195 F. Supp. 3d 1065
E.D. Mo.2016Background
- Plaintiffs Josephine Havlak Photographer, Inc. and Josephine Havlak are commercial portrait/wedding photographers who seek to photograph clients in Twin Oaks Park and challenged a Village ordinance (Ordinance No. 459) requiring permits for commercial uses of park property and charging a $100 permit fee.
- Ordinance No. 459 prohibits commercial use of park facilities without a permit, requires 48-hour or 14-day advance applications depending on size/duration, lists objective factors to be considered, and authorizes denial to prevent disruption, damage, congestion, or safety risks.
- Plaintiffs contend their commissioned photography is expressive conduct protected by the First Amendment and that the permit scheme is an unconstitutional prior restraint, content-based, vague, and imposes an improper fee and advance-notice burden that chills speech.
- Defendants (Village, Village Clerk, and County Police Chief) argue commercial photography is primarily commercial (not protected) or, if protected, the ordinance is content neutral, narrowly tailored to significant interests (safety, landscape protection, preventing congestion), and leaves ample alternatives (other parks or permits). The $100 fee is tied to policing costs.
- At an evidentiary hearing witnesses described conflicts in the park (multiple commercial shoots crowding the bridge area, use of props/equipment, safety risks, use of restrooms for changing), the Board’s decision process, and municipal comparators showing similar permitting practices and fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the photographers’ commissioned portraits are First Amendment protected expression | Havlak: commissioned photography is artistic expression with an audience and is protected | Village: primarily commercial, not communicative; if expressive, protection is limited | Court: assumed, without deciding, that activity could be protected but proceeded to evaluate ordinance under First Amendment standards |
| Whether Ordinance No. 459 is content-based or content-neutral | Havlak: treating commercial vs. amateur photographers is content- or viewpoint-based discrimination | Village: distinction based on manner/impact (equipment, crowding), not message; regulation is content-neutral | Held: ordinance is content-neutral; intermediate scrutiny applies |
| Whether the permit scheme is narrowly tailored and leaves ample alternatives | Havlak: not narrowly tailored, vague criteria, advance-notice and fee chill speech; Twin Oaks is uniquely valuable so alternatives inadequate | Village: tailored to prevent congestion, protect safety/landscape; objective criteria; other area parks and permit option are ample alternatives | Held: narrowly tailored to significant interests; objective standards suffice; alternatives exist (other parks or permits) |
| Whether the $100 fee and advance-notice requirements are constitutional | Havlak: fee and 48-hour/14-day notice are burdensome and not closely related to government costs | Village: fee relates to police/administrative costs; advance notice is reasonable given planned nature of shoots | Held: fee reasonably related to legitimate administrative/public-safety costs; advance-notice requirements are reasonable and constitutional |
Key Cases Cited
- Hurley v. Irish-Am. Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557 (1995) (First Amendment protects expressive conduct beyond words and does not require a narrow, articulable message)
- Kaplan v. California, 413 U.S. 115 (1973) (visual media such as photographs are within First Amendment protection)
- National Endowment for the Arts v. Finley, 524 U.S. 569 (1998) (artistic expression lies within First Amendment protection)
- City of Lakewood v. Plain Dealer Pub. Co., 486 U.S. 750 (1988) (sale of speech does not diminish First Amendment protection)
- Forsyth Cty. v. Nationalist Movement, 505 U.S. 123 (1992) (permit schemes are prior restraints and must meet constitutional limits)
- Thomas v. Chicago Park Dist., 534 U.S. 316 (2002) (municipal permit systems for park events are permissible to coordinate uses, protect safety and facilities)
- Ward v. Rock Against Racism, 491 U.S. 781 (1989) (content-neutral time, place, manner restrictions survive intermediate scrutiny if narrowly tailored to significant interests and leave ample alternatives)
- Reed v. Town of Gilbert, 576 U.S. 155 (2015) (distinguishes content-based from content-neutral laws; content-based laws trigger strict scrutiny)
- Cox v. New Hampshire, 312 U.S. 569 (1941) (permits regulating public assemblies to protect order and safety are valid)
- Kaahumanu v. Hawaii, 682 F.3d 789 (9th Cir. 2012) (upholding commercial-wedding permit scheme as constitutional and finding alternative channels for expression)