By Ed O'Keefe
Washington Post Staff Writer
Friday, October 15, 2010; A18
Small groups wishing to gather at national parks, including the Mall in Washington, no longer need to obtain a permit from the National Park Service, it was announced Thursday.
Organizers of larger demonstrations, concerts or religious ceremonies expected to draw more than a few dozen people - including comedian Jon Stewart's rally on the Mall scheduled for Oct. 30 - must still apply to the Park Service for the use of government space.
The change officially took effect Thursday and "allows for the spontaneity of First Amendment activities, preserving citizens' rights to free speech while allowing the National Park Service to protect the resources entrusted to our care," Park Service Director Jonathan Jarvis said.
The U.S. Court of Appeals for the D.C. Circuit ruled Aug. 6 that the Park Service's regulation forcing individuals or small groups to obtain a permit for First Amendment-protected activities was unconstitutional. But the court upheld the agency's policy of setting aside designated park areas for larger demonstrations and the sale of printed material after applicants obtained a permit.
The Justice Department declined to appeal the ruling.
The case was brought by Michael Boardley, who was distributing religious materials at Mount Rushmore in South Dakota in 2007 before a park ranger stopped him because he lacked a permit. His attempts to obtain a permit failed, and he later sued.
"It was a bureaucratic nightmare," said Nate Kellum, senior counsel with the Alliance Defense Fund, a nonprofit Christian legal defense group. "He was completely stymied from sharing his Christian views with anybody else."
The case "establishes that national parks are no different than any other public park," Kellum said. "There's no distinction now between Mount Rushmore and the city park down the street."
Groups of 25 or fewer people may now demonstrate or distribute or sell printed material in designated areas of national parks and historic sites without a permit, according to interim regulations to be published soon in the Federal Register.
Small groups can still apply for a permit to ensure the use of a particular location. If park officials determine that a preferred area cannot "reasonably physically accommodate 25 people," then park supervisors may lower the number of people covered by the small group exception, a spokesman said.
The changes will "generate confusion and possibly more litigation," said Jeff Ruch, executive director of Public Employees for Environmental Responsibility. Many parks do not have designated areas for public gatherings or do not clearly mark them, he said.
"This free-speech imbroglio is another example of Park Service leadership with its head in the sand, waiting to get sued rather than affirmatively addressing issues before they end up in court," Ruch said.