September 2013 - Parks & Recreation - 30

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L AW R E V I E W

This type of targeted " post-hoc " permitting scheme
would be constitutionally suspect because the
legislative response would appear to be in reaction
to a particular demonstration.
within the context of First Amendment speech cases, the federal district
court would determine " whether the
government has adopted a regulation
of speech because of disagreement
with the message it conveys. "
In this particular instance, the
court found §12.72.090 was " content-neutral " because it " applies to
all park users who have not obtained
a permit to remain in the park. " Further, the law did not regulate speech.
Instead, the court found the law's
" prohibition against remaining in
the parks after certain hours merely
regulates the hours that anyone can
remain in City parks. "
More significantly, the court found
§12.72.090 was content-neutral because the law " does not make reference to prohibiting any kind of

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speech or expression. " Moreover, the
court noted " the ordinance at issue
here was enacted in the 1970s and
has been in its present form since its
amendment in 1981. "
§12.72.090 predates the Occupy Sacramento demonstrations by
roughly 30 years, there is no allegation that the City was not enforcing
it pior to October 6, when Plaintiffs
began congregating in the park,
and there is evidence that the City
has been consistently enforcing the
ordinance since the demonstrations
started.
While §12.72.090 does have the
direct effect of limiting speech and
expressive activities in City parks
during those hours during which
people are not permitted to remain
or loiter in the parks, the Court

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notes that " reasonable time, place
or manner regulations normally
have the purpose and direct effect
of limiting expression but are nevertheless valid. "
Having found no allegation or evidence of any " content-based purpose
behind §12.72.090, " the federal district court concluded " §12.72.090 is
content-neutral. "
In reaching this determination, the
federal district court distinguished
the situation described herein from
those faced by " Occupation " demonstrators in some other cities wherein
officials allegedly enacted a policy
that established a curfew and permit
regulations on public land after demonstrators began gathering in a public space. This type of targeted " posthoc " permitting scheme would be
constitutionally suspect because the
legislative response would appear to
be in reaction to a particular demonstration. Under such circumstances,
legislation directed at a particular
group would not be " content-neutral. " On the contrary, it would appear to be based upon governmental disagreement with the particular
message of the demonstrators.
Narrowly Tailored?
According to the federal district court,
" any permit scheme controlling the
time, place and manner of speech
must not be based on the content of the
message, must be narrowly tailored to
serve a significant governmental interest and must leave open ample alternatives for communication. " In addition, the court noted that " [a]ny such
regulation of speech or speech-related
conduct is overbroad - and therefore
facially invalid - if it punishes a substantial amount of protected speech,
judged in relation to the regulation's
plainly legitimate sweep. "

September 2013 - Parks & Recreation

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