May 2012 - Parks & Recreation - 31

According to the court, " mere speculation
about danger is not an adequate basis on
which to justify a restriction of speech. "
On the contrary, the appeals court found
governments are required to " demonstrate that the recited harms are real, not
merely conjectural, and that the regulation will in fact alleviate these harms in a
direct and material way. "
In so doing, the federal appeals court
acknowledged that " the Festival does offer booths for those wishing to distribute literature and display signs, so in that
sense the solicitation policy is not a total
ban on those activities. " Despite the fact
that " potential speakers could obtain a
booth and information table in another
area, nonetheless, the federal appeals
court found " Fairborn's policy is substantially broader and includes sign display
and any other solicitation of causes. " In
the opinion of the court, the " overbreadth
of the solicitation policy is clear " because

Fairborn's policy " prohibits all 'solicitation
of causes' outside of booths, including
sign display, leafletting, and discussions,
without regard to whether that speech is
designed to gather crowds. "
Accordingly, " even if Fairborn could
demonstrate significant interests served
by the policy, " the federal appeals court
held the " solicitation policy is unconstitutional because it is not narrowly tailored to
serve a significant government interest. "
In so doing, the appeals court acknowledged that the " loss of First Amendment
freedoms, for even minimal periods of
time, unquestionably constitutes irreparable injury. " According to the court, " it
is always in the public interest to prevent
violation of a party's constitutional rights. "

Conclusion
The federal appeals court, therefore, ordered the federal district court to grant
a preliminary injunction in favor of

plaintiffs. As a result, pending further trial
proceedings, Fairborn would be prohibited from enforcing the unconstitutional
solicitation policy. At trial, Fairborn would
have an opportunity to explain how the
policy was a reasonable regulation of free
speech that would necessarily alleviate
real harm associated with crowd control
in a direct and material way.
In addition, or in the alternative, Fairborn could certainly attempt to revise the
solicitation policy in an attempt to achieve
a constitutional regulation of speech that
would be " narrowly tailored to serve a
significant government interest. "
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 in
Manassas, Virginia. Email: jkozlows@gmu.
edu. Webpage with link to Law Review
articles archive (1982 to present):
http://mason.gmu.edu/~jkozlows.

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