Josephine Havlak Photographer, Inc. v. Village of Twin Oaks
2017 U.S. App. LEXIS 13542
| 8th Cir. | 2017Background
- Village of Twin Oaks (pop. ~400) adopted an ordinance banning commercial activity in its 11-acre public park; later amended to create a permit scheme for commercial uses with a $100 fee.
- Permit rules: automatic approval for events <1 hour, <10 people, with 48-hour notice; larger events require 14-day notice and Board review; fees fund police/detail costs.
- Commercial photographers (including wedding and senior portraits) increasingly used the park, causing congestion, competing for locations, dressing in restrooms, and safety concerns (e.g., photos on a bridge with fall risk).
- Photographer Josephine Havlak sued the Village for declaratory and injunctive relief, claiming the ordinance violated her First Amendment free-speech rights; she had used the park twice and never applied for a permit.
- The district court denied relief; the Eighth Circuit reviewed facial and as-applied First Amendment challenges, focusing on time, place, and manner analysis and whether the permit scheme was content neutral, narrowly tailored, left ample alternatives, and avoided unbridled discretion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Havlak can press a facial overbreadth challenge | Ordinance is overbroad because it burdens commercial speech and could chill others | No evidence of substantial unconstitutional applications beyond Havlak; challenge is speculative | Court declined facial overbreadth review and limited analysis to as-applied challenge |
| Whether the permit scheme is content-based (requiring strict scrutiny) | Ordinance targets commercial photographers (speaker-based) and thus reflects content/speaker discrimination | Ordinance is facially content neutral and enacted for safety/resource allocation, not message suppression | Ordinance is content neutral; intermediate scrutiny applies |
| Whether the ordinance is narrowly tailored to significant governmental interests | Requirements (permit for small groups, park‑wide coverage, advance notice, $100 fee) are broader than necessary and chill expression | Regulations address congestion, safety, resource allocation; fee correlates with officer cost; advance notice is reasonable | As-applied to Havlak, the scheme is narrowly tailored to legitimate interests |
| Whether the permit scheme gives unbridled licensing discretion or denies ample alternatives | Vague standards invite arbitrary denials; park is unique so alternatives are insufficient | Ordinance lists objective factors, guarantees approval for small events, and other comparable locations exist | Licensing standards are sufficiently definite; ample alternative channels exist; regulation survives First Amendment challenge |
Key Cases Cited
- Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (time, place, manner test for permit schemes)
- Ward v. Rock Against Racism, 491 U.S. 781 (content neutrality, narrow tailoring, ample alternatives test)
- Reed v. Town of Gilbert, 135 S. Ct. 2218 (content-based restrictions and speaker-based distinctions)
- Sorrell v. IMS Health Inc., 564 U.S. 552 (speaker- and content-based law analysis)
- Heffron v. Int’l Soc’y for Krishna Consciousness, 452 U.S. 640 (state interest in safety and convenience in public forums)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (permitting scheme to coordinate multiple uses of limited park space)
- United States v. Stevens, 559 U.S. 460 (overbreadth doctrine standards)
- Jacobsen v. Howard, 109 F.3d 1268 (8th Cir.) (standing/realistic danger for facial overbreadth)
- Excalibur Grp., Inc. v. City of Minneapolis, 116 F.3d 1216 (8th Cir.) (overbreadth review standards)