FILED U.S. COURT OF APPEALS ELEVENTH CIRCUIT MAY 25 2000 THOMAS K. KAHN CLERK [PUBLISH]

IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT

___________________________ No. 98-2174

___________________________ D.C. Docket No. 97-00076-MC-ORL-22

UNITED STATES OF AMERICA, Plaintiff - Appellee,

versus MARVIN FRANDSEN BRYAN MORRIS, Defendants - Appellants.

____________________________ Appeals from the United States District Court for the Middle District of Florida

____________________________ (May 25, 2000)

Before TJOFLAT and CARNES, Circuit J udges, and GARWOOD*, Senior Circuit Judge.

_________________ *Honorable William L. Garwood, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by designation. CARNES, Circuit Judge:1 The defendants were protesting the “discrimin ation allegedly suffered by Naturist citizens at the hands of Brevard County and th e then-current Canaveral National Seashore administration.” See Frandsen’s Brief at 6. A naturist is a person who “advocates a ‘clothing optional’ lifestyle.” Naturist Soc., Inc. v. Fillyaw , 958 F.2d 1515, 1517 (11th Cir. 1992). 2 This appeal presents us with the is sue of the constitutionality of a federal regulation, 36 C.F.R. § 2.51 (reprinted in appendix), whic h requires persons to obtain a permit before making “public expressions of views” in national parks. Marvin Frandsen and Bryan Morris (“de fendants”) were arrested and convicted for protesting without a permit at the Canaveral National Seashore (“the park”), a national park, in violation of 36 C.F.R. § 1. 6. They challenged on its face the constitutionality of 36 C.F.R. § 2.51, which required them to obtain a permit prior to their protest. For the reasons set forth below, we hold that 36 C.F.R. § 2.51 is unconstitutional on its face, and therefore, we reverse th e defendant’s convictions.
I. BACKGROUND Defendants Frandsen and Morris, along w ith a group of other protestors, were charged with publicly assembling at the park without a permit in violation of 36 C.F.R. § 2.51. 1 The government later amended the charge to cite as the provision violated, 36 C.F.R. § 1.6(g)(1), which pr ohibits engaging in an activity requiring a permit without first obtaining the permit. The defendants consented to their petty offense trial being conducted before a magistrate judge. In response to the char ges, the defendants ar gued that 36 C.F.R. §3 2.51, the regulation requiring them to obtai n a permit prior to their protest, and 36 C.F.R. § 1.6(g)(1), the regulation prohi biting protesting without a permit, were facially unconstitutional. They argued that the permit scheme violated the First Amendment because it was a prior restraint on free speech , lacked the constitutionally required procedural safeguards, and vested unbridled discretion in the government officials administering it. The government argued that the perm it scheme was a valid time, place, or manner restriction on speech. The magistrate judge concluded that the park was not a public forum because the government had set it aside for r ecreational activity, and he applied a reasonableness test in evaluati ng section 2.51. The magistrate judge then held that the permit scheme provided an ad equate restriction on the tim e the superintendent has to decide whether to issue a permit because the regulation provides that, unless the permit should be denied, the superint endent “shall” issue a permit “without unreasonable delay.” Alternativ ely, the magistrate judge he ld that, if strict scrutiny applied, the permit scheme wa s facially constitutional, citi ng United States v. Kistner , 68 F.3d 218 (8th Cir. 1995) (upholding 36 C.F.R. § 2.52(a)). After the magistrate judge denied all the motions to dismiss, each of the defendants pleaded guilty, but they reserved th e right to appeal from the denial of the motion to dismiss. The magistrate judge sentenced each of the defendants to pay a2 Neither the magistrate judge nor the district court ruled on the constitutionality of 36 C.F.R. § 1.6, which prohibits protesting without a permit in violation of 36 C.F.R. § 2.51. 4 fine of one dollar, but stayed that sent ence pending appeal, and also ordered them to pay a special assessment of ten dollars, which was not stayed. All of the defendants appealed to the distri ct court. Agreeing with the ma gistrate judge that 36 C.F.R. § 2.51 is not unconstitutional, the district court upheld the convictions. 2 All of the defendants appealed the district court’s deci sion to this Court. Finding that the notices of appeal were not timely, we remande d the case to the district court for a determination of excusable neglect. Afte r the district court found that only Frandsen and Morris had demonstrated excusable negl ect, we entered an order that the appeal could proceed only as to those two defendants. On appeal, Frandsen and Morris contend that their convictions for protesting without a permit in violation of 36 C.F.R. § 1.6 should be overturned, because the regulation requiring them to obtain a perm it, 36 C.F.R. § 2.51, is unconstitutional on its face. Their primary contentions are as follows: (1) section 2.51 lacks the procedural safeguards required for a prio r restraint on speech, as set forth by the Supreme Court in Freedman v. Maryland , 380 U.S. 51, 58-59, 85 S. Ct. 734, 739 (1965), and its progeny; (2) section 2.51 is overbroad and not narrowly tailored to serve a compelling government interest b ecause it covers “other public expressions5 of views;” and (3) section 2.51 grants unbrid led discretion to the park superintendent in deciding whether to grant a permit. We find it necessary to address only their first contention.
II. DISCUSSION Before we can reach the merits of Frandsen and Morris’ appeal, we must determine whether a facial challenge is appr opriate for the regula tion at issue. A facial challenge, as distinguished from an as-applied challenge, seeks to invalidate a statute or regulation itself. See Jacobs v. Florida Bar , 50 F.3d 901, 905-06 (11th Cir. 1995). A criminal defendant who is convicted of violating a law may appeal his conviction by challenging the constitutiona lity of the law on its face. See Papachristou v. City of Jacksonville , 405 U.S. 156, 92 S. Ct. 839 (1972); Thornhill v. Alabama , 310 U.S. 88, 97, 60 S. Ct. 736, 742 (1940) (explaining in the First Amendment context that “[o]ne who might have had a license for the asking may . . . call into question the whole scheme of li censing when he is prosecuted for failure to procure it”); United States v. Acheson , 195 F.3d 645, 648-50 (11th Cir. 1999). This is true even if the defendant plead ed guilty to violating the law. See United States v. Cunningham , 161 F.3d 1343, 1344 (11th Cir. 1998). “[W]hen a licensing statute allegedly vests unbridled discretion in a gove rnment official over whether to permit or deny expressive activity, one who is s ubject to the law may challenge it facially3 This rule, known as “the Salerno rule,” has been subject to a heated debate in the Supreme Court, where it has not been consistently followed. See City of Chicago v. Morales , 119 S. Ct. 1849, 1858-59 n.22 (1999) (plurality opinion) (Stevens, J., Souter, J., and Ginsburg, J.) (“To the extent we have consistently articulated a clear standard for facial challenges, it is not the Salerno formulation, which has never been the decisive factor in any decision of this Court. . . .”); Morales , 119 S. Ct. at 1870-71 & n.2 (Scalia, J. dissenting) (“As Salerno noted, . . . the overbreadth doctrine is a specialized exception to the general rule for faci al challenges, justified in light of the risk that an overbroad statute will chill free expression. . . . I amaware, of course, that in some recent facialchallenge cases the Court has, without any attempt at explanation, created entirely irrational exceptions to the ‘unconstitutional in every conceivabl e application’ rule, when the statutes at issue concerned hot-button social issues on which ‘i nformed opinion’ was zealously united.”) (citations omitted); Washington v. Glucksberg , 117 S. Ct. 2302, 2304-05 (1997) (Ste vens, J. concurring) (“I do not believe the Court has ever actually applie d such a strict standard, even in Salerno itself, and the Court does not appear to apply Salerno here.”); Janklow v. Planned Parenthood, Sioux Falls 6 without the necessity of first applying for, and being denied, a license.” City of Lakewood v. Plain Dealer Publ’g Co. , 486 U.S. 750, 755-56, 108 S. Ct. 2138, 2143 (1988). The remedy if the facial challenge is successful is the striking down of the regulation and the reversal of the conviction. See Stromberg v. California , 283 U.S. 359, 369-70, 51 S. Ct. 532, 536 (1931) (“The . . . statute being invalid on its face, the conviction of the appellant . . . must be set aside.”). The general rule in this circuit is that for “[a] facial challe nge to be successful, [a plaintiff] ‘must establish that no set of circumstances exists under which the [law] would be valid.’” Adler v. Duval County School Board , 206 F.3d 1070, 1083-84 (11th Cir. 2000) (en banc) (quoti ng United States v. Salerno , 481 U.S. 739, 745, 107 S. Ct. 2095, 2100 (1987)); see also Jacobs , 50 F.3d at 906 n.20 (“[w]hen a plaintiff attacks a law facially, the plaintiff bear s the burden of proving that the law could never be constitutionally applied.”). 3 Some circuits have determined that a facialClinic , 517 U.S. 1174,1175-1176, 116 S. Ct. 1582, 1583 (1996) (Memorandum opinion by Stevens, J. denying cert.) (“[T]he dicta in Salerno does not accurately characterize the standard for deciding facial challenges, and neither accurately reflect s the Court’s practice with respect to facial challenges, nor is it consistent with a wide array of legal principles.”) (quotation marks and citation omitted); Janklow , 517 U.S. at 1178, 116 S. Ct. at 1584 (Scalia , J. dissenting) (explaining that the question of when the Salerno rule applies “cries out for our review”); Planned Parenthood of Southeastern Pennsylvania v. Casey , 505 U.S. 833, 942, 112 S. Ct. 2791, 2854 (1992) (Blackmun, J. concurring in part, dissenting in part) (“[Chi ef Justice Rehnquist in a dissenting opinion] then further weakens the test [for a facial challenge ] by providing an insurmountable requirement for facial challenges: Petitioners must ‘show that no set of circumstances exist under which the [provision] would be valid.’”); Casey , 505 U.S. at 972, 112 S. Ct. at 2870 (Rehnquist, C.J. dissenting) (“[B]ecause this is a facial challenge to the Act, it is insufficient for petitioners to show that the notification provision ‘might operate unconstitutionally under some conceivable circumstances.’”); see also Florida League of Profe ssional Lobbyists, Inc. v. Meggs , 87 F.3d 457, 459 (11th Cir.1996) (discussing disagreement among the Supreme Court Justices concerning "how high the threshold for facial invalidation should be se t"); Michael C. Dorf, Facial Challenges to State and Federal Statutes , 46 Stan. L. Rev. 235 (1994). An exception to that general rule “permit[s] a party to challenge an ordinance under the overbreadth doctrine in cases where every applica tion creates an impermissible risk of suppression of ideas, such as an ordinance that delegates overly broad discretion to the decisionmaker, and in cases where the ordinance sweeps too broadly, penalizing a substantial amount of speech that is constitutionally protected” even if “application in the case under consideration may be constitutionally unobjectionable.” Fo rsyth County v. Nationalist Movement , 505 U.S. 123, 129, 112 S. Ct. 2395, 2401 (1992) (citations omitted); see also Morales , 119 S. Ct. at 1870 n.2 (Scalia, J. dissenting) (“As Salerno noted, . . . the overbreadth doctrine is a specialized exception to the general rule for facial challenges, justified in light of the risk that an overb road statute will chill free expression.”) (citation omitted). 7 challenge to a prior restraint on speech fo r want of certain procedural safeguards satisfies that general rule. “A form of unbr idled discretion is the failure to place brief, specific time limits on the decision-making pr ocess. The rationale for permitting a facial challenge is that when a licensing sc heme allegedly contai ns a risk of delay, ‘every application of the statute create[s] an impermissible risk of suppression of ideas.’” Nightclubs, Inc. v. City of Paducah , 202 F.3d 884, 889 (6th Cir. 2000) (internal quotation marks and citations om itted) (quoting FW/PBS,Inc. v. City of8 Dallas , 493 U.S. 215, 223-24, 110 S. Ct. 596 (1990) (plurality opinion)); see also Baby Tam & Co., Inc. v. City of Las Vegas , 154 F.3d 1097, 1100 (9th Cir. 1998) (“A facial challenge is also appropriate whenthere is a lack of adequate procedural safeguards necessary to ensure against undue suppression of protected speech.”) (citation omitted). Whatever the precise scope of the gene ral rule may be, the Supreme Court and this Court consistently have permitted facial challenges to prior restraints on speech without requiring the plaintiff to show that there are no conceivabl e set of facts where the application of the particular gove rnment regulation might or would be constitutional. See , e.g. , Plain Dealer , 486 U.S. at 755-56, 108 S. Ct. at 2143; FW/PBS , 493 U.S. at 225, 110 S. Ct. at 604; Freedman , 380 U.S. at 58-60, 85 S. Ct. at 738-40; Boss Capital, Inc. v. City of Casselberry , 187 F.3d 1251 (11th Cir. 1999); Lady J. Lingerie, Inc. v. City of Jacksonville , 176 F.3d 1358 (11th Cir. 1999); Redner
v. Dean , 29 F.3d 1495 (11th Cir. 1994); cf. Abramson v. Gonzalez , 949 F.2d 1567, 1573 (11th Cir. 1992) (explaining that a facial challenge is proper because the regulation “affects the enjoyment of free doms which the Constitution guarantees and subjects the exercise of First Amendm ent freedoms to licensing requirements”) (internal citations and quotation mark s omitted). Because Frandsen and Morris challenge the permit regulation, which is a prior restraint on speech, on grounds that9 it fails to provide constitutiona lly required procedural safeguards, the general rule set forth in Adler does not apply to their facial challenge. A prior restraint on expression exists when the government can deny access to a forum for expression before the expression occurs. See Ward v. Rock Against Racism , 491 U.S. 781, 795 n. 5, 109 S. Ct. 2746, 2756 n. 5 (1989) (holding that a regulation was not a prior restraint because it did not authorize suppression of speech in advance of its expression). The regulation presently at issue clearly constitutes a prior restraint on expression. Under 36 C.F.R. § 2.51, the National Park Service allows “[p]ublic assemblies, meetings, gath erings, demonstrations , parades, and other public expressions of views” at the Canav eral National Seashore and other national parks only if the park superintendent issues a permit in advance of the activity. See 36 C.F.R. § 2.51(a). Because the superint endent can deny the use of the park for expression by denying a permit, section 2.51 is a prior restraint on expression. See Ward , 491 U.S. at 795 n. 5, 109 S. Ct. at 2756 n. 5. Although prior restraints are not
per se unconstitutional, there is a strong presumption against their constitutionality.
See FW/PBS , 493 U.S. at 225, 110 S. Ct. at 6 04 (O’Connor, J.) (plurality opinion).
A. DOES SECTION 2.51 APPLY TO PUBLIC FORA ? When a regulation restricts the use of government property as a forum for expression, an initial step in analyzing whether the regulation is unconstitutional is10 determining the nature of the gove rnment property involved. See United States v. Kokinda , 497 U.S. 720, 726-27, 110 S. Ct. 3115, 3119-20 (1990). The nature of the property determines the level of constitutional scrutiny app lied to the restrictions on expression. See Capitol Square Review & Advisory Bd. v. Pinette , 515 U.S. 753, 761, 115 S. Ct. 2440, 2446 (1995). The Supreme C ourt has delineated three categories of government-owned property for purposes of the First Amendment: the traditional public forum, the designated public fo rum, and the nonpublic forum. See Crowder v. Housing Auth. of Atlanta , 990 F.2d 586, 590 (11th Cir. 1993). Streets and parks are the quintessential traditional public fora, because those areas “‘have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions.’” Perry Educ. Ass’ n v. Perry Local Educators’ Ass’n , 460 U.S. 37, 45, 103 S. Ct. 948, 954-55 (1983) (quoti ng Hague v. Committee for Indus. Org. , 307 U.S. 496, 515, 59 S. Ct . 954, 963 (1939)); see also United States v. Grace , 461 U.S. 171, 177, 103 S. Ct. 1702, 1706-07 (1983) (“[P]ublic places historically associated with the free exercise of expressive activ ities, such as . . . parks, are considered without more, to be public forums.”). Section 2.51 applies to national parks, which the government concedes are traditional public fora. The district court erred in determining that the national park4 Our decision in Naturist Society, Inc. v. Fillyaw , 958 F.2d 1515 (11th Cir. 1992), confirms that national parks are public fora. In Fillyaw , we reversed the district court’s determination that a state government preserve with a beach was a nonpublic fo rum and held that the government facility was a park with qualities of a tr aditional public forum. See id. at 1522. The state park in Fillyawis almost identical to the national park in this case. Both the national park he re and the state park in Fillyaware open to the general public and consist of beaches, sidewalks, and parking areas. Particularly applicable to the present case, we explained in Fillyaw : [T]he park is more than a beach. In particular, it contains parking lots, a nature center, and walkways. Speech and expressive conduct in these areas may not post the same evils as on the beach. In declaring the park a non-public forum based solely upon its beach characteristics, the district c ourt ignored other areas of the park which are not beach. Id. (citation omitted). 11 involved in this case is a nonpublic forum, and in turn, erred by applying a rational basis test to section 2.51. 4 Restrictions on expression in traditional public fora receive heightened scrutiny. See Kokinda , 497 U.S. at 726-27, 110 S. Ct. at 3119-20. In public fora, the government may regulate the time, place, and manner of expression so long as the restrictions “are content-neutral, ar e narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.” Grace , at 461 U.S. at 177, 103 S. Ct. at 1707 (internal quotation marks and citations omitted). Moreover, a regulation cons tituting a prior restraint on expression must also contain certain proce dural safeguards as set forth in Freedman v. Maryland , 380 U.S. 51, 59, 85 S. Ct. 734, 739 (1965). See Forsyth County v. Nationalist Movement , 505 U.S. 123, 130, 112 S. Ct. 2395, 2401 (1992); Lady J.5 Although the procedural protections were developed in the context of sexually explicit material, they apply with the same or even greater force in the context of prior restraints of political speech. As Justice Harlan wrote: The right to assemble peaceably to voice political protest is at least as basic as the right to exhibit a motion picture which ma y have some aesthetic value. Moreover, slow-moving procedures have a much more severe impact [on political speech] than they had in Freedman... [as] timing is of the essence in politics. Shuttlesworth v. Birmingham , 394 U.S. 147, 162-63, 89 S. Ct. 935, 944-45 (1969) (overturning convictions of marchers who demonstrated in violation of an unconstitutional permit ordinance) (Harlan, J. concurring).

6 In subsequent decisions, the Supreme Court has not required all th ree safeguards in every situation. For example, in FW/PBS , a plurality of the Court conclude d that the first of the Freedman 12 Lingerie, 176 F.3d at 1364-65. 5 Because we conclude that section 2.51 lacks one of the procedural safeguards required under Freedman , we do not address whether the regulation is a permissible time, place, or manner restriction.

B. IS 36 C.F.R. § 2.51 A CONSTITUTIONAL PRIOR RESTRAINT ON EXPRESSION? The Supreme Court in Freedmanoutlined three procedural safeguards that a prior restraint on protected expression must contain to obviate the dangers of censorship: (1) the burden of going to court to suppress the speech, and the burden of proof once in court, must rest with the gove rnment; (2) any restraint prior to a judicial determination may only be for a specified br ief time period in order to preserve the status quo; and (3) an avenue for prompt judicial review of the censor's decision must be available. Freedman , 380 U.S. at 58-59, 85 S. Ct. at 739. 6 At least some of theprocedural safeguards is not necessary in a licen sing scheme which regulates an entire business, as opposed to a scheme like Freedmanitself which involved the direct censorship of particular expressive material. The Court did require the second and third safeguards to be present. See FW/PBS , 493 U.S. at 229-30, 110 S.Ct. at 606-07. 13 Freedmanrequirements apply to cont ent-neutral regulations suchas section 2.51. See FW/PBS , 493 U.S. at 226-29, 110 S. Ct. at 605-06 (O’Connor, J., plurality opinion) (holding content-neutral licensing scheme was an unconstitutional prior restraint because it violated the second Freedmansafeguard – adequate limits on the time that the decisionmaker has to i ssue the license); see also id. at 238-39, 110 S. Ct. at 611 (Brennan, J., concurring) (agreeing with the pl urality opinion’s requirement of the first two Freedmansafeguards); Riley v. National Fe deration of the Blind of N.C., Inc. , 487 U.S. 781, 802 & n.14, 108 S. Ct. 2667, 2680-81 & n. 14 (1988) (holding that a content-neutral law requiri ng professional fundraisers to obtain a license before7 Despite a contrary implication by th e Supreme Court in Cox v. New Hampshire , 312 U.S. 569, 61 S. Ct. 762 (1941), a regulation is not exempt from the Freedmansafeguards merely because it meets the requirements for a valid time, place, or manner restriction. In Cox , the defendants challenged their convictions for taking part in a parade on public streets without a license. See id. at 573, 61 S. Ct. at 764. The New Hampshire Supreme Court had construed the scheme to require the licensing board to issue a permit if an inves tigation revealed that the convenience of the public in using the streets would not be disturbed, and to permit the licensing board to provide for conditions or changes in time, place, and ma nner so as to avoid disturbance. See id. at 576, 61 S. Ct. at 766. The Supreme Court affirmed the defendants’ convictions, stating that the city had the authority “to give consideration, without unfair discrimination, to time, place and manner in relation to the other proper uses of the streets.” Id. The defendants did not rais e nor did the Court discuss the issue addressed twenty-four years later in Freedman– whether a prior restraint on expression must contain certain procedural safeguards to be constitutional. The Supreme Court has read Coxas standing only for the proposition that the government may impose a permit requirement on those wish ing to hold marches or parades. See Forsyth County v. Nationalist Movement , 505 U.S. 123, 130, 112 S. Ct. 2395, 2401 (1992). More recently, the Court indicated that Coxdoes not stand for the proposition that as long as a regulation is a valid time, place, or manner restrictions, it need not provide the Freedman procedural safeguards. See Riley v. National Federation of the Blind of N.C., Inc. , 487 U.S. at 802, 108 S. Ct. at 2680 (citing Cox for the proposition that states may impose valid time, place, or manner restrictions, and then holding that even an otherwise valid license scheme must provide at least some of the Freedman safeguards). As previously noted, a prior restra int on expression in a traditional public forum must be both a content-neutral, reasonable time, place, or manner restriction and provide adequate procedural safeguards to avoid unconstitutional censorship. See Forsyth County , 505 U.S. at 130, 112 S. Ct. at 2401. 14 soliciting donations was subject to the procedural safeguards of Freedman ). 7 In FW/PBS , the Supreme Court explained that the second Freedman requirement – any restraint prior to a judicial determination may only be for a specified brief time period in order to preserve the status quo – means that “the licensor must make the decision whether to issue the license within a specifiedand reasonable time period during which the status quo is maintained . . . .” FW/PBS , 493 U.S. at 228, 110 S. Ct. at 606 (emphasis added). The Court reasoned that:15 The failure to confine the time with in which the licensor must make a decision contains the same vice as a statute delegating excessive administrative discretion. Where the licensor has unlimited time within which to issue a license, the risk of arbitrary suppression is as great as the provision of unbridled discretion. Id. at 226-27, 110 S. Ct. at 605 (internal quotation marks and citations omitted). We applied the time requirement in Redner v. Dean , 29 F.3d 1495 (11th Cir. 1994), and Lady J. Lingerie, Inc. v. City of Jacksonville , 176 F.2d 1358 (11th Cir. 1999). The Redner case involved the constitutionality of an ordinance that placed a forty-five day time limit on the administrator’s decisi on to grant or deny a license. See Redner , 29 F.3d at 1500. In the event the administrato r exceeded the forty-five day time limit, the ordinance stated that “the applicant may be permitted to begin operating the establishment for which a license is sought , unless and until the County Administrator notifies the applicant of a deni al of the application.” See id. at 1500-01 (citation omitted). We held that the ordinance wa s unconstitutional on its face because its use of the word “may” rather than “shall” allowed the individuals responsible for enforcing the ordinance to suppress the pr otected expression for an indefinite time period prior to any action on their part or any judicial de termination. See id. 1501 (holding also that the ordinance failed to provide for prompt judicial review). In Lady J. Lingerie , we examined the constitutiona lity of a city ordinance that required the zoning board to hold a public he aring within sixty-three days after a16 business applied for an exception to a zoning regulation but did not require a decision from the board during that time peri od or any time thereafter. See Lady J. Lingerie , 176 F.3d at 1363. As we put it, “the ordinance fails to put any real time limits on the zoning board.” Id. We held that the ordinance’s fa ilure to require a specific deadline for a decision rendered it unconstitutional because it vested too much discretion in the zoning board as to when a decision would be made. See id. Although the permit scheme he re requires the superinte ndent to issue a permit “without unreasonable delay,” 36 C.F.R. § 2.51(c), it does not provide the superintendent, the public, or any reviewing court, with any guidance as to what is considered “unreasonable.” Like the ordinance in Lady J. Lingerie , this regulation “fails to put any real time limits on th e [decision maker].” Lady J. Lingerie , 176 F.3d at 1363. A park superintendent could recei ve a permit request we ll in advance of a planned political demonstration and then fa il to act on the permit request until after the date of the demonstration, decidi ng on his own that he was acting “without unreasonable delay.” A park superintende nt who does not agree with the political message to be espoused could allow the permit request to sit on his desk for an indefinite period of time – resulting in speech being silenced by inaction. See Lady J. Lingerie , 176 F.3d at 1361 (“An ordinance that permits public officials to effectively deny an applicati on by sitting on it indefinitely is also invalid.”); Redner ,8 Relying on United States v. Kistner , 68 F.3d 218 (8th Cir. 1995), th e district court concluded that section 2.51 would satisfy a facial challenge to its constitutionality. That reliance on Kistner was misplaced for several reasons. First, the Kistner Court merely addressed a policy statement interpreting 36 C.F.R. § 2.52, which requires a permit for the distribution of printed material within national parks. See Kistner , 68 F.3d at 220. The court limited its review to the constitutionality of the policy statement and declined to review 36 C.F.R. § 2.51. See id. at 220 & n.3. Second, to the extent that the Kistner Court suggested that so long as a prior restraint is a reasonable time, place and manner restriction it need not contain the Freedman safeguards, that suggestion is inconsistent with Forsyth County , 505 U.S. at 130, 112 S. Ct. at 2401. 17 29 F.3d at 1501 (explaining that “[w]e cannot depend on the individuals responsible for enforcing [a regulation] to do so ina manner that cures it of constitutional infirmities” and concluding that the law “risks the suppression of protected expression for an indefinite time period pr ior to any action”). The def ect here is the same as that in FW/PBS : “[t]he failure to confine the time within which the licensor must make a decision . . . .” FW/PBS , 493 U.S. at 226-27, 110 S. Ct. at 605. 8 We hold that a regulation that merely requires a permit to be issued “without unreasonable delay” without mo re is unconstitutional, becau se it fails adequately to confine the time within which the decision maker must act. Because 36 C.F.R. § 2.51 is constitutionally invalid for that reason, the convictions of Frandsen and Morris for failing to obtain a permit under section 2.51 cannot stand. We need not reach the other issues they raise concerning section 2.51.
III. CONCLUSION The convictions of Frandsen and Morris are REVERSED.
APPENDIX18 36 C.F.R. § 2.51 states: (a) Public assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views are allowed within park areas, provided a permit therefor has been issued by the superintendent. (b) An application for such a permit shall set forth the name of the applicant; the date, time, duration, nature and place of the proposed event; an estimate of the number of persons expected to attend; a statement of equipment and fac ilities to be used and any other information required by the permit application form. (c) The superintendent shall, without unreasonable delay, issue a permit on proper application unless: (1) A prior application for a permit for the same time and place has been made that has been or will be gr anted and the activities authorized by that permit do not reasonably allow mu ltiple occupancy of that particular area; or (2) It reasonably appears that the ev ent will present a clear and present danger to the public health or safety; or (3) The event is of such nature or duration that it cannot reasonably be accommodated in the particular loca tion applied for, considering such things as damage to park resources or facilities, impairment of a protected area’s atmosphere of peace and tranquility, interference with program activities, or impairment of public use facilities. (d) If a permit is denied, the applicant shall be so informed in writing, with the reason(s) for the denial set forth. (e) The superintendent sh all designate on a map, th at shall be available in the office of the superintendent, the locations available for public assemblies. Locations may be desi gnated as not available only if such activities would:19 (1) Cause injury or damage to park resources; or (2) Unreasonably impair the atmosphere of peace and tranquility maintained in wilderness, natural, historic or commemorative zones; or (3) Unreasonably interfere with interpretive, visitor service, or other program activities, or with the admi nistrative activities of the National Park Service; or (4) Substantially impair the operati on of public use facilities or services of National Park Service concessioners or contractors; or (5) Present a clear and present dange r to the public health and safety. (f) The permit may contain such cond itions as are reasonably consistent with protection and use of the park area for the purposes for which it is established. It may also contain reasonable limitations on the equipment used and the time and area within which the event is allowed. (g) No permit shall be issued for a period in excess of 7 days, provided that permits may be extended for like periods, upon a new application, unless another applicant has requested use of the same location and multiple occupancy of that location is not reasonably possible. (h) It is prohibited for persons e ngaged in activities covered under this section to obstruct or impede pede strians or vehicles, or harass park visitors with physical contact. (i) A permit may be revoked under any of those conditions, as listed in paragraph (c) of this section, that constitute grounds for denial of a permit, or for violation of the term s and conditions of the permit. Such a revocation shall be made in writing, with the reason(s) for revocation clearly set forth, except under emergency circumstances, when an immediate verbal revocation or susp ension may be made to be followed by written confirmation within 72 hours.20 (j) Violation of the terms and conditi ons of a permit issued in accordance with this section may result in the suspension or revocation of the permit. 36 C.F.R. § 2.51