December 2010 - Parks & Recreation - 40

LAW REVIEW continued from page 35

The resolution proscribes selling
merchandise in what appears to be
virtually all of the public areas outside the walls of the Zoo by
delineating the restricted area as the

36	 Parks & Recreation

DECEMBER 2010

safe before and after the resolution. "

Conclusion
As a result, the federal district court held
that Metro had failed to meet " its burden
of establishing that the resolution is narrowly tailored to achieve the stated significant interest of safety. " Further, based
on the existing record, the court found
Higher Taste had established a likelihood of success on its constitutional
challenge to the ordinance.
Zoo's entranceway and its adjacent
pathway and parking areas. While
Metro may ultimately be able to justify such an expansive area of
restriction, the present record falls
short of such justification.

Further, without " greater detail, " in
the opinion of the federal district court,
it was " not clear " what would be considered the " entranceway " within the context of the challenged ordinance. Absent
such clarification, the court found the
entranceway could include " an area
that may have greater need for the exclusion of activities that are not under
the direct control of Metro. " As a result,
based on the record in this case, the federal district court concluded that Metro
had not " met its burden of establishing
that the resolution is narrowly tailored to
achieve the stated significant interest of
aesthetics. "
If the federal district court issued an
order prohibiting enforcement of the
resolution, Metro argued that it would
unduly impair its significant governmental interest in public safety. Specifically, Metro claimed a public safety
hazard would be produced " due to congestion and hazards to the public in using the walkways and entrance path of
the Zoo. " Once again, the federal district
court found Metro had " not supplied the
Court adequate evidence that such is the
case. " Specifically, during the hearing
or in its pretrial briefs, the court found
that " Metro did not cite to any incident
where safety was actually compromised
as a result of Higher Taste's activities at
the Zoo. " Moreover, in the opinion of the
court, " [t]he Zoo appears to be just as

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Although Metro has a significant interest in aesthetics and safety, it has not
shown that the resolution is narrowly
tailored to meet these interests. Accordingly, the Court concludes that
granting the injunction will not accrue
harm to Metro or the citizens. Further,
the Court concludes that any harm
that might accrue is not sufficient to
warrant an unconstitutional restriction
of First Amendment freedoms, which
Higher Taste has established is likely
the case here.

The federal district court, therefore,
issued an order prohibiting Metro from
enforcing Resolution 40-05, pending
further proceedings to ultimately determine whether the challenged resolution was unconstitutional. Further, the
court stated that this preliminary injunction order " would be in effect until the
matter is resolved, at which time the injunction may be lifted or permanently
imposed. " In the meantime, the federal
district court ordered the parties Metro
and Higher Taste " to meet and confer to
determine a reasonable arrangement,
consistent with this order, that enables
Higher Taste to continue selling its Tshirts and otherwise conducting its free
speech activities at the Zoo. " If the parties failed to reach such an agreement,
the court noted that the " Plaintiff may
seek further relief from the Court. "  
James C. Kozlowski, J.D., Ph.D. is an
associate professor in the School of
Recreation, Health, and Tourism at
George Mason University in Manassas,
Virginia. E-Mail: jkozlows@gmu.edu
Webpage: http://mason.gmu.
edu/~jkozlows

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promote its aesthetic concerns. "
The specific question before the
court was, therefore, " whether Metro's resolution is narrowly tailored to
achieve this stated interest. " In so doing,
the court noted that " [a]esthetic considerations must be carefully scrutinized to
determine if they are only a public rationalization of an impermissible purpose. "
While acknowledging that public safety and park aesthetics represented " unquestionably significant interests, in the
abstract, " the federal district found such
significant governmental interests were
" not at issue here. " As a result, the federal district court rejected Metro's park
aesthetics rationale for the challenged
ordinance.
In the opinion of the federal district
court, Metro had " not presented sufficient evidence to support the proposition
that Higher Taste's activities actually impair the Zoo's aesthetics or that such an
impairment is inherent (i.e., not speculative) in regard to their activities. " On the
contrary, the court noted that the record
presented " evidence of only one group
seeking to set up one table to sell constitutionally protected messages in the
form of T-shirts. " In the absence of evidence of " what Higher Taste's small table would look like to visitors of the Zoo "
based on " two pictures of Higher Taste's
T-shirt stand " provided by Metro, the
federal district court found Metro had
failed to " justify the intrusion on Higher
Taste's right to free speech at a public forum. " As a result, the court found Metro
had merely offered unsupported speculation that " the Zoo would be overrun
with vendors if they are enjoined from
enforcing the resolution. "
According to the federal district
court, unsupported speculation was
not sufficient to establish that Metro had
" narrowly tailored its resolution concerning restrictions as to place or location of the prohibited activity " to avoid
" visual blight. "
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