[Naturist Freedom - Miss Naturist Freedom
Berry Spitsberg
THIS CAUSE has come before the Court upon the plaintiffs' Second Motion for Summary Judgment and the defendant's Second Motion for Summary Judgment. These motions have been fully briefed and the Court heard oral arguments of counsel on November 18, 1993.
The Naturist Society, Inc., is a Wisconsin corporation that advocates a "clothing optional" lifestyle and educates the public through writings, lectures, and public demonstrations. Ms. T.A. Wyner is a Florida resident who has belonged to the Society as a member since 1987. The Society meets as both a local and national organization several times a year.
On June 29, 1988, the plaintiffs contacted John Fillyaw, the park manager for the John D. MacArthur Beach State Park and advised him that the Society wished to demonstrate at the park. Wyner requested permission for Society members to approach park visitors and distribute literature, to display a two-foot by four-foot sign with the phrase "Sunnier Palms," to exhibit nude sculptures, and to appear nude or with minimal clothing. On July 6, 1988, defendant Fillyaw issued a permit allowing the Society to distribute printed literature within the park. The permit allowed the plaintiffs to demonstrate at the park on Saturday, July 9, 1988, during the peak visiting hours of 10:00 a.m. to 1:00 p.m. The plaintiffs were allowed to protest from a fixed location, approximately one hundred yards north of the park's entrance, and to utilize a table for their materials. However, defendant Fillyaw directed the plaintiffs not to approach park visitors directly on the beach and not to display the requested banner and nude sculptures.
On July 14, 1988, plaintiff Wyner wrote a letter to defendant Fillyaw to confirm the various conditions which had been placed on the demonstration. The defendant promptly responded by letter dated July 22, 1988, in which he cited to the various portions of Florida Administrative Code, Chapter 16D-2, which provided him with the legal authority to curtail the plaintiffs from directly approaching visitors on the beach, from appearing in inappropriate beach attire, and from displaying banners and nude sculptures on the beach.
On Saturday, July 9, 1988, in accordance with the permit, the Naturists appeared at the park and demonstrated. Approximately thirty persons attended. At the demonstration, Ms. Wyner was fully attired in a long dress and there is no allegation that the group appeared nude. The group did not bring signs, banners, or artwork because of the limitations imposed by Fillyaw. There is no evidence of how many visitors stopped at the demonstration.
On May 4, 1990, this Court entered a final order granting defendant Fillyaw's motion for summary judgment and denying the plaintiffs' motion for summary judgment. This Court held that the regulation governing beach attire, Rule 16D-2.004(1) (e), was neither overbroad on its face nor vague as interpreted and applied by defendant Fillyaw. Finding the park to be a "non-public forum," this Court further held that the other challenged regulations constituted legitimate, content-neutral, time, place and manner restrictions on speech and expressive conduct. That final order was appealed to the United States Court of Appeals for the Eleventh Circuit.[1]
After this Court entered its final order, the state of Florida adopted amendments to the regulations challenged by the plaintiffs. In relevant part, the amended regulations allow signs, displays, and exhibits in Florida parks after a permit has been obtained. Fla.Admin.Code Ann.R. 16D-2.007(1); 16D-2.008(2) (a), (b). Similarly, the amended regulations allow circulation of petitions, but only in accordance with a permitting procedure. Fla.Admin.Code Ann.R. 16D-2.007(5). The Society has never applied for a permit under the new regulations, nor has it attempted to demonstrate without a permit.
On June 27, 1991, the Eleventh Circuit upheld this Court's opinion. However, upon petition for rehearing, the Eleventh Circuit affirmed in part, reversed in part, and remanded this action for further proceedings consistent with its determination that MacArthur Beach State Park is a public forum for purposes of First Amendment analysis.
Following remand, the plaintiffs filed their second amended complaint, challenging various provisions of the former and amended regulations governing conduct in Florida state parks. Count I of the plaintiffs' second amended complaint alleges that former Rule 16D-2.007(1) (a)-(h) is unconstitutional on its face and as applied to the plaintiffs, and that defendant Fillyaw's conduct enforcing the rule violated clearly established law. Former Rule 16D-2.007(1) (a)-(h) provides:
According to the plaintiffs, former Rule 16D-2.007 is unconstitutional on its face and as applied because it vests too much discretion in park managers, fails to provide for prompt administrative and judicial review of permit denials, and prohibits plaintiffs from approaching people on the beach.
According to the plaintiffs, Amended Rule 16D-2.007(1) (a)-(i) is unconstitutional on its face because it also vests too much discretion in park managers, fails to provide for prompt administrative and judicial review of permit denials, and prohibits non-commercial solicitations and sound amplification equipment.
The plaintiffs claim that this rule is unconstitutional on its face and as applied to the plaintiffs, and that defendant Fillyaw violated clearly established law by invoking the rule as authority for prohibiting plaintiffs from setting up an art exhibit in conjunction with the distribution of literature.
The plaintiffs argue that this rule is unconstitutional on its face and to the extent that it prevents them from selling posters, bumperstickers, T-shirts, and art with expressive messages for the purpose of fundraising.[2]
Upon review of both former and amended Rule 16D-2.007, as well as former and amended Rule 16D-2.008, the Court finds that none of these regulations restricts speech on the basis of content. Both forms of Rule 16D-2.007(1) (a) provide for the distribution of printed matter, so long as it is not solely commercial advertising, and the distributor has first obtained a permit from the park manager. Amended Rule 16D-2.007(1) (a) permits demonstrators to use exhibits, displays, and signs as well. Subsection (1) (b) of former and amended Rule 16D-2.007 requires that a permit application contain the following information: name of the applicant; the name of the organization, if any; the date, time, duration, and location of the proposed sale or distribution; and the number of participants. Subsection (1) (c) of former and amended Rule 16D-2.007 provides that the park manager must issue a permit unless one or more of the specified, content-neutral exceptions apply.
Subsection (1) (d) of both former and amended Rule 16D-2.007 requires the park manager to designate on a map, which shall be available for inspection in the Office of the Manager, the locations within the park area that are available for the sale and distribution of printed manner (or exhibits and displays, pursuant to amended Rule 16D-2.007). Subsection (1) (d) of the amended rule also sets forth the criteria for designating an area as not available. According to this section, a permit must be denied if the location applied for is not a designated available area. Subsection (1) (e) of the former and amended rules provides that a permit may contain such conditions as are reasonably consistent with protection and use of the park area. Subsection (1) (f) sets forth the time limitations on the permit. Subsection (1) (g) prohibits demonstrators from obstructing or impeding pedestrians or vehicles, harassing park visitors with physical contact or persistent demands. Subsection (1) (h) prohibits the sale or distribution of printed matter without a permit. Finally, subsection (1) (i) of amended Rule 16D-2.007 provides the conditions for revocation of a permit. The plaintiffs are unable to identify, and the Court is unable to find, any content censorship inherent in these regulations.
The plaintiffs argue that the regulations cannot be viewed as content-neutral, because they grant park managers a high degree of discretion to deny permits on the basis of content. The Court disagrees. Although the former and amended versions of Rule 16D-2.007 grant park managers the discretion to issue or deny permits, these rules set forth the specific, content-neutral criteria to be considered when the decision to issue or deny a permit is made. The Court finds no basis whatsoever for the plaintiffs' argument that the rules authorize park managers to deny permits based upon the content of the applicant's message. The mere fact that park managers are granted some discretion, to the extent that they must decide whether the rules' exceptions apply, has no bearing on the question of whether the rules themselves are content-neutral.
Similarly, the Court is unable to find any content censorship inherent in either former or amended Rule 16D-2.008. Former Rule 16D-2.008 prohibits the sale, advertisement, or display of any materials in the park. It also prohibits the use of park roadways or entry into the park for the purpose of advertising any products, services, events, political parties, religious institutions, or meetings; essentially, it prohibits advertisements of any kind. Finally, former Rule 16D-2.008 provides that no person shall make any display or exhibit of any kind or carry on any performance or do anything which will cause a number of persons to congregate to the interference or obstruction of vehicular or pedestrian traffic. Amended Rule 16D-2.008(1) prohibits the sale of any article or material within any state park unless authorized in accordance with the remainder of the rule, which outlines the procedure for establishing concession operations in state parks.
Although former Rule 16D-2.008 bans all advertisements, displays, sales, etc., the rule is completely neutral with respect to the item advertised, the nature of the display, or the type of product sold. Similarly, the restriction placed on sales by amended Rule 16D-2.008 lacks any reference to the type of *1567 product sold. Facially, these rules are certainly content-neutral.
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