May 2012 - Parks & Recreation - 29

interest, and leave open ample alternative channels of communication.

Content Neutral?
As noted by the federal appeals court,
" [a] major criterion for a valid time, place
and manner restriction is that the restriction may not be based upon either the
content or subject matter of speech. "

other nature venue, where they experience the natural world (and green exercise) together.
Family nature clubs, and similar
approaches, provide a greater sense of
" [t]hefor
Fairborn
Association
Comsafety
fearfulArts
parents.
They can
be
mittee shall have total control over the
created in any neighborhood, whether
renting of all booth space. "
inner city, suburban, or rural. The clubs
Under the circumstances of this case,
can be joined or created by any kind of

however, the federal appeals court found

family. They increase motivation; it's
much more likely that a family will
show up at a park on Saturday morning
if they know there's another family
waiting for them. And, importantly,
" no
evidence
that
or Fairborn's
there's
no need
to the
waitpolicy
for funding.
actions
by disagreement
Familieswere
can motivated
do this themselves,
and
with Bays's and Skelly's religious message
they can do it now.
or by a desire to silence that message. " On
Similar approaches are catching on.
the contrary, the court found no evidence

Government regulations of speech are
content neutral if they are justified without reference to the content or
viewpoint of the regulated speech. The
government's purpose is the controlling consideration, and a restriction is
content-based if it was adopted because of disagreement with the
message the speech conveys.

In this particular instance, Bays and
Skelly argued that " the solicitation policy
is content-based because its purpose is to
target and silence religious expression. "
The federal appeals court rejected this
argument. In the opinion of the court, the
Festival solicitation policy was " a content
neutral regulation " because the policy
" applies evenhandedly to all who wish to
solicit causes " by requiring " all expression take place from a stationary location " :
No person or organization, whether
commercial or charitable, is permitted
to engage in such activities except from
a booth rented for those purposes.

In this particular instance, the federal
appeals court accepted Fairborn's assurances that " the method for allocating booth space under this policy is a
straightforward first-come, first-served
system, which allays any concern that
the policy has the potential for becoming a means of suppressing a particular
point of view. " In so doing, however, the
appeals court cautioned that the terms of
the policy " appear to reserve discretion
in the festival organizers to deny permits
on the basis of content, and such schemes
have long been held unconstitutional " :
The Terms and Conditions of the booth
application prohibit " [t]he display or
sale of any merchandise that is illegal,
undesirable, or inappropriate for a
family-oriented festival " and state that

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2 0 1 2 Parks

& Recreation 27

May 2012 - Parks & Recreation

Table of Contents for the Digital Edition of May 2012 - Parks & Recreation