost of $20, is pretty close in its effect
unconstitutional in Board of Airport Commissioners v. Jews                     to an outright prohibition.6
for Jesus, Inc., 482 U.S. 569, 574-75 (1987). That resolution
stated that “any individual and/or entity [who] seeks to                         The CSRAB permit scheme is also not sufficiently
engage in First Amendment activities within the Central                        narrowly tailored. As the Court in Watchtower instructs,
Terminal Area . . . shall be deemed to be acting in                            breadth alone does not render a permitting scheme invalid.
contravention of the stated policy of the Board of Airport                     536 U.S. at 168. It must also be determined whether the
Commissioners . . . .” 482 U.S. at 571. The Court reasoned:                    scheme is narrowly tailored to the government’s interest. Id.
                                                                               The Watchtower Court held that the ordinance in that case
                                                                               was insufficiently tailored to be warranted by the city’s
    5
      CSRAB suggests that a lone Klansman conveying a racist message
                                                                               legitimate interests in preventing fraud and crime, and in
on the Capitol grounds could lead to a disruptive disturbance. Something       protecting citizens’ privacy. In the instant case, CSRAB has
more than the mere objec tionab ility of the Klansman’s spe ech is             indeed identified important government interests supporting
necessary, however, in o rder to warrant a restriction o n his exp ression .   the need for a permitting process. These include CSRAB’s
W hether a speaker m ay be subjected to a permitting requirement must
turn on the time, place and manner of speech, and not the content of the
message or the likelihood that it will incite a response . Forsyth C oun ty,        6
505 U.S. at 134-35. If the Klansman example were enough to conclude                  Parks invokes two other concerns raised by the Watchtower court:
that the permit req uirement should be upheld in this case, then the           the protection of those who c hoo se to speak anonym ously and those who
exam ple proves too much. After all, the mere presence of certain              would be chilled from speaking because of religious scruples against
controversial individuals might draw a crowd or incite a response, but that    seeking state permission to preach. In view of our reso lution of this
fact could no t be a sufficient basis for requiring a permit for any           app eal, we need not decide whether these concerns weigh against the
individual to enter a p ublic forum.                                           CSRAB p ermitting schem e.
No. 03-3848                        Parks v. Finan, et al.    17    18   Parks v. Finan, et al.                      No. 03-3848

interests in protecting the physical condition of Capitol          regulation. 491 U.S. at 798-99. In upholding a requirement
Square, ensuring the safety of the public, and ensuring that       that New York City’s sound technician control the mixing
permitted speakers are able to engage effectively in               board during rock concert performances, the Court in Ward
expressive activities. The permitting scheme as it is now          distinguished a total ban on handbills as follows:
structured however restricts more expressive activity than is
necessary to accomplish those goals, and is not narrowly             The guideline does not ban all concerts, or even all rock
tailored to meet these goals. Instead, the permitting scheme         concerts, but instead focuses on the source of the evils
regulates a significant amount of casual and spontaneous             the city seeks to eliminate—excessive and inadequate
speech that is unlikely to implicate these significant concerns.     sound amplification—and eliminates them without at the
                                                                     same time banning or significantly restricting a
  In determining whether regulation of expressive activity is        substantial quantity of speech that does not create the
narrowly tailored, we look to determine whether the                  same evils. This is the essence of narrow tailoring. A ban
substantial government interest would be achieved less               on handbilling, of course, would suppress a great
effectively without the permitting scheme. Ward v. Rock              quantity of speech that does not cause the evils that it
Against Racism, 491 U.S. 781, 799 (1989). Particular types           seeks to eliminate, whether they be fraud, crime, litter,
of individual activity that might cause damage, endanger             traffic congestion, or noise. See Martin v. Struthers, 319
public safety, or interfere with other speakers, can be              U.S. 141, 145-146 (1943). For that reason, a complete
governed just as effectively, if not more so, by regulations         ban on handbilling would be substantially broader than
prohibiting or limiting such actions directly, without               necessary to achieve the interests justifying it.
imposing the requirement that individuals wanting to speak or
carry a sign obtain a permit 15 days ahead of time. For            491 U.S. at 799 n.7. This case is closer to the handbill ban
instance, the current regulatory limitations on permittees, if     than to the regulation upheld in Ward.
not already binding on persons legally present without a
permit, could easily be extended to such persons. These               CSRAB also asserts that the permitting process is necessary
include limits on bringing structures or vehicles on the           to regulate competing uses of the grounds and protect the free
grounds, attaching signs or banners to buildings, bringing         speech rights of those who use the process to obtain access to
animals on the grounds, commercial solicitation, operating         the grounds. Relying on our decision in Sistrunk v. City of
concessions, possessing alcohol, or using sound                    Strongsville, 99 F.3d 194 (6th Cir. 1996), CSRAB maintains
amplification. See OAC § 128-4-03(G)-(M). The blanket              that the permitting scheme enables it to “enhance” free speech
application of the permitting scheme to individuals, in            rights by limiting the use of areas on the capitol grounds to
contrast, is not sufficiently narrowly tailored to the interests   one permitted group, thereby amplifying the message of that
of protecting property, promoting safety, and permitting           group. In Sistrunk, we found no First Amendment violation
others to speak.                                                   when an official for the Bush-Quayle ’92 campaign
                                                                   confiscated a button advocating the opposing candidate from
  In Ward, the Supreme Court held that narrow tailoring did        a young woman seeking admission to a rally for the Bush-
not require the least restrictive means of serving legitimate      Quayle campaign conducted in a public park. Id. at 196.
government interests, but that narrow tailoring is satisfied as    Sistrunk makes clear that the First Amendment “does not
long as the regulation promotes a substantial government           prohibit the [government] from issuing permits to groups
interest that would be achieved less effectively absent the
No. 03-3848                       Parks v. Finan, et al.    19    20    Parks v. Finan, et al.                       No. 03-3848

seeking to make exclusive use of the Commons for expressive       complained that a member of POET asked him to leave,
activity during a limited period of time.” Id. at 198.            perhaps Sistrunk would have some application in this case.
                                                                  Here, however, Parks happened to be standing in the general
  Sistrunk is distinguishable in two important ways. First,       vicinity of POET’s demonstration, but made no attempt to
this is not a situation where one organization has been given     appear affiliated with it. There is no indication in the record
an exclusive permit to use grounds for a limited period. In       that Parks disrupted POET’s rally or that the POET
Sistrunk, the permit specifically provided that the use of the    organizers felt that Parks’s presence imposed upon the
grounds was limited to the members of the permittee               protest. Moreover, there is no indication that there was any
organization and their invitees. Id. at 196. The campaign         permitted use on April 19 when OSHP troopers asked Parks
committee had its own First Amendment interest in                 to leave Capitol Square because he was wearing sandwich
controlling who could attend its rally and what could be said     boards and handing out leaflets. CSRAB cannot avail itself
there. See Hurley v. Irish-American Gay, Lesbian and              of Sistrunk with regard to that incident.
Bisexual Group of Boston, Inc., 515 U.S. 557, 573-74 (1995)
(holding that organizers of Boston’s St. Patrick’s Day-              This case is also different from our well-reasoned, albeit
Evacuation Day Parade had First Amendment interest in             unpublished, decision in Spingola v. Village of Granville,
excluding marchers with messages that organizers chose not        2002 WL 1491874 (6th Cir., July 11, 2002). In that case, for
to convey). In contrast, the record does not show that POET       the duration of an assemblage permit issued to the Granville
was granted an exclusive permit to use a portion of the           Kiwanis Club to hold a Fourth of July celebration on a
grounds, or that Parks was in that exclusive area, or indeed      portion of the village streets, a village ordinance provided that
that POET objected to Parks’s presence.                           Granville could designate within the assemblage area a public
                                                                  speaking area. We upheld the ordinance’s prohibition of
   Second, in the instant case there is a greater level of        “public speaking designed to gather crowds” in the
governmental involvement in the filtration of inconsistent        assemblage area outside of the designated public speaking
messages than in Sistrunk. In Sistrunk, while the government      area. We reasoned that the village had a significant interest
granted the permitted organization the power to make              in crowd control, and that the interest would be less
exclusive use of the park, the government itself did not sort     effectively achieved without the ordinance because preventing
out “discordant speakers” whose messages were inconsistent        uncontrolled public speaking “provid[ed] a smoother flow of
with the theme of the demonstration. In the instant case, state   traffic within the festival crowd.” Spingola involved two
troopers determined that Parks’s activities were inconsistent     factors different from the instant case. First, the ordinance
with the permitted use. Although the government may have          applied during the limited-duration grant of a permit to
the power to grant permits for speakers to use public lands,      another private party to use a portion of the public streets.
and the speakers have First Amendment rights to exclude           Second, the ordinance was specific in the expressive activity
others whose messages are conflicting or inconsistent, that       that was isolated—“public speaking designed to gather
does not permit a governmental authority to determine which       crowds”—activity that, so tailored, had a direct impact on the
messages are discordant and to excise those messages to           village’s interest in crowd control. In contrast, the CSRAB
ensure the clarity of the permitted speaker’s message.            prohibition on “activities of a broad public purpose,”
                                                                  extending as it does to the mere wearing of a sign and
  If Parks tried to interpose himself in POET’s rally so that     handing out of leaflets, cannot be considered narrowly
he appeared to be a participant in that rally, and he             tailored to the interests CSRAB has identified.
No. 03-3848                              Parks v. Finan, et al.       21     22    Parks v. Finan, et al.                            No. 03-3848

  The CSRAB permitting scheme as enforced against                               For the foregoing reasons, the judgment of the district court
individuals thus is not narrowly tailored to a significant                   is AFFIRMED.
government interest, and this conclusion is sufficient to
uphold the district court’s injunction. We therefore need not
reach the additional requirement that ample alternative
channels be left open for communication.
  In concluding, we emphasize the limited nature of our
holding. The injunction does not preclude the enforcement of
the present permitting scheme to groups. The injunction is
expressly limited to individuals. We interpret this limitation
to allow application of the permit requirement to gatherings
of multiple persons by previous publicity or pre-arranged
coordination. We need not decide at this time the
constitutionality of applying the permitting scheme to such
gatherings.
   In addition, the injunction does not prevent CSRAB from
modifying its regulations to require a prior permit for certain
types of individual conduct, albeit expressive, that may more
directly implicate concerns of public order or safety. We
have been advised during our consideration of this case, for
instance, that a gentleman was considering parachuting onto
the Capitol grounds. Nothing prevents the CSRAB from
requiring a permit for such a stunt. And as our discussion of
Spingola demonstrates, the injunction does not prohibit
CSRAB from modifying its regulations to require a permit for
public speaking that is designed to gather an audience,
although we certainly do not decide the validity of such a
hypothetical CSRAB rule today. We note only that a
modification of the regulation to require a permit for such
individual activities would not run afoul of the district court’s
injunction, which by its terms extends only to enforcement of
the regulation “presently set forth” in OAC § 128-4.7


    7
      CSRAB has not argued , in light of the absence of a certified class,
that the district court’s order should have enjoined enforcement of the
permitting schem e against Parks only, and no t against other individuals    who are not parties. Accordingly, we do not reach that issue.
No. 03-3848                        Parks v. Finan, et al.    23    24    Parks v. Finan, et al.                        No. 03-3848

                     _______________                                  Although the permit scheme in Thomas could be considered
                                                                   more narrowly tailored than CSRAB’s policy, the fact that
                        DISSENT                                    this court can imagine regulations that would be more closely
                     _______________                               tailored to achieving CSRAB’s goals does not mean that
                                                                   CSRAB’s scheme is unconstitutional—“[the Supreme
  COOK, Circuit Judge, dissenting. Because I disagree with         Court’s] cases quite clearly hold that restrictions on the time,
the majority’s conclusion that CSRAB’s regulations are             place, or manner of protected speech are not invalid simply
vague, overbroad or not narrowly tailored, I respectfully          because there is some imaginable alternative that might be
dissent.                                                           less burdensome on speech.” Ward, 491 U.S. at 797 (internal
                                                                   quotation marks omitted). CSRAB’s interests in preserving
   First, CSRAB’s permitting scheme is not a “ban.” It does        the Capitol grounds and maintaining order and safety are
not prohibit speech; it merely regulates the time, place, and      substantial, and they would be achieved less effectively if
manner of speaking to accommodate the government’s                 individual speakers were not required to comply with the
interest in maintaining the Capitol grounds. Such regulations      permitting regulations.
are valid “provided the restrictions [of protected speech] are
‘justified without reference to the content of the regulated          Additionally, I disagree with the majority’s conclusion that
speech, that they are narrowly tailored to serve a significant     the phrase “for broad public purpose” is so vague as to render
governmental interest, and that they leave open ample              the regulations facially unconstitutional. The regulations
alternative channels for communication of the information.’”       applied to Parks’s conduct because he was preaching and
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)              distributing leaflets to the public. If someone were “wearing
(quoting Clark v. Community for Creative Non-Violence, 468         an expressive T-shirt or carrying an expressive balloon” and
U.S. 288, 293 (1984)). CSRAB’s regulations satisfy all three       also standing on the Capitol grounds in an effort to
criteria.                                                          communicate with the public, then her conduct would
                                                                   likewise require a permit. The majority’s statement that it is
  That CSRAB’s regulations are content-neutral and leave           affirming the district court’s injunction only with respect to
available ample alternative channels of communication is not       individuals, but not with respect to individuals “speaking as
in dispute. And contrary to the majority’s conclusion, the         part of . . . [an] organized effort to create a crowd,” implicitly
regulations are narrowly tailored because they “promote[] a        recognizes that valid, non-vague regulations can draw
substantial government interest that would be achieved less        distinctions based on speakers’ different purposes. The
effectively absent the regulation.” Ward, 491 U.S. at 799. In      majority draws a somewhat different distinction than CSRAB
Thomas v. Chicago Park District, the Supreme Court upheld          has drawn—the majority’s opinion requires two or three
a permit system that, like the one here, enabled the               individuals organized for the purpose of creating a crowd, but
government “to coordinate multiple uses of limited space, to       not two or three individuals who just happen to show up on
assure preservation of the park facilities, to prevent uses that   the Capitol Square at the same time, to obtain permits—but
are dangerous, unlawful, or impermissible under the Park           under both the majority’s opinion and CSRAB’s regulations,
District’s rules, and to assure financial accountability for       whether a speaker must obtain a permit depends upon the
damage caused by the event.” 534 U.S. 316, 322 (2002).             speaker’s purpose.
No. 03-3848                       Parks v. Finan, et al.    25

   I also disagree that the regulations are overbroad. The
regulations are not overbroad because they do not prohibit
any constitutionally protected speech, much less the
“substantial amount” of protected speech that would justify a
finding of facial invalidity. See Kreimer v. Bureau of Police,
958 F.2d 1242, 1265 (3d Cir. 1992) (“[T]he doctrine of
overbreadth is appropriately applied in a facial challenge only
where ‘the enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then the
overbreadth challenge must fail’” (quoting Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494 (1982))); accord Ward v. Rock Against Racism, 491
U.S. 781, 799 (1989); Bd. of Airport Comm’rs of City of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987).
   Rather than proscribing speech, the regulations establish a
permitting scheme that applies only to speakers using Capitol
Square for “activities of a broad public purpose.” Ironically,
the majority reads this phrase as prohibiting virtually all
speech—equating it with the Los Angeles International
Airport’s “First Amendment Free Zone”—but the phrase
instead constrains the reach of the permitting scheme. The
majority’s hypothetical T-shirt wearers or balloon carriers
might fall within the ambit of the permitting scheme, but only
if the purpose of their activity on Capitol Square were broadly
public. And nothing in the record suggests that the
regulations would apply to “two friends debating which
candidate should be elected President in November while
walking across the Capitol grounds,” because these speakers
would be engaged in a private conversation rather than an
activity of broad public purpose. For the same reason, the
majority’s concerns about stifling spontaneous speech are
unfounded. As for the rancher who might want to stop and
“debate” with the members of POET, nothing in the First
Amendment grants a would-be heckler the right to disrupt the
message of other speakers.
  For the foregoing reasons, I respectfully dissent.
