The plaintiff, Jonathan Doyle, appeals an order of the Superior Court (Smukler, J.) granting summary judgment to the defendants, the Commissioner of the New Hampshire Department of Resources and Economic Development and the Monadnock State Park Manager (collectively, DRED), and denying Doyle’s motion for summary judgment. We reverse and remand.
The record supports the following facts. Mount Monadnock is a 3,165-foot mountain within Monadnock State Park, which is owned and managed by DRED. With 100-mile views to points in all six New England states, Mount Monadnock is said to be the second most climbed mountain in the world. Aside from hiking the mountain, visitors to Monadnock State Park may camp, picnic, Nordic ski and snowshoe. Mount Monadnock has been designated a National Natural Landmark.
On September 6,2009, Doyle decided to film himself dressed as “Bigfoot” on Mount Monadnock. Bigfoot, also known as Sasquatch, is “a large, hairy humanlike creature believed by some persons to exist in the northwestern United States and western Canada.” 10 The New Encyclopedia Britannica 464 (15th ed. 2010). “The British explorer David Thompson is sometimes credited with the first discovery (in 1811) of a set of Sasquatch footprints . . . .” Id. Since then, “[v]isual sightings and even alleged photographs and filmings (notably by Roger Patterson at Bluff Creek,
To execute his planned filming of Bigfoot, Doyle purchased a costume resembling an ape and then climbed the mountain with his girlfriend. At the top, he put on the Bigfoot costume and filmed conversations he had with other hikers. After about twenty minutes, he removed the costume and descended the mountain. On his way down, he encountered two park staff members, and persuaded them to write a note saying there had been a “Bigfoot sighting” on the mountain. The staff members later said they were just playing along with what they thought was a college project. After leaving the park, Doyle went to both the local police station and State Police in Keene to tell them that there had been a Bigfoot sighting on Mount Monadnock.
Pleased that his Bigfoot hoax resulted in hikers “interacting, laughing, and coming together as a community,” Doyle decided to stage another Bigfoot event on the mountain. To raise awareness of his next appearance, he had a friend interview him about the first event and write a press release, which Doyle gave to the Keene Sentinel. The newspaper printed a story that said Doyle would again climb the mountain dressed as Bigfoot. Doyle also promoted this upcoming appearance on his website.
On September 17, 2009, the Monadnock State Park Manager, Patrick Hummel, sent an email to his supervisor, Brian Warburton, informing him of Doyle’s activities. Hummel said that Doyle “never ran anything by [him].” He expressed annoyance over the fact that newspapers had called him to ask whether the Bigfoot story was legitimate. He also told Warburton that the Bigfoot party would soon return, and because he believed they had “stepped over the line” he would intercept them prior to their ascent.
On September 19, 2009, Doyle and five others returned to Mount Monadnock to stage another Bigfoot filming. They hiked up to the Halfway House, a trail junction, and prepared to perform. Doyle and two of his friends remained in plain clothes, while the others dressed up as Bigfoot, Yoda and a pirate. Doyle filmed a few scenes and interviewed passing hikers. Additionally, several people stopped to watch them filming.
Shortly thereafter, Hummel approached Doyle and asked him whether he had a special-use permit. Doyle said he did not, and Hummel told him that he had to leave the mountain. Doyle and his friends complied.
Under New Hampshire Administrative Rule, Res 7306.01(a), a person must obtain a special-use permit to use DRED properties for “[h]olding organized or special events which go beyond routine recreational activities.” To obtain a permit, the applicant must apply for the permit at least thirty days prior to the event, pay a $100 fee and obtain a $2,000,000 insurance
Doyle subsequently brought a declaratory judgment action against DRED, arguing that Res 7306.01(a) violates the right to free speech contained in both Part I, Article 22 of the New Hampshire Constitution and the First Amendment to the United States Constitution. Doyle also sought a permanent injunction, nominal damages, costs and fees. The trial court granted summary judgment in favor of DRED, ruling that Doyle failed to show that Res 7306.01(a) “is unconstitutional either facially or as applied.” On appeal, Doyle argues the trial court erred because Res 7306.01(a) is void for vagueness, overbroad on its face and not narrowly tailored, and also overbroad as applied to Doyle’s small-scale project.
I. Analysis
Part I, Article 22 of our State Constitution provides: “Free speech and liberty of the press are essential to the security of freedom in a state: They ought, therefore, to be inviolably preserved.” N.H. CONST, pt. I, art. 22. Similarly, the First Amendment to the United States Constitution prevents the passage of laws “abridging the freedom of speech.” U.S. CONST, amend. I. It applies to the states through the Fourteenth Amendment to the United States Constitution. Lovell v. Griffin,
We first address Doyle’s claims under our State Constitution, State v. Ball,
The speech at issue here is unquestionably protected under our State Constitution. Even though Doyle’s activities may have been nothing more than a playful hoax, “[w]holly neutral futilities . . . come under the protection of free speech as fully as do Keats’ poems or Donne’s sermons.” United States v. Stevens,
We first address Doyle’s facial challenge. See State v. Hynes,
To determine whether a substantial number of a regulation’s applications are unconstitutional, we must scrutinize it under the applicable constitutional standard. As the Supreme Court has explained, “the standards by which limitations on speech must be evaluated differ depending on the character of the property.” Frisby v. Schultz,
Government property generally falls into three categories — traditional public forums, designated public forums and limited public forums. Pleasant Grove City v. Summum,
A designated public forum is government property “that the State has opened for expressive activity by part or all of the public.” International Soc. for Krishna Consciousness, Inc. v. Lee,
Finally, a limited public forum is government property “limited to use by certain groups or dedicated solely to the discussion of certain subjects.” Summum,
During the superior court proceedings, DRED repeatedly asserted that Mount Monadnock is a traditional public forum. The trial court premised its ruling on DRED’s representation, and Doyle relied on it. Operating on this assumption, neither party addressed the issue on appeal. We requested
We have long held that “we will not consider issues raised on appeal that were not presented in the lower court.” LaMontagne Builders v. Brooks,
It is at least arguable that the trial court here reached the correct result based upon the mistaken conclusion that Mount Monadnock is a traditional public forum. See Boardley v. Dept. of Interior,
Here, there is equally good reason not to follow the alternative grounds rule. Because of DRED’s representations at trial, Doyle had no reason to believe that there was any dispute as to whether Mount Monadnock is a traditional public forum, and thus no reason to develop the record to support such a ruling. Were we to now address DRED’s argument, Doyle’s reasonable reliance on DRED’s representation would work to his detriment, while DRED’s failure to address a legal issue at trial would now work to its advantage. Moreover, we prefer that issues like this be raised at trial “because trial forums should have a full opportunity to come to sound conclusions and to correct errors in the first instance.” Tiberghein v. B.R. Jones Roofing Co.,
Traditional public forums are fundamental to the continuing vitality of our democracy, for “time out of mind, [they] have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.” Boos v. Barry,
A. Significant Government Interest
DRED claims that the purpose of the regulation is to allow it to manage the varied and competing uses of park resources and to mitigate the impacts of commercial events. These interests are certainly significant. See Forsyth County v. Nationalist Movement,
DRED also claims that it has a significant interest in protecting visitors from unwelcome or unwarranted interference, annoyance, or danger. It is unclear whether this constitutes a significant government interest. Compare FCC v. Pacifica Foundation,
B. Narrowly Tailored
Narrow tailoring is satisfied so long as the regulation promotes a significant government interest that would be achieved less effectively absent the regulation. Ward,
To determine whether the regulation meets this standard, we must first establish its scope. We ascribe the plain and ordinary meaning to regulatory text. See Kenison v. Dubois,
WEBSTER’S defines “event” as “something that happens.” Id. at 788. It defines “special” as “distinguished by some unusual quality,” id. at 2186, and “organize,” in relevant part, as “to arrange by systemic planning and coordination of individual effort,” id. at 1590. Thus, “organized or special events” are happenings that are either coordinated and planned or unusual.
WEBSTER’S defines “routine” as “of a commonplace or repetitious character.” Id. at 981. As such, “routine recreational activities” are those activities that are commonly or repeatedly done at the park. According to DRED and Mount Monadnock’s website, those activities include camping, hiking, picnicking, Nordic skiing and snowshoeing.
We thus interpret Res 7306.01(a) to require a permit when a person does something that is either unusual or planned and is not one of the listed activities. As interpreted, the regulation applies to a broad range of people and types of speech.
As to people, the text of Res 7306.01(a) applies without regard to the number of people attending an event. Indeed, DRED has admitted that the “amount of people participating in the event does not affect whether it is considered an ‘organized event.’ ” Therefore, the regulation applies equally
Here, requiring a permit for one person — for example, a lone protestor holding a sign at the top of the mountain — does not further DRED’s interests. A one-person event will not require the allocation of competing park resources, nor is one person likely to cause any unwarranted or unwelcome annoyance. See Boardley,
Perhaps requiring very small groups to obtain permits would be constitutionally permissible where “the public space in question [is] so small that even a relatively small number of people could pose a problem of regulating competing uses.” Long Beach Area Peace v. City of Long Beach,
More troubling is that this regulation needlessly stifles political speech, an integral component to the operation of the system of government established by our Constitution. See Buckley v. Valeo,
Beyond the broad coverage of people and types of speech, Res 7306.01(a)’s thirty-day notice requirement raises additional constitutional concerns. Courts have held that similar (and shorter) notice periods violate the right to free speech. See, e.g., American-Arab Anti-Discrimin.,
Indeed, advance notice requirements for traditional public forums typically survive constitutional attack only when they require no more than
Underpinning some of these holdings is the observation that because state officials are often deployed on short notice there is no reason to require long notice periods. See Douglas,
The advance notice requirement is also problematic because it contains no exception for spontaneous expression. See Santa Monica Food Not Bombs, 450 F.3d at 1Q47 (“[T]o comport with the First Amendment, a permitting ordinance must provide some alternative for expression concerning fast-breaking events.”); Church of the Amer., Ku Klux Klan v. City of Gary, IN,
II. Conclusion
The foregoing demonstrates that Res 7306.01(a) is unconstitutional in a substantial number of its applications and is thereby overbroad. Therefore, on its face Res 7306.01(a) violates the right to free speech guaranteed by Part I, Article 22 of our State Constitution, and we thus need not address Doyle’s remaining arguments, including his arguments under the Federal Constitution. See Ball,
Our holding today, however, is a narrow one. It rests on the assumption that Mount Monadnock is a traditional public forum, an assumption based upon the procedural posture of this case. We note that it is possible that the regulation at issue here could be permissible as applied to DRED properties that are not traditional public forums, and that in any event DRED may adopt regulations consistent with the right to free speech, which will require DRED to take into account the character of the property it regulates.
Reversed and remanded.