The Department of Resources and Economic Development (DRED) manages Mount Monadnock with the Monadnock State Park. On September 6, 2009, the plaintiff and others participated in an outing on Mount Monadnock in which he dressed in an apelike costume meant to depict the mythical creature “Bigfoot.” He spoke with several hikers, and eventually reported to police authorities that there had been a “Bigfoot” sighting on the mountain. The event was covered by a local newspaper, which induced Doyle to plan a second appearance in this role on the mountain, which he promoted on his own website.
The State Park Manager was not amused by the event or the attention it garnered. When the second appearance occurred, the plaintiff was asked to leave the mountain because he had not secured a “special use permit” as required by a DRED administrative rule. Doyle challenged the administrative rule in court, arguing that the text of the rule was vague and overbroad, and thus violated his right to free speech guaranteed by both the state and federal constitutions. The Superior Court sided with DRED and found the regulation valid, but the Supreme Court reversed.
Given that his speech was constitutionally protected, the question was whether the special use permit scheme as applied actually served to violate Doyle’s right to free speech. The key to the analysis is the legal standard to be applied. The Court found that the park was a “traditional public forum,” where a restriction on speech must “serve a significant government interest” and be “narrowly tailored” to achieve that interest.
DRED asserted it had two interests, which were (1) to manage the many and varied park events in order to conserve the property and (2) to protect visitors from unwelcome or unwarranted interference, annoyance or danger. The Court assumed these interests were significant, but then examined whether the regulation in question was “narrowly tailored” to serve these interests without unreasonably burdening the right to free speech. In this case, a permit was required of anyone who sought to hold an organized event that is “beyond routine recreational activities.” The permit must be sought 30 days in advance, is subject to a $100 fee, and requires a $2 million liability insurance policy in favor of the State of New Hampshire.
The Court found that the regulation was not narrowly tailored as required. It applied to any number of people, including a single person. It applied to any type of speech, including political speech. Using the example of a group of three people who carried a campaign sign to the summit, the Court found that restricting such an activity would not further the legitimate interests of DRED or protect the park or its users. The Court also found that the 30-day advance notice period was unreasonable and likely to restrict legitimate speech. The regulation was found to be unconstitutional as applied to this fact situation.
Interestingly, the Court noted that the regulation could be constitutional in some other fact situations, such as governmental properties that were very small, or were especially vulnerable to damage. While the administrative rule was not completely invalidated, it was found unenforceable in this context. Thus, if you are thinking about hiking the mountain, be prepared for Bigfoot to make an appearance without notice, no special use permit necessary.