December 2015 - Parks & Recreation - 33

of spectators " in Santa Monica. As a
traditional public forum, the appeals
court acknowledged the committee could claim a First Amendment
right to communicate their message
to Palisades Park visitors. Such communication protected by the First
Amendment, however, did not necessarily involve unattended displays. As
characterized by the appeals court,
consistent with the challenged ordinance, the committee would still be
" able to speak in the park, " but " simply cannot do so by erecting large,
unattended structures. "

ed that speakers do not have a First
Amendment right to dictate the manner in which they convey their message
within their chosen avenue.
On the contrary, the appeals court
acknowledged, " Government may
regulate the manner of speech in a
content-neutral way. " (Emphasis of the
court) Accordingly, consistent with the
First Amendment, the court found the
city could limit the manner of speech
by requiring large displays to " be attended or erected as part of limited-duration 'community events.' "
In the opinion of the federal ap-

The appeals court noted that speakers do not have
a First Amendment right to dictate the manner in
which they convey their message within their chosen
avenue.
The committee also argued it was
" impractical " to " arrange for the nativity scenes to be attended displays. "
Specifically, the committee claimed
it could not " practically recruit volunteers or afford to pay people to be
present " while the displays are up.
The appeals court rejected this argument. According to the appeals court,
" the fact that the alternative channels
of communication left open by a regulation are more expensive is not, by
itself, sufficient to show that those alternative channels are inadequate. "
The committee contended further
that the First Amendment " protects its
right to choose a particular means or avenue of speech " - i.e., unattended displays. The federal appeals court agreed
that " speakers have a First Amendment
right to choose a particular means or avenue of speech to advocate their cause. "
That being said, the appeals court not

peals court, the challenged ordinance
left open sufficient alternative channels of communication allowing " the
committee to disseminate its message
in person in many different ways, including attended displays and unattended displays that are part of single-day 'community events.' "
Conclusion
Having found the challenged ordinance was a " valid time, place and
manner regulation, " the federal appeals court affirmed the judgment of
the district court dismissing the committee's claim under the Free Speech
Clause of the First Amendment.
In so doing, the federal appeals
court acknowledged that the committee might understandably resent
" the way in which the city curtailed
its traditional way of celebrating the
Christmas season in Palisades Park, "

but the city did not violate the First
Amendment when it banned all unattended private displays.
James C. Kozlowski, J.D., Ph.D., is an
attorney and Associate Professor in the
School of Recreation, Health and Tourism at
George Mason University (jkozlows@gmu.
edu). Webpage with link to Law Review
articles archive (1982 to present): http://
mason.gmu.edu/~jkozlows.

Additional
Resources
For more information related to holiday displays in parks, check out these
previous Law Review columns:

'Unattended Structures' Ban
Includes Nativity Scene on
Town Green
By James C. Kozlowski, Parks & Recreation magazine, February 2002
http://cehdclass.gmu.edu/jkozlows/lawarts/02FEB02.pdf

Religious Message Excluded
From Christmas Displays
in Park
By James C. Kozlowski, Parks & Recreation magazine, July 2004
http://cehdclass.gmu.edu/jkozlows/lawarts/07JUL04.pdf

Constitution Bans Religious Effect in Public Holiday Displays
By James C. Kozlowski, Parks & Recreation magazine, October 1989
http://cehdclass.gmu.edu/jkozlows/lawarts/10OCT89.pdf

A Christmas Carol in the Park
From the Supremes
By James C. Kozlowski, Parks & Recreation magazine, June 1985
http://cehdclass.gmu.edu/jkozlows/lawarts/06JUN85.pdf

W W W. N R PA . O R G | D E C E M B E R 2 0 1 5 |

Parks & Recreation

December 2015 - Parks & Recreation

Table of Contents for the Digital Edition of December 2015 - Parks & Recreation