IN THE UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF ARKANSAS
HOT SPRINGS DIVISION

PLAINTIFF

UNITED STATES OF AMERICA

VS.

DEFENDANT

CHRIS BURCH

CRIMINAL NO. 99-A226584 WA-33

MEMORANDUM OF LAW IN SUPPORT OF MOTION TO DISMISS
Pursuant to Federal Rule of Criminal Procedure 29 Chris Burch files this Memorandum of Law in support of his Motion to Dismiss.

STATEMENT OF FACTS
The evidence will show the following facts relevant to the charge against Defendant:
On July 4, 1999, Independence Day, Chris Burch and a number of other people walked through the Joplin Recreation Area on Lake Ouachita and distributed a flyer announcing a public meeting on July 21, 1999. Since 1997, Burch has biked, hiked and bird watched in the park. The park is open to the public and is administered by the U.S. Army Corp of Engineers. It has a beach for swimming, places for picnicking and camping and paved roads.

The flyer Burch handed out informed the public that a meeting was going to be held to discuss the development of public lands on Lake Ouachita through a proposed lease expansion program by the Corp of Engineers. The flyer opposed the lease expansion program because hundreds of acres were proposed for lease to Mountain Harbor Resort for private development. It was feared that this private development would destroy the animal habitat around the lake. The flyer also noted the small amount of money that would be paid by Mountain Harbor Resort to lease the property.

Burch handed the flyer out to anyone who was willing to accept it, including the campers, hikers, walkers, etc. Burch was approached by a Park Ranger who asked that he stop handing out the flyers. Burch informed the Ranger that he thought he had a First Amendment Right to hand out the flyers. The Ranger left and later a state trooper appeared and cited Burch for violation of the rules and regulations regarding public use of Corp of Engineers projects.

The State Trooper and/or Park Ranger called Burch’s attention to 36 C.F.R. 372.17 which reads as follows:

Advertising by the use of bill boards, signs, markers, audio devices, hand bills, circulars, posters or any other means whatsoever, is prohibited without written permission of the District Engineer.

Burch was issued a citation under 36 C.F.R. 372.24(b) for failure to comply with a lawful order issued by a federal employee acting pursuant to the regulations. The order which Burch failed to comply with was the order to stop distributing the leaflets. After Burch was cited, he applied for a permit to distribute literature on the U.S. Army Corps of Engineers property. His request was “temporarily disapproved” because the park manager said that he needed time to develop reasonable “time, place and manner” restrictions on the distribution of literature in the public use areas. Those “rules” weren’t completed until August 26, 1999. At the time Burch was cited there were no time, place or manner restrictions.

ARGUMENT

I. The Code of Federal Regulation at Issue in this Case Does not Apply to Burch’s Activities.

The regulation cited above only requires one to secure a permit if he is to “advertise” within the park. Burch was not advertising. Nothing Burch was doing was for commercial gain. Therefore, the regulation which Burch allegedly failed to comply with does not apply to his activities.

II. The Code of Federal Regulation at Issue in this Case is an Unconstitutional Prior Restraint on Free Speech.

“Generally, speakers need not obtain a license to speak.” Riley v. National Federation of the Blind, 487 U.S. 781, 801 (1987). Permit schemes – requiring advanced governmental licensing of political expression and having the potential for excluding legitimate speakers from the public forum – have long been recognized as prior restraints with “a heavy presumption against [their] constitutionality.” FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 225 (1990); See also Shuttlesworth v. Birmingham, 394 U.S. 147, 150-51 (1969). Grossman v. City of Portland, 33 Fed. 3d 1200 (9th Cir. 1994)(City ordinance was unconstitutional which required a permit in order to participate in an organized demonstration or gathering in a public park.)

The Supreme Court has twice concluded that permit requirements for individuals seeking to pass out literature on a public street are per se unconstitutional. Lovell v. City of Griffin, 303 U.S. 444 (1937); Schneider v. State, 308 U.S. 147, 163-65 (1939). In Lovell, a city promulgated an ordinance which prohibited the distribution of literature “at any time, at any place, and in any manner without a permit from the City Manager.” 303 U.S. at 451. The defendant did not apply for a permit, distributed literature in a public area and was convicted of a violation of the ordinance. The Court, through Chief Justice Hughes, wasted no time in concluding that the requirement of a permit to distribute fliers in a public area was “void on its face” noting that the “struggle for freedom of the press was primarily directed against the power of the licensor.” Id.

Similarly, Schneider involved an ordinance that forced citizens to obtain a permit from a police officer before they could canvass door-to-door. Concluding that the defendant could “not be punished for acting without a permit,” the Court reasoned “[T]o require a censorship through license which makes impossible the free and unhampered distribution of pamphlets strikes at the very heart of the constitutional guarantees.” 308 U.S. at 163-65.

The regulation in this case contains no time, manner or place restrictions. The regulation in this case gives the District Engineer unbridled discretion to issue or not issue a permit. It is this prior restraint which the First Amendment abhors:

. . . The mere existence of the licensor’s unfettered discretion, coupled with the power of prior restraint, intimidates parties into censoring their own speech, even if the discretion and power are never actually abused.

Lakewood v. Plain Dealer Publishing Company, 486 U.S. 750, 758 (1998). In the Lakewood case the Supreme Court found unconstitutional a city ordinance which gave the mayor power to grant or deny permits for the placement of news racks on public property. The ordinance gave the mayor unfettered discretion to deny a permit application and unbounded authority to condition a permit on any additional terms he deemed necessary. There were no time, place or manner restrictions. At the time Burch was cited, the regulation gave the District Engineer unfettered discretion to issue or deny a permit. There were no time, place or manner criteria connected with the regulation. Acorn v. Tulsa, 835 Fed. 2d 735 (10th Cir. 1987)(Ordinance which requires a permit but does not include clear guidelines for the official who decides whether or not to issue the license is unconstitutional.) See also United States v. Kistner, 68 Fed. 3d 218 (8th Cir. 1995) (A park regulation sets out the time periods and locations for distribution and prohibits harassing park visitors it satisfies the reasonable time, place and manner restrictions on First Amendment activities.)

The regulation under which Burch was required to secure a permit before distributing literature was unconstitutional. This citation issued to Burch was based on his failure to comply with an order to cease distributing literature because he did not have a permit. Therefore, the case against Burch should be dismissed.

Respectfully submitted,

MITCHELL, BLACKSTOCK, BARNES,
WAGONER & IVERS
1010 West Third Street
P. O. Box 1510
Little Rock, AR 72201-1510