United States Court of Appeals

For the Eighth Circuit

___________________________

No. 16-3377

___________________________

Josephine Havlak Photographer, Inc.; Josephine Havlak

lllllllllllllllllllll Plaintiffs - Appellants

William Joseph Hill; Mary Katherine Hill

lllllllllllllllllllll Plaintiffs

v.

Village of Twin Oaks; Kathy Runge, Village of Twin Oaks Clerk/Controller in her

official capacity only

lllllllllllllllllllll Defendants - Appellees

John Belmar, St. Louis County Police Chief in his official capacity only

lllllllllllllllllllll Defendant

------------------------------

InternationalMunicipalLawyersAssociation;MinneapolisPark andRecreationBoard

lllllllllllllllllllllAmici on Behalf of Appellee(s)

____________

Appeal from United States District Court 

for the Eastern District of Missouri - St. Louis

____________
Submitted: April 5, 2017

 Filed: July 26, 2017

____________

Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.

____________

SMITH, Chief Judge.

The Village of Twin Oaks (“The Village”) passed a municipal ordinance

prohibiting all commercial activity in its neighborhood park without a permit. A

commercial photographer, Josephine Havlak, sued the Village for injunctive and

declaratory relief on behalf of herself and her business, Josephine Havlak

Photographer, Inc. Havlak alleged that the ordinance violates her Free Speech rights

guaranteed by the First Amendment of the United States Constitution. The district

court

1

 denied her claims, and we affirm.

I. Background

The Village is a community of approximately 400 residents in Saint Louis

County, Missouri. It has a five-member Board of Trustees (“the Board”), which

administers the legislative and policymaking functions of the community. Too small

to operate its own police department, the Village contracts with Saint Louis County

(“County”) to provide police services. The County regularly assigns Officer Mike

Maxwell to the Village for 40 hours per week. Officer Maxwell responds to calls,

writes speeding tickets, and provides other municipal policing services. When it

needs additional police support, the Village contracts directly with Officer Maxwell

and other officers at an hourly rate. 

1The Honorable Audrey G. Fleissig, United States District Judge for the

Eastern District of Missouri.

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In 1994, the Village dedicated an 11-acre public park in the middle of the

community; the park includes a walking trail, lake, waterfall, gazebo, bridge,

playground, and sporting amenities. To protect this new resource, the Board enacted

a comprehensive ordinance prohibiting, among other things, motorized vehicles,

hunting, all commercial activity, and the obstruction of walkways. In 2011, the

Village upgraded the park’s playground equipment, and the park experienced a

dramatic increase in visitors—including a large number of commercial

photographers. Because of the gazebo, waterfall, bridge, and other garden structures,

one photographer referred to the park as presenting “a lot of good photo opportunities

in a small area.” 

Commercial photographers (as many as eight at a time) and their subjects

began competing for shooting locations within the park. Wedding parties would

congregate for photos on the park bridge. Photo subjects would occupy the park

restroom facilities, using them as dressing rooms. Some photographers would even

set up outdoor studios in the park for shooting multiple subjects in an assembly-line

fashion. In reaction to this increased traffic and in response to the Village residents’

complaints, the Board erected signs notifying photographers of the longstanding

ordinance prohibiting commercial activity within the park. Havlak filed this lawsuit

to enjoin enforcement of the ordinance and to declare the ordinance a violation of her

right of free speech.

Havlak is a professional photographer based in Saint Louis, Missouri. She

describes her work as conveying an expressive message in a manner similar to the

work of American portrait painter John Singer Sargent. Havlak maintains the

copyright to all her photographs and licenses them to her clients for personal use

only. Every year, she photographs hundreds of senior class portraits and more than

a dozen weddings. Her photo shoots usually last for lessthan an hour and feature only

a handful of people. Despite knowing about the park for more than ten years, she had

never used it for photography before filing this suit. Havlak testified that she had

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taken photographs in the park on two occasions. Both times, she saw at least three

other photographers and their subjectsin the park. During one ofthese shoots, Havlak

instructed her client to change clothes in a wooded area and to pose outside the

railing on the park bridge; it is undisputed that “a fall from the bridge could cause

serious injury.”

In response to this lawsuit, the Board amended its park ordinance to create a

permit process for the commercial use of park facilities (Ordinance § 220.020).2

2The relevant portion of the ordinance follows, as codified at the time of the

injunction hearing:

Regulation of Solicitations and Commercial Activities.

1. Solicitation of any business or service is prohibited. No person,

firm, or corporation is permitted to offer or advertise merchandise

or other goods for sale or hire. Excepting Village-sponsored

events and activities, the maintaining of a concession or the use

of any park facility, building, trail, road, bridge, bench, table or

other park property for commercial purposes is prohibited unless

a permit is issued by the Board of Trustees or its designated

representative(s). Such permit shall be clearly displayed by the

person(s) seeking to conduct commercial activities within the

park. The permitting process will help to ensure that the Village

is aware of the activity taking place within the park, that the

proposed date/time/location does not conflict with scheduled

activities/events/operations, and that no harm is done to the

landscape of the park. In its review of the permit request, the

Board of Trustees or its designated representative(s) should

consider:

a. The risk of damage and injury as set forth in Section

220.020(B) through (E);

b. The disruption of or conflict with the public’s use and

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enjoyment of the park;

c. Whether the issuance ofsuch permit may result in crowded

or congested conditions due to the anticipated number of

attendees for a planned event.

d. The nature of the requested activity, including whether

such activity involves:

(1) The sale of products or items, which is prohibited

unless it is a First-Amendment-protected activity;

(2) The use of furniture, tents [as that term is defined in

Section 220.040(D)] or large “prop” amenities,

which is prohibited; or

(3) The use of models or equipment.

e. The time and duration requested for such commercial

purposes, including:

(1) Whether the activity will exceed one (1) hour;

(2) Whether the number of people involved exceeds ten

(10); or

(3) Whether the time requested conflicts with a period

of peak visitation to the park or other scheduled

events, activities, or operations.

2. Any permitrequest involving lessthan ten (10) people, lasting for

less than one (1) hour, and complying with the above, will be

granted by the Village Clerk/Controller or a designee. All permit

requests must be submitted at least forty-eight (48) hours before

the proposed activities. Any permit request involving ten (10) or

more people, lasting more than one (1) hour, or otherwise

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The permit process requires the Board to consider the risk of damage to the park, any

disruptive effects on typical park use, the potential congestion caused by the activity,

and the nature of the activity itself. The ordinance allows for automatic approval of

events lasting less than one hour, having fewer than ten people, and with 48 hours’

advance notice. The permit fee is $100. As far as the record discloses, the Village has

approved all permit applications.

3

Two Board members, Lisa Eisenhauer and Chairman Ray Slama, testified at

the injunction hearing regarding the legislative intent behind the permit process. In

Eisenhauer’s words,

We do enjoy the photographers coming to see the park and taking

pictures and using the park, but we had to balance the interest of the

other park users and that’s why we went to the permitting process so that

the photographer receives the exclusive use of certain areas in which

they wish to do their shoot so that they can perform their shoot

efficiently. 

conflicting with any of the above factors must be submitted at

least fourteen (14) days in advance of the proposed activities so

that the Board of Trustees may review the request, and the

permitted authority may be limited to certain designated areas.

Each permit issued by the Village shall only be effective on the

date and time specified on the permit. Specific permit fees shall

be set by the Board of Trustees from time to time and shall be

posted on the Village’s website.

Village of Twin Oaks, Mo., Rev. Ordinances ch. 220, § 220.020(P) (2016) (alteration

in original).

3Havlak amended her complaint in response to the Village’s updated permit

process.

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The permit fee pays for a police officer to manage the commercial event, ensure

exclusive use of certain park areas, protect against interference with other park users,

and ensure that park rules are followed. Chairman Slama testified: “We have found

that our commercial photographers generally have issues obeying those rules.” He

emphasized that the Board endeavored to drawthe restrictions as narrowly as possible

with the express intention to “allow[] the commercial photographer[s] to come in and

take their shoot.” Both Board members testified to a direct correlation between the

permit fee and the administration of the permit, specifically noting the cost that the

Village incursfor the additional police support. Per Eisenhauer: “We ask for a permit

because if we don’t have a way to regulate not having five or six wedding groups

down there at the same time, then we have congestion in our park which we have

found to cause problems.” Havlak has never applied for a commercial permit.

The district court denied Havlak’s request for injunctive relief and entered a

declaratory judgment in favor of the Village.

II. Discussion

A. Facial vs. As-Applied Challenge

Havlak challenges the Village ordinance as overly broad both facially and as

applied to her. “Ordinarily, a party may not facially challenge a law on the ground

that it would be unconstitutional if applied to someone else.” SOB, Inc. v. Cty. of

Benton, 317 F.3d 856, 864 (8th Cir. 2003). The First Amendment overbreadth

doctrine, however, provides an avenue “whereby a law may be invalidated as

overbroad if ‘a substantial number of its applications are unconstitutional, judged in

relation to the statute’s plainly legitimate sweep.’” United States v. Stevens, 559 U.S.

460, 473 (2010) (quoting Wash. State Grange v. Wash. State Republican Party, 552

U.S. 442, 449 n.6 (2008)). “[T]he facial overbreadth doctrine ‘is a departure from

traditional rules of standing,’ such that a party whose own expressive conduct may

be unprotected is allowed to assert the First Amendment rights of others not before

the court . . . .” Republican Party of Minn. v. Klobuchar, 381 F.3d 785, 792 (8th Cir.

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2004) (citation omitted) (quoting Alexander v. United States, 509 U.S. 544, 555

(1993)). 

For a federal court to entertain a facial challenge pursuant to the First

Amendment overbreadth doctrine, “[t]here must be a realistic danger that the statute

itself will significantly compromise recognized First Amendment protections of

parties not before the [c]ourt.” Jacobsen v. Howard, 109 F.3d 1268, 1274 (8th Cir.

1997) (quoting Bd. of Airport Comm’rs of L.A. v. Jews for Jesus, Inc., 482 U.S. 569,

574 (1987)). “‘To be facially invalidated under this doctrine, the overbreadth of an

ordinance affecting both conduct and pure speech must be both “real” and

“substantial” in relation to its “plainly legitimate sweep.”’” Minn. Majority v.

Mansky, 708 F.3d 1051, 1056 (8th Cir. 2013) (quoting Excalibur Grp., Inc. v. City

of Minneapolis, 116 F.3d 1216, 1224 (8th Cir. 1997)). “‘Facial challenges are

disfavored’ because they ‘often rest on speculation . . . [and] raise the risk of

premature interpretation of statutes on the basis of factually barebones records.’”

Phelps–Roper v. City of Manchester, 697 F.3d 678, 685 (8th Cir. 2012) (alteration in

original) (internal quotation marks omitted) (quoting Wash. State Grange, 552 U.S.

at 450). 

Havlak bears the burden to demonstrate that she has standing to bring a facial

overbreadth claim. See Klobuchar, 381 F.3d at 791. For such challenges, “the party

before the court must identify a significant difference between his claim that the

statute is [facially] invalid on overbreadth grounds, and his claim that it is

unconstitutional as applied to his particular activity.” Van Bergen v. Minn., 59 F.3d

1541, 1549 (8th Cir. 1995). “We generally do not apply the ‘strong medicine’ of

overbreadth analysis where the parties fail to describe the instances of arguable

overbreadth of the contested law.” Wash. State Grange, 552 U.S. at 449 n.6 (internal

quotation marks omitted) (quoting N.Y. State Club Ass’n v. City of N.Y., 487 U.S. 1,

14 (1988)). It is inappropriate to entertain a facial overbreadth challenge when the

plaintiff fails to adduce any evidence that third parties will be affected in any manner

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differently from herself. See Members of City Council of L.A. v. Taxpayers for

Vincent, 466 U.S. 789, 802 (1984); see also Ashcroft v. Am. Civil Liberties Union,

535 U.S. 564, 584–85 (2002) (dismissing a facial overbreadth challenge for failure

to meet burden relating to other parties); Snider v. City of Cape Girardeau, 752 F.3d

1149, 1157 (8th Cir. 2014) (“[T]he fact one can conceive of an impermissible

application of a statute is not sufficient to render it susceptible to an overbreadth

challenge.”). Havlak presents no allegedly unconstitutionalscenarios affected by the

Village ordinance beyond her own commercial photography, so we will limit our

analysis to the ordinance’s application to Havlak. 

B. Time, Place, and Manner Regulation

We review the district court’s denial of injunctive relief for an abuse of

discretion, and we will reverse only if the district court made “clearly erroneous

factualfindings or erroneous legal conclusions.” TraditionalistAm. Knights of the Ku

Klux Klan v. City of Desloge, 775 F.3d 969, 974 (8th Cir. 2014) (quoting S.J.W. ex

rel. Wilson v. Lee’s Summit R–7 Sch. Dist., 696 F.3d 771, 776 (8th Cir. 2012)). In

First Amendment cases, we review the constitutional claims de novo, see Johnson v.

Minneapolis Park & Recreation Bd., 729 F.3d 1094, 1098 (8th Cir. 2013), and we

independently examine the record to ensure that there is no “forbidden intrusion on

the field of free expression,” Families Achieving Indep. & Respect v. Neb. Dep’t of

Soc. Servs., 111 F.3d 1408, 1411 (8th Cir. 1997) (en banc) (quoting N.Y. Times Co.

v. Sullivan, 376 U.S. 254, 285 (1964)).

As incorporated through the Fourteenth Amendment, see Survivors Network

of Those Abused by Priests, Inc. v. Joyce, 779 F.3d 785, 789 (8th Cir. 2015), the First

Amendment’s prohibition against “abridging the freedom of speech,” U.S. Const.

amend. I, applies to ordinances enacted by the Village. Nevertheless, the Village may

“regulate competing uses” of a traditional public forum, like a park, by “impos[ing]

a permit requirement.” Forsyth Cty. v. Nationalist Movement, 505 U.S. 123, 130

(1992); see also Packingham v. North Carolina, 137 S. Ct. 1730, 1735 (2017) (“A

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basic rule . . . is that a street or a park is a quintessential forum for the exercise of

First Amendment rights.”). Although we apply a “heavy presumption” against the

validity of ordinances that create prior restraints on speech, we will uphold such

ordinances if they meet the constitutional standards for time, place, and manner

regulations. See Forsyth Cty., 505 U.S. at 130 (quoting Bantam Books, Inc. v.

Sullivan, 372 U.S. 58, 70 (1963)).

“[A]ny permit scheme controlling the time, place, and manner of speech must

not be based on the content of the message, must be narrowly tailored to serve a

significant governmental interest, and must leave open ample alternatives for

communication.” Id. Additionally, “[s]uch regulations . . . must not ‘delegate overly

broad licensing discretion to a government official,’ and contain narrow, objective,

and definite standards to guide licensing authorities.” Douglas v. Brownell, 88 F.3d

1511, 1521 (8th Cir. 1996) (quoting Forsyth Cty., 505 U.S. at 130). We will analyze

the ordinance by these elements.

4

1. Content Neutrality

“Content-based laws—those that target speech based on its communicative

content—are presumptively unconstitutional and may be justified only if the

government proves that they are narrowly tailored to serve compelling state

interests.” Reed v. Town of Gilbert, 135 S. Ct. 2218, 2226 (2015). “[C]ourts will

4Like the district court, we assumewithout deciding that Havlak’s photography

constitutes expressive conduct entitled to First Amendment protections. See

Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks, 195 F. Supp. 3d 1065,

1075 (E.D. Mo. 2016). Because Havlak’s constitutional claim fails under the “most

exacting test” of First Amendment expression, we need not decide whether her

photographyqualifies as expressive conduct or analyze the ordinance under the rubric

of commercialspeech. See Kaahumanu v. Hawaii, 682 F.3d 789, 800 (9th Cir. 2012);

see also Sorrell v. IMS Health Inc., 564 U.S. 552, 571 (2011) (“[T]he outcome is the

same whether a special commercial speech inquiry or a stricter form of judicial

scrutiny is applied.”).

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apply a strict scrutiny analysis when the regulation discriminates on the basis of

content, and a more lenient analysis to content-neutral regulations.” Bery v. City of

N.Y., 97 F.3d 689, 696 (2d Cir. 1996). “The principal inquiry in determining content

neutrality . . . is whether the government has adopted a regulation of speech because

of disagreement with the message it conveys.” Ward v. Rock Against Racism, 491

U.S. 781, 791 (1989). “A regulation that serves purposes unrelated to the content of

expression is deemed neutral, even if it has an incidental effect on some speakers or

messages but not others.” Id. 

Havlak argues that two recent Supreme Court cases—Reed, 135 S. Ct. 2218,

and Sorrell, 564 U.S. 552—“have moved the goalposts for legislators seeking to

regulate speech based on the identity of the speaker and the type of message.” She

argues that the Village ordinance was intentionally created to burden the speech

rights of commercial photographers. SeeReed, 135 S. Ct. at 2230 (“Because ‘[s]peech

restrictions based on the identity of the speaker are all too often simply a means to

control content,’ we have insisted that ‘laws favoring some speakers over others

demand strict scrutiny when the legislature’s speaker preference reflects a content

preference.’” (first quoting Citizens United v. FEC, 558 U.S. 310, 340 (2010); then

quoting Turner Broad. Sys., Inc. v. FCC, 512 U.S. 622, 658 (1994))). This legislative

intent, she argues, requires us to apply strict scrutiny instead of the intermediate

scrutiny traditionally applied to content-neutral “time, place, andmanner” restrictions

of a traditional public forum.

Because strict scrutiny applies either when a law is content based on its

face or when the purpose and justification for the law are content based,

a court must evaluate each question before it concludes that the law is

content neutral and thus subject to a lower level of scrutiny.

Id. at 2228. In this case, the Village ordinance is facially content neutral and no

evidence shows a content-based purpose or justification.

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Ordinance § 220.020 isfacially neutral, unlike the restrictionsin both Reed and

Sorrell which directly burdened speech content. See, e.g., Reed, 135 S. Ct. at 2227

(“The Town’s Sign Code is content based on its face.”); Sorrell, 564 U.S. at 564

(“The law on its face burdens disfavored speech by disfavored speakers.”). The

Village’s ordinance does not reference any specific commercial enterprise or any

specific message. It applies equally, for example, to commercial photographers and

to hot dog vendors. The “commonsense meaning of the phrase ‘content based’

requires a court to consider whether a regulation of speech ‘on its face’ draws

distinctions based on the message a speaker conveys.” Reed, 135 S. Ct. at 2227

(quoting Sorrell, 564 U.S. at 565–66). Lacking any reference to any specific message

or messenger, the ordinance facially avoids Havlak’s content-based characterization.

The record also shows the lack of a content-based purpose behind Ordinance

§ 220.020. “The principal inquiry in determining content neutrality, in speech cases

generally and in time, place, or manner casesin particular, is whether the government

has adopted a regulation of speech because of disagreement with the message it

conveys.” Ward, 491 U.S. at 791 (emphasis added). Since the park’s dedication in

1994, the Village has banned all commercial activity in the park. The Village updated

its ordinance in 2015 to allow permitting for commercial activity. In large measure,

the Board enacted the permit process not to further restrict speech but to allow a

lawful avenue for expression. The Board members testified of “enjoying” the

photographers and wanting to give them“the benefit” of park resources. The evidence

showsthat the regulatory intent was not to burden a message but to allocate resources

and address legitimate concerns for safety. See, e.g., United States v. Nenninger, 351

F.3d 340, 345–46 (8th Cir. 2003). 

Havlak argues that because this ordinance burdens commercial photographers

and not non-commercial ones, the Village burdens her message of “family, peace,

tranquility and love.” There is no evidence that the Village shows antipathy for these

values, and the ordinance does not restrict either commercial or non-commercial

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photographers from expressing these ideals. “A regulation that serves purposes

unrelated to the content of expression is deemed neutral, even if it has an incidental

effect on some speakers or messages but not others.” Ward, 491 U.S. at 791; cf.

Kaahumanu, 682 F.3d at 810–11 (denying an equal-protection claim against an

ordinance that burdened commercial weddings but not non-commercial ones).

“Characterizing a distinction asspeaker based is only the beginning—not the end—of

the inquiry.” Reed, 135 S. Ct. at 2230–31. When a facially-neutral restriction is not

based on “disagreement with the message” and is “justified without reference to the

content of the regulated speech,” we will apply intermediate scrutiny. Cf. id. at 2227

(internal quotation marks omitted) (quoting Ward, 491 U.S. at 791).

We find the Village ordinance content neutral because it does not facially

discriminate on the basis of content and the record does not indicate any

governmental purpose to burden any particular message. See Recycle for Change v.

City of Oakland, 856 F.3d 666, 674 (9th Cir. 2017) (“Because the Ordinance does

not, by its terms, discriminate on the basis of content, and there is no evidence that

Oakland enacted the Ordinance with an intent to burden RFC’s message of charitable

solicitation or out of any disagreement with that message, the Ordinance is content

neutral.”); Patriotic Veterans, Inc. v. Zoeller, 845 F.3d 303, 306 (7th Cir. 2017), cert.

denied sub nom. Patriotic Veterans, Inc. v. Hill, No. 16-1198, 2017 WL 2722437

(U.S.June 26, 2017) (“Because Indiana does not discriminate by content—the statute

determines who may be called, not what message may be conveyed—these decisions

have not been called into question by Reed.”). 

2. Narrow Tailoring

Havlak concedes that the ordinance was adopted to serve the significant

government interests of reducing congestion and maintaining park safety. Heffron v.

Int’l Soc’y for Krishna Consciousness, Inc., 452 U.S. 640, 650 (1981) (“As a general

matter, it is clear that a State’s interest in protecting the ‘safety and convenience’ of

persons using a public forum is a valid governmental objective.”). Under the test for

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time, place, and manner restrictions, the question remains whether the ordinance is

narrowly tailored to meet those interests. “[T]he requirement of narrow tailoring is

satisfied ‘so long asthe . . . regulation promotes a substantial government interest that

would be achieved less effectively absent the regulation.’” Ward, 491 U.S. at 799

(quoting United States v. Albertini, 472 U.S. 675, 689 (1985)). “[T]he government’s

choice among the means to accomplish its end is entitled to deference.” Ass’n of

Cmty. Orgs. for Reform Now v. St. Louis Cty., 930 F.2d 591, 595 (8th Cir. 1991).

Acceptable legislative purposes for permits include “to coordinate multiple uses of

limited space, to assure preservation of the park facilities, to prevent uses that are

dangerous, unlawful, or impermissible under the Park District’s rules, and to assure

financial accountability for damage caused by the event.” Thomas v. Chi. Park Dist.,

534 U.S. 316, 322 (2002).

First, Havlak contends that the ordinance’s application to groups of all sizes

rendersit overly broad. Because groupssmaller than ten do not pose the same hazards

to the use and safety of the park that larger groups would, she argues that requiring

a permit for these smaller groups shows a lack of narrow tailoring. She relies on

Douglas, 88 F.3d at 1524, in which we suggested that a permit requirement for

parades containing ten or fewer people might not be narrowly tailored. See also

Am.–Arab Anti-Discrimination Comm. v. City of Dearborn, 418 F.3d 600, 608 (6th

Cir. 2005) (“The Ordinance is overly broad because under the Ordinance as written,

any procession of people with a common purpose or goal, whether it be a small group

of protestors or a group of senior citizens walking together to religious services, are

conceivably required to obtain a permit . . . .”). Unlike Douglas, in which the permit

process quelled potential spontaneous speech by an unlimited number of different

small groups, Ordinance § 202.020 appliesspecifically to commercial activity and is

distinguishable because it does not prevent small-scale expressive activity unrelated

to commercial enterprises. The Ninth Circuit rejected a similar argument in

Kaahumanu, in which plaintiffs argued that a permit requirement for commercial

weddings “assmall asthree individuals” on public beaches was not narrowly tailored.

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682 F.3d at 804. Even though Hawaii contains more than 200 public beaches for this

activity, the court upheld the permit requirement because it wasreasonably “designed

to minimize conflicting uses of limited beach area and to conserve the physical

resource of the beaches.” Id. at 803. The same reasoning applies here. 

Havlak also points to Thomas, but she argues that the Supreme Court allowed

the permit requirement there because the pertinent regulation applied only to groups

of 50 or more. 534 U.S. at 322. In Thomas, however, the Court did not suggest that

requiring a permit for fewer than 50 people would be unconstitutional, but it rather

suggested that permit ordinances should be fashioned for the efficient use of park

resources. See id. (“[T]o allow unregulated access to all comers could easily reduce

rather than enlarge the park’s utility as a forum for speech.” (quoting Thomas v. Chi.

Park Dist., 227 F.3d 921, 924 (7th Cir. 2000))). Havlak ignores the problem of the

aggregation of small-group commercial activity within the Village park. The record

reveals an occasion when asmany as eightsmall groups of commercial photographers

and their clients simultaneously attempted to use the park’s amenities. Havlak

testified that on both occasions in which she attempted to photograph subjects in the

park there were no less than three other groups shooting photography, too. Given the

high demand, the history of congestion, and the limited facilities of the park, the

ordinance’s lack of a permit exception for groups smaller than ten people does not

create a constitutional infirmity.

Second, Havlak argues that the ordinance is overly broad because the permit

is not restricted to certain congestion points known to attract commercial

photographers, but rather covers the entire 11-acre park. This argument ignores the

fact that the ordinance is designed to regulate all commercial activity—from

commercial yoga classes to basketball tournaments—not all of which would attempt

to use the same small areas preferred by commercial photographers. The permit

allows the Village to globally promote maximum use of park resources and protect

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against damage to all park facilities, not just those most used by photographers. See

Kaahumanu, 682 F.3d at 803. 

Third, Havlak argues that the two-day application period (for events of fewer

than ten people) and the 14-day period (for larger groups) are not narrowly tailored

because they serve to chill artistic expression. See, e.g., Church of the Am. Knights

of the Ku Klux Klan v. City of Gary, 334 F.3d 676, 682–83 (7th Cir. 2003) (rejecting

45-day advance permit notifications); Douglas, 88 F.3d at 1524 (“The five-day notice

requirement restricts a substantial amount of speech that does not interfere with the

city’s asserted goals of protecting pedestrian and vehicle traffic, and minimizing

inconvenience to the public.”). The cases presented by Havlak, however, deal

exclusivelywith ordinancesthat inhibit spontaneous speech. Much like weddings, see

Kaahumanu, 682 F.3d at 805, commercial photographyshoots are rarelyspontaneous.

Havlak testified that she discusses potential locations with clients before shooting.

For wedding photography, these discussions happen up to a year in advance. Havlak

contends that unpredictable light and weather conditions require spontaneity. Much

like commercial weddings, however, commercial photography only requires

spontaneity if unfavorable weather conditions arise. Planning for the event itself is

rarely spontaneous. As applied to her, these time periods sufficiently enable Havlak

to reasonably obtain permits for her commercial shoots. 

Additionally, Board members testified that the two-day period was designed

to give their clerk (one of two full-time Village employees) the time required to

process permit applications. The 14-day period enables the Board itself to review

permits for larger commercial events, because the Board “meets the first and third

Wednesday[s] of each month.” These time periods fall squarely in line with the

processing times of similar constitutional permit ordinances. See, e.g., Santa Monica

Food Not Bombs v. City of Santa Monica, 450 F.3d 1022, 1045 (9th Cir. 2006) (“The

two-day period . . . accords with Santa Monica’s significant governmental interests

by . . . providing a coordinated process for managing community events in heavily

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burdened and limited public space . . . .”); Thomas, 534 U.S. at 324 (approving a

permit application process for large groups of 28 days). We conclude that the permit

processing times included in the ordinance are narrowly tailored to the significant

interests of the Village’s efficient administration of its governmental duties.

Fourth, Havlak contendsthat the ordinance is not narrowly tailored because the

administrative fee is too high. It is well established, however, that “fees that cover

only the administrative costs ofthe license are permissible.” Jacobsen v.Crivaro, 851

F.2d 1067, 1071 (8th Cir. 1988). Havlak argues that the $100 fee is excessive

considering the cost that the Village incurs to administer the permit process. Yet,

Board members testified that there was a “direct correlation” between the fee and the

cost that the Village incurs, and the record supports this assertion. Board members

testified that any commercial activity would require a police officer for at least two

hours. By contract, the Village is charged $38.70 per hour for officer patrols, and this

does not include the additional fees that the Village must pay for patrol-vehicle

maintenance and mileage. The record demonstrates an overall cost of employing an

officer for two hours amounts to more than $93. Moreover, this number does not

include the administrative costs forthe Village clerk to handle the permit process. See

Kaahumanu, 682 F.3d at 794, 809 (approving a $20 application fee, plus a $0.10 fee

per square foot, and an insurance requirement of approximately $250 per year). We

hold that the fee amount is narrowly tailored to the actual costs that the Village

incurs.

The Village may not broadly prohibit free expression when satisfactory

alternatives exist. See Ass’n of Cmty. Orgs. for Reform Now v. City of Frontenac, 714

F.2d 813, 819 (8th Cir. 1983). But, the Village ordinance “need not be the least

restrictive orleast intrusive means” ofregulating public space. Ward, 491 U.S. at 798.

“So long as the means chosen are not substantially broader than necessary to achieve

the government’s interest . . . the regulation will not be invalid simply because a court

concludes that the government’s interest could be adequately served by some

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less-speech-restrictive alternative.” Id. at 800. As applied to Havlak, we find the

ordinance meets the narrowly-tailored requirement.5

3. Ample Alternatives

Havlak also argues that the “unique” nature of the park makes it a one-of-akind place, which no alternative could replace—and thus, the Village cannot

demonstrate that sufficient alternatives exist. Cf. Galvin v. Hay, 374 F.3d 739, 756

(9thCir. 2004) (“[T]he question must be whether the regulation preventsthe speakers

from expressing their views, where that expression depends in whole or part on the

chosen location.”). The record demonstrates, however, that the natural attributes of

the park exist in multiple locations across the Saint Louis area. In fact, although

Havlak does hundreds of photo shoots per year, she had not used the Village park

until learning about the ordinance; and since that time, she testified to using it only

twice. She frequently uses other city locations to voice the same messages she seeks

to express at the Village park. “[T]he First Amendment does not guarantee the right

to communicate one’s views at all times and places or in any manner that may be

desired.” Heffron, 452 U.S. at 647; see also Mastrovincenzo v. City of N.Y., 435 F.3d

78, 101 (2d Cir. 2006) (“The requirement that ‘ample alternative channels’ exist does

not imply that alternative channels must be perfect substitutes for those channels

denied to plaintiffs by the regulation at hand; indeed, were we to interpret the

requirement in this way, no alternative channels could ever be deemed ‘ample.’”).

The First Amendment does not require that artists get unrestricted access to “an ideal

venue,” but rather that “alternative avenues” of communicating their message are

5Havlak also argues that the ordinance is overly broad because it targets only

commercial photographers instead of unpaid photographers, but this is simply a

reiteration of her claim that the ordinance is content based, and it fails for the same

reasons as her content-discrimination argument.

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available. Mastrovincenzo, 435 F.3d at 102. The record demonstratesthat Havlak has

ample alternative channels for communicating her message.

6

4. Licensing Discretion

“[A] city may enact licensing procedures for conduct commonly associated

with expression, so long as the city ‘establish[es] neutral criteria to [e]nsure that the

licensing decision is not based on the content or viewpoint of the speech being

considered.’” Crivaro, 851 F.2d at 1070 (second alteration in original) (quoting City

of Lakewood v. Plain Dealer Publ’g Co., 486 U.S. 750, 760 (1988)). “A government

regulation that allows arbitrary application is ‘inherently inconsistent with a valid

time, place, and manner regulation because such discretion has the potential for

becoming a means ofsuppressing a particular point of view.’” Forsyth Cty., 505 U.S.

at 130 (quoting Heffron, 452 U.S. at 649). “‘[A] law subjecting the exercise of First

Amendment freedoms to the prior restraint of a license’ must contain ‘narrow,

objective, and definite standards to guide the licensing authority.’” Id. at 131 (quoting

Shuttlesworth v. City of Birmingham, 394 U.S. 147, 150–51 (1969)).

Havlak argues that the ordinance is “impermissibly vague” and provides

unbridled discretion to the Village to approve or deny permits. The ordinance,

however, provides “articulated standards” and “objective factors” that the clerk and

the Board are to consider when granting permits. See id. at 133. The ordinance

requires the Village licensing officials to look at the nature of the activity, potential

conflicts with other scheduled events, the number of participants, and other factors

relevant to resource allocation. See Thomas, 534 U.S. at 323 (approving a “time,

6At the heart of Havlak’s argument that alternative options do not exist is the

fearthat this ordinance establishes incentives for “every small town to create identical

permit schemes.” We do not address this situation because it is not before us. Cf.

Thomas, 534 U.S. at 325 (“[T]his abuse must be dealt with if and when a pattern of

unlawful favoritism appears, rather than by insisting upon a degree of rigidity that is

found in few legal arrangements.”).

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place, and manner regulation contain[ing] adequate standards to guide the official’s

decision”). None of the factorslisted in the ordinance deal with the content ofspeech,

and Board members testified that they have never denied a permit application.

The plain language of the ordinance guarantees permit approval for events

consisting of less than ten people, for less than an hour, and submitted 48 hours in

advance. For larger events, the Board may look only at legitimate factors relating to

park use and safety when analyzing a permit application. “While these standards are

undoubtedly flexible, and the officialsimplementing themwill exercise considerable

discretion, perfect clarity and precise guidance have never been required even of

regulationsthat restrict expressive activity.” Ward, 491 U.S. at 794;see also Thomas,

534 U.S. at 324 (noting “the Park District may deny a permit only for one or more of

the reasons set forth in the ordinance”). Thus, we conclude the ordinance does not

grant unbridled discretion to the Village, and its licensing factors survive

constitutional scrutiny.

Because the Village ordinance is content neutral, has been narrowly tailored

to serve the Village’s significant governmental interests, leaves ample alternativesfor

Havlak to communicate her message, and does not provide the Village with unbridled

discretion, we find the permit process survives Havlak’s challenge. See Forsyth Cty.,

505 U.S. at 130.

III. Conclusion

We conclude that the Village ordinance meets constitutional scrutiny asapplied to Havlak. We, therefore, affirm the judgment of the district court.

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