Plaza Can Be Temporarily Closed for Construction, Without Violating First Amendment

From Mytych v. National Park Service, decided Thursday by Judge Trevor McFadden (D.D.C.):

David Mytych helps run a volunteer nonprofit called FLARE USA{, a volunteer nonprofit organization committed to political expression and advocacy about authoritarianism, impeachment, and constitutional accountability}. For months, FLARE maintained a demonstration [in Columbus Plaza] outside Union Station in Washington, D.C., to express its views on various political issues. FLARE had a National Park Service (“NPS”) permit to do so. {FLARE picked Columbus Plaza for its position as the “main pedestrian gateway between Union Station and the United States Capitol” ….} But toward the year’s end, NPS told Mytych and FLARE that a construction project required the demonstration to move to a nearby park….

The First Amendment ensures “that members of the public retain strong free speech rights when they venture into public streets and parks.” These areas are traditional public fora, meaning they “occupy a special position in terms of First Amendment protection because of their historic role as sites for discussion and debate.” …

That said, … [c]ourts endorse [content-neutral] time, place, and manner restrictions [on speech in traditional public fora] to address a variety of significant governmental interests.

Take the government’s interest in crowd control. Because “two parades cannot march on the same street simultaneously, [the] government may allow only one.” The government also has an interest in traffic safety. This means demonstrators cannot, “contrary to traffic regulations, insist upon a street meeting” on a busy road at “rush hour as a form of freedom of speech or assembly.” And the government has an interest in land preservation. That is why “[p]rotecting and properly managing park lands are undoubtedly significant governmental interests” that, for instance, allow permit requirements for filmmakers using those lands. All these examples involve “reasonable” regulations to meet “legitimate” aims, unrelated to the relevant activity’s “message.”

The same is true here. NPS reasonably limited Columbus Plaza activity for legitimate reasons, unrelated to Mytych’s speech, or anyone else’s. Its public closure notice from early December shows as much. There, NPS warned of “a temporary closure of Columbus Circle” for “the renovation of the fountain, cleaning of the statues, plaza and turf renovations to the park site.” The notice described the closure as “necessary to provide for public health and safety, protect scenic values and cultural resources, implement management responsibilities, and avoid conflict among visitor use activities during the renovation of the park.”

Nowhere in that explanation did NPS mention details about expressive activity, much less about Mytych’s specifically. It referred to “demonstration activity” only to assure that “comparable” spaces would serve those needs during construction. Between its park management concerns and health and safety concerns, then, no question remains that NPS has a “legitimate” government interest in Columbus Park upkeep.

And NPS addressed those interests through reasonable, “narrowly tailored” means. Its notice indicates that NPS restricted use of Columbus Plaza no more than necessary. NPS expressly “considered” more “limited closures,” yet determined that none would “suffice” to protect “public safety” based on contractors’ advice.

NPS instead offered “ample alternative channels for communication.” Its notice stated that “nearby park areas [would] remain open to the public.” … [S]hortly after issuing notices, NPS gave FLARE a permit to demonstrate in a different park. The notice also promised that, upon “completion of the project,” the park would return to use for “future permitted events.”

Though Mytych hints that NPS had ulterior motives, see Compl. ¶ 44 (describing NPS’s “alleged[ ]” construction plans), he supplies no facts to support this theory. Indeed, NPS appears to have started construction, and Mytych does not argue otherwise. See Nersesian Decl. ¶¶ 19, 22. Nothing else in the pleadings suggests NPS’s rules have been “administered otherwise than in [a] fair and non-discriminatory manner.” This means the NPS acted without offending the First Amendment….

Dimitar Georgiev and David S. Bettwy represent defendants.

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