Christian group appeals free-speech decision

PIERRE, S.D. - A Christian legal group is appealing a federal judge's ruling that found Mount Rushmore National Memorial did not violate a Minnesota man's free-speech rights when it required him to get a permit before distributing religious materials at the memorial.

Michael Boardley, of Coon Rapids, sued the Interior Department, National Park Service and five federal officials in November 2007 after he was told he would need a permit to distribute "gospel tracts" at the monument in western South Dakota. He said he later applied for a permit, but did not get one until after he filed the lawsuit.

U.S. District Judge James Robertson of Washington ruled March 17 in favor of the federal agencies and officials, saying Mount Rushmore did not violate Boardley's constitutional rights. But the judge struck down one phrase in National Park Service regulations dealing with permits because the phrase is unconstitutionally vague and gives officials too much discretion.

Lawyer Heather Gebelin Hacker of the Alliance Defense Fund, which is representing Boardley, said Wednesday the U.S. Court of Appeals for the District of Columbia has been asked to review Robertson's ruling.

"The national parks and their historical significance makes them very important areas for people to be able to exercise their rights," Hacker told the Associated Press. "So when an individual is in a designated area of these parks that's suitable for speech, there's really no reason why they should have to go and get a permit first if they're just one person or a small group of people."

A Park Service spokesman said the agency does not comment on pending court cases.

Boardley handed out religious material near the entrance to Mount Rushmore on Aug. 9, 2007, but when he returned the next day, a park ranger told him he could not distribute printed material without a permit. Boardley went home and called Mount Rushmore to request a permit for another trip, but he said he did not receive a permit or even a permit application.

Boardley then filed suit alleging two Park Service regulations are unconstitutional because they violate the First Amendment's protection of free speech and freedom of religion and the Fifth Amendment's guarantee of equal protection.

Judge Robertson said Boardley did not present enough evidence to establish that park officials treated him differently than anyone else when they required him to get a permit, and his claims about officials' failure to respond to his request for a permit is moot because he eventually got a permit and preached and handed out material at Mount Rushmore in the summer of 2008.

The judge said permits are a prior restraint on free speech, but the government can impose some restrictions on when, where and how people express themselves as long as those restrictions are narrowly drawn to serve a governmental interest and are not based on the content of the speech.

One regulation requires permits for public assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views. The phrase "other public expressions of views" must be stricken from the regulation because it is more restrictive than is required to achieve the government's aim of preserving the scenic view, historic value, cleanliness, tranquility and safety of the park, the judge said.

The phrase also gives officials too much discretion, which could lead to selective enforcement of the permit requirement, the judge said.

The phrase "public expressions of views" must be stricken, but the rest of the regulations can stand, the judge said.

"Unlike people walking in the city center or entering the subway, visitors to a national park expect a peaceful and tranquil environment, and the government has a legitimate interest in providing that experience to them," Robertson wrote. "Even a small demonstration, or a lone pamphleteer, can disrupt that experience, particularly in some of the smaller parks."

The permit regulations could help individuals and small groups by allowing park officials to take steps that prevent others from interfering with their demonstrations, the judge said.

Hacker, the lawyer for Boardley, said the appeal will argue that permit requirements for individuals and small groups are not tailored narrowly enough.

"The requirement of a permit for individuals and small groups really burden speech. ... What happens is if somebody is not going to be in that location for two days, as Mr. Boardley was not, that essentially prevents them from being able to express their rights there," Hacker said.