Douglas R. Parks v. Richard H. Finan; Ronald T. Keller; Kenneth L. Morckel; Lee A. Darden

*The Honorable W illiam W Schwarzer, United States District Judge
for the Northern District of California, sitting by designation.
1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0331P (6th Cir.)
File Name: 04a0331p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
DOUGLAS R. PARKS,
Plaintiff-Appellee,
v.
RICHARD H. FINAN; RONALD
T. KELLER; KENNETH L.
MORCKEL; LEE A. DARDEN,
Defendants-Appellants.
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No. 03-3848
Appeal from the United States District Court
for the Southern District of Ohio at Columbus.
No. 03-00094—Gregory L. Frost, District Judge.
Argued: March 16, 2004
Decided and Filed: September 29, 2004
Before: ROGERS and COOK, Circuit Judges;
SCHWARZER, District Judge.*
2 Parks v. Finan, et al. No. 03-3848
1The defendants are the CSRAB chairman, its executive director, and
various mem bers o f the Ohio State Highway Patrol. For convenience
when speaking of the defendant officials as litigants on this appeal, we
refer to them as CSRAB.
_________________
COUNSEL
ARGUED: Elise W. Porter, OFFICE OF THE ATTORNEY
GENERAL OF OHIO, Columbus, Ohio, for Appellants.
Nathan W. Kellum, Memphis, Tennessee, for Appellee.
ON BRIEF: Elise W. Porter, Tomi L. Dorris, OFFICE OF
THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio,
for Appellants. Nathan W. Kellum, Memphis, Tennessee, for
Appellee.
ROGERS, J., delivered the opinion of the court, in which
SCHWARZER, D. J., joined. COOK, J. (pp. 23-25),
delivered a separate dissenting opinion.
_________________
OPINION
_________________
ROGERS, Circuit Judge. On two separate occasions in
April 2002, Douglas Parks entered the grounds of the Ohio
state capitol and attempted to preach a Christian
message—the first time by preaching, the second time by
wearing a sandwich board and distributing leaflets. Both
times Ohio State Highway Patrol (“OSHP”) troopers
informed Parks that he was required to obtain a permit prior
to conducting these activities on the Capitol Square and asked
Parks to leave. After the second of these encounters, Parks
instituted this action in the district court, seeking an
injunction preventing the Capitol Square Review and
Advisory Board (“CSRAB”) and OSHP from enforcing the
permit requirement against him.1 The district court, finding

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No. 03-3848 Parks v. Finan, et al. 3
2In pertinent part, the regulation provides that “Capitol buildings or
grounds are available for use by the public for the purpose of
governmental business, public meetings for free discussion of public
questions, or for activities of a broad pub lic purpose, provided the
authorized procedure has been followed and appropriate approvals have
the permitting scheme deficient in many respects under the
First Amendment, permanently enjoined CSRAB from
enforcing the permitting scheme against individual speakers.
We construe the injunction to apply only to the application of
the permitting scheme to individuals who are not acting as
part of a group or in concert, and we affirm on grounds more
limited than those relied upon by the district court.
I
Ohio’s Capitol Square consists of the state capitol buildings
and the surrounding Capitol grounds, a ten-acre area bounded
on all sides by city streets. See Ohio Rev. Code Ann.
§ 105.41(L) (Anderson 2001) (amended 2002); Ohio Admin.
Code (OAC) § 128-4-01(B) (2001). Use of the grounds,
which are generally open to the public, is governed by state
regulations rather than by Columbus ordinances. See Ohio
Rev. Code Ann. § 105.41(E)(2). The Capitol grounds
includes the steps of the capitol itself, and all the area
bounded by the surrounding streets, including the walkways,
grassy areas, monuments and fountains contained therein.
OAC § 128-4-01(B). CSRAB has plenary control of Capitol
Square, and is empowered to promulgate rules and regulations
for the use of the square. See Ohio Rev. Code Ann.
§ 105.41(D)(3), (E).
CSRAB makes the square available for speeches and
public gatherings advocating various causes, both secular and
religious, but requires a permit as a prerequisite for those
activities. Although CSRAB issues the permits on a first-
come, first-served basis, it may deny permits if in its
discretion it finds that the planned activity fails to meet one
of five criteria.2 OAC § 128-4-02(A). In order to obtain a
4 Parks v. Finan, et al. No. 03-3848
been received, if such use:
(1) Does not interfere with the primary use of the capitol
buildings or gro unds;
(2) Is appropriate to the physical context of the capitol
buildings or gro unds;
(3) Do es not unduly burden the m anaging authority;
(4) Is not a hazard to the safety of the public o r state
employees; and
(5) Does not expose the state to the likelihood of expenses
and/or damages which cann ot be recovered .”
OA C § 128 -4-02(A).
permit, a person seeking to use the capitol grounds must
apply, in writing, to CSRAB anywhere from 15 to 180 days
prior to the planned event. OAC § 128-4-03(A). The
application must include, inter alia, the name, address and
telephone number of the person responsible for organizing the
event, and must be accompanied by a $20 fee “to cover the
administrative cost of issuing a permit.” OAC § 128-4-
03(A)(6), (C).
CSRAB reviews timely filed applications and issues a
response, generally granting the permit unless there is a
conflict for use of the space or the use threatens to violate the
restrictions of § 128-4-02(A). CSRAB may waive the
timeliness requirements “for good cause shown.” OAC
§ 128-4-03(A), (Q).
On April 11, 2002, Parks entered the capitol grounds,
positioned himself on a sidewalk near a plaque bearing the
Ohio state motto, “With God, All Things Are Possible,” and
began to preach. On the same day, an animal rights group
called Protect Our Earth’s Treasures (“POET”) staged a small
rally in the same area of Capitol Square, to call on Ohio’s
legislature to adopt an excise tax on meat. POET had a
permit to gather there, obtained with a waiver of the 15-day
waiting period because the legislature had taken up a tax
measure on short notice. Although Parks and the leader of the
POET rally were aware of each other’s presence, there is no

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No. 03-3848 Parks v. Finan, et al. 5
indication in the record that Parks’s preaching disrupted
POET’s activities. Nor did the permit indicate that POET had
the exclusive right to use any portion of Capitol Square.
Shortly after Parks began speaking, two uniformed OSHP
troopers approached him and asked him to present his permit.
Learning that Parks had none, the troopers told him that he
would have to leave. The supervising officer informed Parks
that a permit was required for speaking on the capitol
grounds, but he was free to speak on the perimeter sidewalks
without a permit. Parks, fearing arrest, complied with the
troopers’ request to leave.
He returned to Capitol Square on April 19, 2002. This time
instead of preaching he wore a sandwich board bearing
religious content and distributed leaflets with religious
messages. Again, Parks had not obtained a permit. Parks
testified in the district court that his religious beliefs preclude
him from obtaining a permit to preach. As Parks had no
permit, OSHP troopers again confronted him and asked him
to leave the area. The troopers told Parks that he would be
arrested and charged with criminal trespass if he remained.
Parks complied with the request and left the area.
On January 31, 2003, Parks filed suit in the district court
seeking a declaratory judgment and a permanent injunction
preventing CSRAB from enforcing its permitting scheme
against his activities. After conducting an evidentiary
hearing, the district court entered an order on June 4, 2003,
permanently enjoining CSRAB from enforcing the permitting
scheme “against individual speakers.” The district court
concluded that, in several respects, the permitting scheme was
not narrowly tailored to serve a significant government
interest.
The district court found that the Capitol Square area was a
public forum, but did not find it necessary to determine
whether the area was a “traditional public forum” or a
“designated public forum,” as the relevant constitutional tests
6 Parks v. Finan, et al. No. 03-3848
in the context of this case are the same. For five reasons, the
district court found that CSRAB’s permitting scheme was not
narrowly tailored to serve a significant government interest,
as required by the First Amendment.
First, the district court reasoned that the permitting scheme
lacked any meaningful time limit on the permitting process.
The district court considered the regulation requiring CSRAB
to act “without unreasonable delay” to be so vague as to
“impose[] no concrete period of time in which the CSRAB
must decide whether to issue a permit.” The lack of a definite
time period, in the district court’s view, created an
impermissible risk of the suppression of ideas, and this
concern was not allayed by the “first-come, first-served”
standard, inasmuch as the standard could be waived by
CSRAB.
Second, the district court concluded that the permitting
scheme granted CSRAB overly broad discretion to waive its
$20 permit fee. Although the district court noted that there
was no evidence of improper manipulation of the permit fee
to include or exclude certain speakers for content-based
reasons, it reasoned that the permitting scheme was flawed
nonetheless because there were no restrictions to permit
CSRAB from applying waivers to the permit fee for content-
biased reasons in the future. Moreover, the district court
concluded, CSRAB “failed to present a correlation between
the permit fee and the costs associated with the permit
scheme.”
Third, the district court reasoned that the permitting scheme
lacked precise standards to guide CSRAB’s discretion in
determining whether to grant or deny a permit to use Capitol
Square. According to the district court, the provision by
which CSRAB “reserves the right to regulate any conduct or
activity not appropriate or consistent with the use of the
capitol buildings or grounds, or which may cause damage to
state property” gives CSRAB discretion to exclude virtually

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No. 03-3848 Parks v. Finan, et al. 7
any activity without sufficient safeguards to prevent the
suppression of speech.
Fourth, the district court identified three problems with the
permitting scheme that implicated the Supreme Court’s
opinion in Watchtower Bible and Tract Society of New York,
Inc. v. Village of Stratton, 536 U.S. 150 (2002). The district
court noted first that the requirement that permit seekers
identify themselves on the permit application might deter
speakers who prefer to remain anonymous. The district court
also concluded that the permit scheme would chill a
substantial number of religious speakers who might opt to
remain silent rather than to ask the Government’s permission
to engage in evangelical activities. Also, the district court
reasoned that the permitting scheme eliminates a substantial
amount of spontaneous speech because the advance notice
requirement precludes the expression of speakers who wish to
express themselves at the moment the speech becomes ripe.
Fifth, the district court further concluded that the permitting
scheme was invalid in particular as applied to individual
speech. The district court reasoned that the scheme
proscribed more speech than was necessary to effectuate the
“laudable” and important government interests of
“preserv[ing] . . . the historical site, maintaining order and
safety, ensuring that adequate support services are available,
and maintaining the primary use of Ohio’s Statehouse to carry
out the business of state government . . . .” CSRAB,
according to the district court, does not “explain sufficiently
how requiring a lone individual to obtain a permit actually
targets the preservation of the grounds”:
the permit scheme labels those lone individuals with
something to say as dangerous, while failing to offer
what distinguishes them from other lone individuals who
traverse onto capitol grounds, for example, to enjoy their
lunch on the Statehouse steps. The distinctions—the
addition of a sign, a leaflet, or something to
say—become, in the words of the Ninth Circuit,
8 Parks v. Finan, et al. No. 03-3848
3CSRAB does not challenge the district court’s determination that the
Capitol grounds area at issue is a public forum, and the parties on appeal
make no issue of whether the area is a “traditional public forum” or a
“designated public forum .” The d istrict court found that its analysis did
not require that the distinction be made in this case, and our analysis as
well does not require that we make such a determination.
“absolutely empty in terms of the [regulation’s] stated
goals.” Grossman [v. City of Portland], 33 F.3d at 1207
. . . .
The district court concluded that the permit scheme
constituted an impermissible prior restraint on speech, a prior
restraint that was unconstitutional on its face with respect
individual speakers, and as applied to Parks. The district
court permanently enjoined the defendants from enforcing the
permit scheme against individual speakers. Defendants
appeal.
II
We affirm on the narrow ground upon which the district
court concluded its opinion, that the permitting scheme as it
presently exists is invalid with respect to individuals.3 The
injunction is limited to relief against enforcement of the
permitting scheme against individuals, and that is all that we
have before us. The district court expressly refrained from
enjoining continued application of the permit scheme “as it
pertains to groups,” and we take this limitation to extend to
individuals speaking as part of a previously coordinated or
organized effort to create a crowd. Much of the district
court’s rationale would appear to invalidate the permitting
scheme as applied to groups as well. We are largely
unpersuaded by the parts of the district court’s reasoning that
would logically invalidate the permitting scheme altogether.
Affirmance of the injunction that was actually entered by the
district court does not require us to make a definitive ruling
on those issues, and we therefore consider them only briefly.

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No. 03-3848 Parks v. Finan, et al. 9
The permitting scheme does not appear to vest
unconstitutional discretion in CSRAB to grant and deny
permits to engage in expressive activity on Capitol Square.
When a law predicates expressive activity on the prior
acquisition of a permit, the law must contain narrow and
precise standards to control the discretion of the permitting
authority. Forsyth County v. Nationalist Movement, 505 U.S.
123, 131 (1992). Section 128-4-02(A), with the possible
exception of subsection (3), contains clear and precise
standards which CSRAB can apply in making permitting
determinations.
The district court determined that the permitting scheme
grants CSRAB virtually unchecked discretion to deny permits
for content-based reasons. In support of this conclusion,
Parks isolates several terms in the regulation that he claims
would allow CSRAB to conceal favoritism or censorship in
making permit determinations. Most of the terms clearly
limit the decision-maker’s discretion. See City of Lakewood
v. Plain Dealer Publ’g. Co., 486 U.S. 750, 758 (1988)
(explaining that “[o]nly standards limiting the licensor’s
discretion will eliminate” danger of chilling protected
speech). There is no statute or regulation imaginable that
does not require some degree of interpretation by the agency
charged with its enforcement. The First Amendment requires
only that the regulation give the agency sufficient standards
to apply in determining whether to issue a permit. In our
view, the standards “appropriate to the physical context of the
capitol,” “hazard to the safety of the public,” and “expose the
state to the likelihood of [unrecoverable expenses],” are not
so vague as to engender content-based favoritism. Although
these terms do require CSRAB to evaluate whether an activity
conflicts with one of these provisions, these terms provide
CSRAB sufficient guidance to determine whether it would be
appropriate to deny a permit, and allow for effective judicial
review.
It is a closer question with respect to § 128-4-02(A)(3),
which allows CSRAB to deny a permit if an activity “unduly
10 Parks v. Finan, et al. No. 03-3848
burden[s] the managing authority.” Without a definition of
“undue burden,” or even an exemplary list of “burdensome”
activities, the provision arguably leaves it to CSRAB to
decide on any basis whether the burden of an activity on the
managing authority is undue. On the other hand, it is
reasonably clear that the provision addresses the concern that
some activities require extra public expenditures for sanitation
or police presence. A court reviewing a denial of a permit to
Parks could easily conclude that there was no undue burden
on the managing authority to permit him to speak. We leave
for another day the question of whether this provision
warrants invalidation of the permitting scheme with respect
to groups. It provides but a questionable basis for the order
in this case invalidating the permitting scheme with respect to
individuals like Parks.
The district court’s reliance on the waiver provision in
§ 128-4-02(I) as a basis for invalidating the permitting
scheme is also questionable. In this regard, Parks maintains
that the phrase “for good cause shown” allows CSRAB to
waive or refuse to waive the permit rules for virtually any
reason. Although he produced no evidence that CSRAB
granted waivers in an arbitrary or discriminatory fashion,
Parks maintains that the discretion contained in the provision
alone renders it unconstitutionally defective.
Because the waiver provision does not act as a restriction
on expressive activity, the discretion must be treated
differently from that contained in the bases for granting or
denying a permit. Even where discretion is broad, we would
generally not invalidate a waiver provision for overly broad
discretion unless and until there is a showing of “a pattern of
unlawful favoritism.” Thomas v. Chicago Park Dist., 534
U.S. 316, 325 (2002). To do otherwise would have the
unintended effect of restricting more speech because CSRAB
could not relax its permitting rules to increase access to the
forum. A rigid application of the permitting scheme would
prevent any group with an emergent need, or any speaker with
the inability to pay the permit fee, to use Capitol Square for

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No. 03-3848 Parks v. Finan, et al. 11
4The district court relied on another apparent scrivener’s error in
questioning the reasonability of the hours during which the grounds were
open. The court read the relevant regulation as limiting availability of the
capitol grounds to morning ho urs. The regulation did limit ava ilability to
the hours of “7 a.m. to 12:00 p.m.,” but “12 p.m.” was obviously
intended to mean mid night. T he regulation ha s since be en co rrected to
speech activities. It is undoubtedly preferable to allow some
flexibility in the name of increasing the exercise of protected
speech.
That is not to say that the exercise of discretion in granting
and denying waivers could not, in some instances, present
constitutional problems. When a permitting authority uses
waivers to promote preferred speakers or to inhibit disfavored
speakers, a court may invalidate the waiver scheme. See id.
In order to predicate a constitutional challenge to the waiver
provision based on the existence of discretion in the
regulatory scheme, a plaintiff would bear the burden of
establishing that the permitting authority used the waivers in
a discriminatory manner. Parks, however, produced no
evidence that CSRAB used its discretion to grant waivers to
preferred speakers, or deny waivers to disfavored speakers.
The district court also found unconstitutional vagueness in
the provision in the regulation that “[t]he board shall, without
reasonable delay, act upon the request [for a permit].” OAC
§ 128-4-03(B) (emphasis added). The district court found
that this phrasing precluded reasonable delay but not
unreasonable delay. The language in the regulation, however,
was obviously a scrivener’s error; the intent was undoubtedly
to require the board to take action without unreasonable
delay. See Griffin v. Oceanic Contractors, Inc., 458 U.S.
564, 571 (1982) (explaining that, where literal reading of
statute is obviously at odds with intentions of drafters, the
drafters’s intent must control). The regulation has since been
revised to correct the error. OAC § 128-4-03(B) (Anderson
2004). This part of the district court’s analysis does not
support the issuance of the injunction.4
12 Parks v. Finan, et al. No. 03-3848
read “seven a.m. to twelve midnight.” OAC § 128-4-02(D) (Anderson
2004).
III
The injunction is warranted, however, because application
of the permitting scheme to individuals like Parks, who may
be speaking, wearing signs, and/or leafletting,
unconstitutionally burdens free expression in violation of the
First Amendment. Two aspects of the permitting scheme lead
us to this conclusion.
First, the regulation by its ambiguity sweeps too broadly
with respect to when an individual must obtain a permit. The
language of the regulation does not literally prohibit activity
in the absence of a permit, but instead makes the Capitol
grounds
available for use by the public for the purpose of
governmental business, public meetings for free
discussion of public questions, or for activities of a broad
public purpose, provided the authorized procedure has
been followed and appropriate approvals have been
received, if such use [here follow the five conditions
discussed above].
OAC § 128-4-02(A) (emphasis added). The obvious negative
inference, assumed by the parties and the district court, is that
the grounds are unavailable for the named activities without
a permit. If we make the same assumption, then the
regulation prohibits the following activities without a permit:
(1) use for the purpose of governmental business, (2) “public
meetings for free discussion of public questions,” and
(3) “activities of broad public purpose.” The first two are
obviously not applicable to individuals like Parks: there is no
governmental business involved, and an individual speaker is
not a “meeting.” It follows that the regulatory basis for
telling Parks to stop his activities was that he was conducting

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No. 03-3848 Parks v. Finan, et al. 13
an “activity of broad public purpose” on the Capitol grounds
without a permit.
This ban is exceptionally broad, as demonstrated by the
facts of this case. When Parks first came to the Capitol
grounds, he was engaged in public declamation, apparently
directed at least in part to the POET crowd, and he was told
to stop. When he returned, a week later, he merely wore the
sandwich boards and handed out leaflets, but again he was
told to stop. It is certainly not clear from the record that
merely wearing the sandwich boards, without the leafletting,
would have been allowed without a permit. And it is hard to
see how wearing sandwich boards is in any relevant respect
different from wearing an expressive T-shirt or carrying an
expressive balloon. The permitting scheme, then, by the
breadth of the activity that to which it applies, raises serious
First Amendment concerns.
Second, we are instructed by the Supreme Court in
Watchtower Bible and Tract Society of New York, Inc. v.
Village of Stratton, 536 U.S. 150, 167 (2002), to give weight
to the concern that a permitting scheme will stifle
spontaneous expressive activity. In Watchtower, the Supreme
Court invalidated a village ordinance that required that door-
to-door canvassers obtain a prior permit from the mayor’s
office by completing and signing a registration form.
Applying the ordinance to all canvassers raised constitutional
concerns by virtue of the very breadth of the ordinance:
It is offensive—not only to the values protected by the
First Amendment, but to the very notion of a free
society—that in the context of everyday public discourse
a citizen must first inform the government of her desire
to speak to her neighbors and then obtain a permit to do
so. Even if the issuance of permits by the mayor’s office
is a ministerial task that is performed promptly and at no
cost to the applicant, a law requiring a permit to engage
in such speech constitutes a dramatic departure from our
national heritage and constitutional tradition.
14 Parks v. Finan, et al. No. 03-3848
536 U.S. at 165-66. While there are some important
differences between the permit scheme in this case and the
one at issue in Watchtower, one of the core reasons for
invalidating the latter clearly applies to the permit scheme in
this case as applied to individuals. That is, the permitting
scheme effectively bans spontaneous speech on the Capitol
grounds. The Supreme Court expressed this concern in
Watchtower in the following words:
there is a significant amount of spontaneous speech that
is effectively banned by the ordinance. A person who
made a decision on a holiday or a weekend to take an
active part in a political campaign could not begin to pass
out handbills until after he or she obtained the required
permit. Even a spontaneous decision to go across the
street and urge a neighbor to vote against the mayor
could not lawfully be implemented without first
obtaining the mayor’s permission.
536 U.S. at 167.
Similarly, under the CSRAB permit scheme, two friends
debating which candidate should be elected President in
November while walking across the Capitol grounds are
regulated by the permitting scheme, at least according to its
literal terms, but it is highly unlikely that these people would
continue their discussion if they knew a permit was required
to do so. The permitting scheme also constrains the heckler
who wishes to disagree with the expressive activity of a
permitted activity. A beef rancher out for a leisurely stroll
along Capitol Square who happened upon the POET
demonstration and wished to take on the protestors on the
issue of meat taxation would first need to obtain a permit to
carry on debate with POET. If the rancher were aware that a
permit were required to debate this issue, he might be more
likely to keep his mouth shut as he passed the demonstration.
In each of these hypothetical situations, not only would the
speakers need to pay $20 and obtain permits, but they would
either need to have done so fourteen days prior to speaking or

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No. 03-3848 Parks v. Finan, et al. 15
5CSRAB suggests that a lone Klansman conveying a racist message
on the Capitol grounds could lead to a disruptive disturbance. Something
more than the mere objectionab ility of the Klansman’s spe ech is
necessary, however, in o rder to warrant a restriction o n his exp ression.
W hether a speaker m ay be subjected to a permitting requirement must
turn on the time, place and manner of speech, and not the content of the
message or the likelihood that it will incite a response . Forsyth C oun ty,
505 U.S. at 134-35. If the Klansman example were enough to conclude
that the permit req uirement should be upheld in this case, then the
exam ple proves too much. After all, the mere presence of certain
controversial individuals might draw a crowd or incite a response, but that
fact could no t be a sufficient basis for requiring a permit for any
individual to enter a public forum.
to have shown good cause for obtaining a waiver of the
permit policy. The permit fee and the bureaucratic formalities
involved in obtaining a permit are likely to chill casual
speakers who would otherwise make statements on Capitol
Square but find that the benefit of expression is far
outweighed by the expense of applying for a permit. While
these examples may appear far-fetched, there is no apparent
way that the present regulation, applied as it has been, can
easily be read not to apply.
The permitting scheme is thus a substantially overbroad
restriction on individual speech. Although there may be some
types of situations in which the regulation could validly be
applied to individual speakers, such as if a famous rock singer
were to start performing or a Klansman were to start spouting
racist remarks,5 the permitting scheme sweeps a broad array
of ordinarily protected speech within its regulatory purview.
Indeed, it is close in its sweep to the Los Angeles Airport
(LAX) resolution that the Supreme Court found facially
unconstitutional in Board of Airport Commissioners v. Jews
for Jesus, Inc., 482 U.S. 569, 574-75 (1987). That resolution
stated that “any individual and/or entity [who] seeks to
engage in First Amendment activities within the Central
Terminal Area . . . shall be deemed to be acting in
contravention of the stated policy of the Board of Airport
Commissioners . . . .” 482 U.S. at 571. The Court reasoned:
16 Parks v. Finan, et al. No. 03-3848
6Parks invokes two other concerns raised by the Watchtower court:
the protection of those who choose to speak anonym ously and those who
would be chilled from speaking because of religious scruples against
seeking state permission to preach. In view of our reso lution of this
app eal, we need not decide whether these concerns weigh against the
CSRAB p ermitting schem e.
The resolution therefore does not merely reach the
activity of respondents at LAX; it prohibits even talking
and reading, or the wearing of campaign buttons or
symbolic clothing. Under such a sweeping ban, virtually
every individual who enters LAX may be found to
violate the resolution by engaging in some “First
Amendment activit[y].” We think it obvious that such a
ban cannot be justified even if LAX were a nonpublic
forum because no conceivable governmental interest
would justify such an absolute prohibition of speech.
Id. at 574-75. Under the sweeping ban of OAC § 128-4-02 on
“activities of a broad public purpose,” one could also read a
ban on “wearing of campaign buttons or symbolic clothing.”
Of course the CSRAB regulation, rather than prohibiting the
activity, only requires a prior permit, but the sweeping facial
effect is similar. When it comes to wearing a campaign
button or symbolic clothing, requiring a permit obtained 15
days ahead of time, at a cost of $20, is pretty close in its effect
to an outright prohibition.6
The CSRAB permit scheme is also not sufficiently
narrowly tailored. As the Court in Watchtower instructs,
breadth alone does not render a permitting scheme invalid.
536 U.S. at 168. It must also be determined whether the
scheme is narrowly tailored to the government’s interest. Id.
The Watchtower Court held that the ordinance in that case
was insufficiently tailored to be warranted by the city’s
legitimate interests in preventing fraud and crime, and in
protecting citizens’ privacy. In the instant case, CSRAB has
indeed identified important government interests supporting
the need for a permitting process. These include CSRAB’s

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No. 03-3848 Parks v. Finan, et al. 17
interests in protecting the physical condition of Capitol
Square, ensuring the safety of the public, and ensuring that
permitted speakers are able to engage effectively in
expressive activities. The permitting scheme as it is now
structured however restricts more expressive activity than is
necessary to accomplish those goals, and is not narrowly
tailored to meet these goals. Instead, the permitting scheme
regulates a significant amount of casual and spontaneous
speech that is unlikely to implicate these significant concerns.
In determining whether regulation of expressive activity is
narrowly tailored, we look to determine whether the
substantial government interest would be achieved less
effectively without the permitting scheme. Ward v. Rock
Against Racism, 491 U.S. 781, 799 (1989). Particular types
of individual activity that might cause damage, endanger
public safety, or interfere with other speakers, can be
governed just as effectively, if not more so, by regulations
prohibiting or limiting such actions directly, without
imposing the requirement that individuals wanting to speak or
carry a sign obtain a permit 15 days ahead of time. For
instance, the current regulatory limitations on permittees, if
not already binding on persons legally present without a
permit, could easily be extended to such persons. These
include limits on bringing structures or vehicles on the
grounds, attaching signs or banners to buildings, bringing
animals on the grounds, commercial solicitation, operating
concessions, possessing alcohol, or using sound
amplification. See OAC § 128-4-03(G)-(M). The blanket
application of the permitting scheme to individuals, in
contrast, is not sufficiently narrowly tailored to the interests
of protecting property, promoting safety, and permitting
others to speak.
In Ward, the Supreme Court held that narrow tailoring did
not require the least restrictive means of serving legitimate
government interests, but that narrow tailoring is satisfied as
long as the regulation promotes a substantial government
interest that would be achieved less effectively absent the
18 Parks v. Finan, et al. No. 03-3848
regulation. 491 U.S. at 798-99. In upholding a requirement
that New York City’s sound technician control the mixing
board during rock concert performances, the Court in Ward
distinguished a total ban on handbills as follows:
The guideline does not ban all concerts, or even all rock
concerts, but instead focuses on the source of the evils
the city seeks to eliminate—excessive and inadequate
sound amplification—and eliminates them without at the
same time banning or significantly restricting a
substantial quantity of speech that does not create the
same evils. This is the essence of narrow tailoring. A ban
on handbilling, of course, would suppress a great
quantity of speech that does not cause the evils that it
seeks to eliminate, whether they be fraud, crime, litter,
traffic congestion, or noise. See Martin v. Struthers, 319
U.S. 141, 145-146 (1943). For that reason, a complete
ban on handbilling would be substantially broader than
necessary to achieve the interests justifying it.
491 U.S. at 799 n.7. This case is closer to the handbill ban
than to the regulation upheld in Ward.
CSRAB also asserts that the permitting process is necessary
to regulate competing uses of the grounds and protect the free
speech rights of those who use the process to obtain access to
the grounds. Relying on our decision in Sistrunk v. City of
Strongsville, 99 F.3d 194 (6th Cir. 1996), CSRAB maintains
that the permitting scheme enables it to “enhance” free speech
rights by limiting the use of areas on the capitol grounds to
one permitted group, thereby amplifying the message of that
group. In Sistrunk, we found no First Amendment violation
when an official for the Bush-Quayle ’92 campaign
confiscated a button advocating the opposing candidate from
a young woman seeking admission to a rally for the Bush-
Quayle campaign conducted in a public park. Id. at 196.
Sistrunk makes clear that the First Amendment “does not
prohibit the [government] from issuing permits to groups

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No. 03-3848 Parks v. Finan, et al. 19
seeking to make exclusive use of the Commons for expressive
activity during a limited period of time.” Id. at 198.
Sistrunk is distinguishable in two important ways. First,
this is not a situation where one organization has been given
an exclusive permit to use grounds for a limited period. In
Sistrunk, the permit specifically provided that the use of the
grounds was limited to the members of the permittee
organization and their invitees. Id. at 196. The campaign
committee had its own First Amendment interest in
controlling who could attend its rally and what could be said
there. See Hurley v. Irish-American Gay, Lesbian and
Bisexual Group of Boston, Inc., 515 U.S. 557, 573-74 (1995)
(holding that organizers of Boston’s St. Patrick’s Day-
Evacuation Day Parade had First Amendment interest in
excluding marchers with messages that organizers chose not
to convey). In contrast, the record does not show that POET
was granted an exclusive permit to use a portion of the
grounds, or that Parks was in that exclusive area, or indeed
that POET objected to Parks’s presence.
Second, in the instant case there is a greater level of
governmental involvement in the filtration of inconsistent
messages than in Sistrunk. In Sistrunk, while the government
granted the permitted organization the power to make
exclusive use of the park, the government itself did not sort
out “discordant speakers” whose messages were inconsistent
with the theme of the demonstration. In the instant case, state
troopers determined that Parks’s activities were inconsistent
with the permitted use. Although the government may have
the power to grant permits for speakers to use public lands,
and the speakers have First Amendment rights to exclude
others whose messages are conflicting or inconsistent, that
does not permit a governmental authority to determine which
messages are discordant and to excise those messages to
ensure the clarity of the permitted speaker’s message.
If Parks tried to interpose himself in POET’s rally so that
he appeared to be a participant in that rally, and he
20 Parks v. Finan, et al. No. 03-3848
complained that a member of POET asked him to leave,
perhaps Sistrunk would have some application in this case.
Here, however, Parks happened to be standing in the general
vicinity of POET’s demonstration, but made no attempt to
appear affiliated with it. There is no indication in the record
that Parks disrupted POET’s rally or that the POET
organizers felt that Parks’s presence imposed upon the
protest. Moreover, there is no indication that there was any
permitted use on April 19 when OSHP troopers asked Parks
to leave Capitol Square because he was wearing sandwich
boards and handing out leaflets. CSRAB cannot avail itself
of Sistrunk with regard to that incident.
This case is also different from our well-reasoned, albeit
unpublished, decision in Spingola v. Village of Granville,
2002 WL 1491874 (6th Cir., July 11, 2002). In that case, for
the duration of an assemblage permit issued to the Granville
Kiwanis Club to hold a Fourth of July celebration on a
portion of the village streets, a village ordinance provided that
Granville could designate within the assemblage area a public
speaking area. We upheld the ordinance’s prohibition of
“public speaking designed to gather crowds” in the
assemblage area outside of the designated public speaking
area. We reasoned that the village had a significant interest
in crowd control, and that the interest would be less
effectively achieved without the ordinance because preventing
uncontrolled public speaking “provid[ed] a smoother flow of
traffic within the festival crowd.” Spingola involved two
factors different from the instant case. First, the ordinance
applied during the limited-duration grant of a permit to
another private party to use a portion of the public streets.
Second, the ordinance was specific in the expressive activity
that was isolated—“public speaking designed to gather
crowds”—activity that, so tailored, had a direct impact on the
village’s interest in crowd control. In contrast, the CSRAB
prohibition on “activities of a broad public purpose,”
extending as it does to the mere wearing of a sign and
handing out of leaflets, cannot be considered narrowly
tailored to the interests CSRAB has identified.

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No. 03-3848 Parks v. Finan, et al. 21
7CSRAB has not argued , in light of the absence of a certified class,
that the district court’s order should have enjoined enforcement of the
permitting schem e against Parks only, and no t against other individuals
The CSRAB permitting scheme as enforced against
individuals thus is not narrowly tailored to a significant
government interest, and this conclusion is sufficient to
uphold the district court’s injunction. We therefore need not
reach the additional requirement that ample alternative
channels be left open for communication.
In concluding, we emphasize the limited nature of our
holding. The injunction does not preclude the enforcement of
the present permitting scheme to groups. The injunction is
expressly limited to individuals. We interpret this limitation
to allow application of the permit requirement to gatherings
of multiple persons by previous publicity or pre-arranged
coordination. We need not decide at this time the
constitutionality of applying the permitting scheme to such
gatherings.
In addition, the injunction does not prevent CSRAB from
modifying its regulations to require a prior permit for certain
types of individual conduct, albeit expressive, that may more
directly implicate concerns of public order or safety. We
have been advised during our consideration of this case, for
instance, that a gentleman was considering parachuting onto
the Capitol grounds. Nothing prevents the CSRAB from
requiring a permit for such a stunt. And as our discussion of
Spingola demonstrates, the injunction does not prohibit
CSRAB from modifying its regulations to require a permit for
public speaking that is designed to gather an audience,
although we certainly do not decide the validity of such a
hypothetical CSRAB rule today. We note only that a
modification of the regulation to require a permit for such
individual activities would not run afoul of the district court’s
injunction, which by its terms extends only to enforcement of
the regulation “presently set forth” in OAC § 128-4.7
22 Parks v. Finan, et al. No. 03-3848
who are not parties. Accordingly, we do not reach that issue.
For the foregoing reasons, the judgment of the district court
is AFFIRMED.

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No. 03-3848 Parks v. Finan, et al. 23
_______________
DISSENT
_______________
COOK, Circuit Judge, dissenting. Because I disagree with
the majority’s conclusion that CSRAB’s regulations are
vague, overbroad or not narrowly tailored, I respectfully
dissent.
First, CSRAB’s permitting scheme is not a “ban.” It does
not prohibit speech; it merely regulates the time, place, and
manner of speaking to accommodate the government’s
interest in maintaining the Capitol grounds. Such regulations
are valid “provided the restrictions [of protected speech] are
‘justified without reference to the content of the regulated
speech, that they are narrowly tailored to serve a significant
governmental interest, and that they leave open ample
alternative channels for communication of the information.’”
Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
(quoting Clark v. Community for Creative Non-Violence, 468
U.S. 288, 293 (1984)). CSRAB’s regulations satisfy all three
criteria.
That CSRAB’s regulations are content-neutral and leave
available ample alternative channels of communication is not
in dispute. And contrary to the majority’s conclusion, the
regulations are narrowly tailored because they “promote[] a
substantial government interest that would be achieved less
effectively absent the regulation.” Ward, 491 U.S. at 799. In
Thomas v. Chicago Park District, the Supreme Court upheld
a permit system that, like the one here, enabled the
government “to coordinate multiple uses of limited space, to
assure preservation of the park facilities, to prevent uses that
are dangerous, unlawful, or impermissible under the Park
District’s rules, and to assure financial accountability for
damage caused by the event.” 534 U.S. 316, 322 (2002).
24 Parks v. Finan, et al. No. 03-3848
Although the permit scheme in Thomas could be considered
more narrowly tailored than CSRAB’s policy, the fact that
this court can imagine regulations that would be more closely
tailored to achieving CSRAB’s goals does not mean that
CSRAB’s scheme is unconstitutional—“[the Supreme
Court’s] cases quite clearly hold that restrictions on the time,
place, or manner of protected speech are not invalid simply
because there is some imaginable alternative that might be
less burdensome on speech.” Ward, 491 U.S. at 797 (internal
quotation marks omitted). CSRAB’s interests in preserving
the Capitol grounds and maintaining order and safety are
substantial, and they would be achieved less effectively if
individual speakers were not required to comply with the
permitting regulations.
Additionally, I disagree with the majority’s conclusion that
the phrase “for broad public purpose” is so vague as to render
the regulations facially unconstitutional. The regulations
applied to Parks’s conduct because he was preaching and
distributing leaflets to the public. If someone were “wearing
an expressive T-shirt or carrying an expressive balloon” and
also standing on the Capitol grounds in an effort to
communicate with the public, then her conduct would
likewise require a permit. The majority’s statement that it is
affirming the district court’s injunction only with respect to
individuals, but not with respect to individuals “speaking as
part of . . . [an] organized effort to create a crowd,” implicitly
recognizes that valid, non-vague regulations can draw
distinctions based on speakers’ different purposes. The
majority draws a somewhat different distinction than CSRAB
has drawn—the majority’s opinion requires two or three
individuals organized for the purpose of creating a crowd, but
not two or three individuals who just happen to show up on
the Capitol Square at the same time, to obtain permits—but
under both the majority’s opinion and CSRAB’s regulations,
whether a speaker must obtain a permit depends upon the
speaker’s purpose.

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No. 03-3848 Parks v. Finan, et al. 25
I also disagree that the regulations are overbroad. The
regulations are not overbroad because they do not prohibit
any constitutionally protected speech, much less the
“substantial amount” of protected speech that would justify a
finding of facial invalidity. See Kreimer v. Bureau of Police,
958 F.2d 1242, 1265 (3d Cir. 1992) (“[T]he doctrine of
overbreadth is appropriately applied in a facial challenge only
where ‘the enactment reaches a substantial amount of
constitutionally protected conduct. If it does not, then the
overbreadth challenge must fail’” (quoting Village of
Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
489, 494 (1982))); accord Ward v. Rock Against Racism, 491
U.S. 781, 799 (1989); Bd. of Airport Comm’rs of City of Los
Angeles v. Jews for Jesus, Inc., 482 U.S. 569, 574 (1987).
Rather than proscribing speech, the regulations establish a
permitting scheme that applies only to speakers using Capitol
Square for “activities of a broad public purpose.” Ironically,
the majority reads this phrase as prohibiting virtually all
speech—equating it with the Los Angeles International
Airport’s “First Amendment Free Zone”—but the phrase
instead constrains the reach of the permitting scheme. The
majority’s hypothetical T-shirt wearers or balloon carriers
might fall within the ambit of the permitting scheme, but only
if the purpose of their activity on Capitol Square were broadly
public. And nothing in the record suggests that the
regulations would apply to “two friends debating which
candidate should be elected President in November while
walking across the Capitol grounds,” because these speakers
would be engaged in a private conversation rather than an
activity of broad public purpose. For the same reason, the
majority’s concerns about stifling spontaneous speech are
unfounded. As for the rancher who might want to stop and
“debate” with the members of POET, nothing in the First
Amendment grants a would-be heckler the right to disrupt the
message of other speakers.
For the foregoing reasons, I respectfully dissent.

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