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that Bays and Skelly " were singled out
by the Fairborn officials or that the policy was selectively enforced against them
because of their religious message. " In
addition, the court noted that " Bays and
Skelly were not denied a booth " and there
was " no evidence that the organizers have
ever awarded booths on any basis other
than first-come, first-served. " As a result,
the federal appeals court held " the solicitation policy is content neutral. "

Narrowly Tailored?
" To be a 'constitutional time, place, and
manner restriction', " the federal appeals
court acknowledged " the solicitation policy must be narrowly tailored to serve a
significant government interest. "
To be narrowly tailored, a restriction on
speech must not burden substantially
more speech than is necessary to further
the government's legitimate interests.
Although a regulation may satisfy
the tailoring requirement even though
it is not the least restrictive or least intrusive means of serving the state's
goal, it must not be substantially broader than necessary.

According to the court, " the government may impose regulations in order
to assure the safety and convenience of
those using public forums. "
As noted by the court, in this particular instance, Fairborn discussed " several
purposes of the solicitation policy that are
undoubtedly legitimate government interests in certain contexts: ensuring smooth
pedestrian traffic flow, increasing public
safety, and relieving congestion and overcrowding. " Specifically, Fairborn contended, " a booth requirement for the sale
or distribution of any materials served the
significant government interest of alleviating congestion and maintaining the orderly movement of the crowd. "
In determining " the constitutionality
of a regulation, " the appeals court would
consider a forum's special attributes " and
assess " the significance of the government interest " in light of the characteristic nature and function of the particular
forum involved. " As characterized by the
court, the specific issue was whether the

28 Parks & Recreation M A Y

stated governmental interest in crowd
control was " significant in the context of
the Festival at Community Park, " and, if
significant, " whether the solicitation policy is narrowly tailored to serve those
interests. " In this particular instance,
the federal appeals court concluded
" [t]he solicitation policy does not meet this
standard. " In so doing, the court found
" Fairborn has not pointed to any specific
space or crowd concerns at the Festival " :
Here, there is no fence surrounding the
Festival at Community Park and no admission fee to enter. And Fairborn does
little to demonstrate the significance of
crowd control at the Festival. Although it
consistently argues reduced congestion
and smooth traffic flow as the purposes
behind the solicitation policy, Fairborn
must do more than assert interests that
are important in the abstract.

As a result, in the opinion of the federal
appeals court, " the interests espoused by
Fairborn may not be significant enough
to justify these speech restrictions in this
particular forum. "
" Even assuming Fairborn does have a
significant interest in crowd control and
smooth traffic flow, " the federal appeals
court held " the solicitation policy is unconstitutional because it is not narrowly
tailored to further those interests. " Specifically, the court found the " scope of the
Festival solicitation policy, which prohibits sales or soliciting of causes outside
of booth space, is 'substantially broader
than necessary'. "
On its face, the policy prohibits any solicitation of causes, including displaying
signs, distributing literature or leafletting, and one-on-one conversations, if
those conversations are motivated by a
desire to solicit certain causes, such as
the plaintiffs' religious message.

Moreover, the federal appeals court
found the " incident between the plaintiffs
and Fairborn officials at the Festival " indicated the policy was broader than necessary because it included the prohibition
of one-on-one conversations. "
In Bays's account, which has not been
disputed by Fairborn, officer Myers
stated that the plaintiffs were

2 0 1 2 w w w . N R P A . O R G

" probably ok " to talk to other people
as long as " people [do not] indicate to
us that you are bothering them . . . . If
we start getting approached by people
who say, 'Hey these two guys are approaching me and bothering me and
talking about stuff I don't want to hear,
then you're going to have a problem'. "

According to Fairborn, prohibiting
one-on-one discussions in the solicitation
policy was necessary because " such discussions will effectively slow the foot-traffic among the patrons, thereby causing
increased levels of congestion at the Festival. " Further, Fairborn claimed that " the
solicitation policy does not prohibit 'oneon-one discussions' outside of booths, but
instead only restricts sign display, leafletting, and " stationary preaching. " The appeals court rejected this argument.
This interpretation is inconsistent with
the plain language of the policy, which
does not distinguish between solicitation by conversation and solicitation by
" stationary preaching, " and inconsistent with Fairborn's previous position.

As noted by the court, Fairborn officials
had claimed that " one-on-one conversations may be acceptable, so long as the
plaintiffs did not bother anyone or talk
about things festival goers did not want
to hear (such as a religious message). "
In the opinion of the federal appeals
court, " sanctioning one-on-one conversations " at the Festival that might bother
someone indicated Bays and Skelly were
effectively " prohibited from engaging in
their religious discussions. " As cited by
the federal appeals court, the U.S. Supreme Court has held that " an individual's speech is protected even if it does not
meet standards of acceptability from the
potential audience's view " :
We cannot countenance the view that
individuals who choose to enter parks,
for whatever reason, are to be protected from speech and ideas those
individuals find disagreeable, uncomfortable, or annoying.

In addition, the federal appeals court
noted that " Fairborn does not explain
how the solicitation policy is necessary
to serve their interests in crowd control. "

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