United States v. Frandsen , 212 F.3d 1231 ( 2000 )

  •                                                                      [PUBLISH]
                              FOR THE ELEVENTH CIRCUIT               U.S. COURT OF APPEALS
                              ___________________________              ELEVENTH CIRCUIT
                                                                           MAY 25 2000
                                                                        THOMAS K. KAHN
                                       No. 98-2174                           CLERK
                          D.C. Docket No. 97-00076-MC-ORL-22
                                                                  Plaintiff - Appellee,
                                                                  Defendants - Appellants.
                        Appeals from the United States District Court
                             for the Middle District of Florida
                                        (May 25, 2000)
    Before TJOFLAT and CARNES, Circuit Judges, and GARWOOD*, Senior Circuit
    *Honorable William L. Garwood, Senior U.S. Circuit Judge for the Fifth Circuit, sitting by
    CARNES, Circuit Judge:
           This appeal presents us with the issue of the constitutionality of a federal
    regulation, 36 C.F.R. § 2.51 (reprinted in appendix), which requires persons to obtain
    a permit before making “public expressions of views” in national parks. Marvin
    Frandsen and Bryan Morris (“defendants”) 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 the defendant’s convictions.
                                        I. BACKGROUND
           Defendants Frandsen and Morris, along with 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 prohibits 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 charges, the defendants argued that 36 C.F.R. §
          The defendants were protesting the “discrimination allegedly suffered by Naturist citizens at
    the hands of Brevard County and the 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).
    2.51, the regulation requiring them to obtain a permit prior to their protest, and 36
    C.F.R. § 1.6(g)(1), the regulation prohibiting 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 permit 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 recreational activity, and he applied a
    reasonableness test in evaluating section 2.51. The magistrate judge then held that the
    permit scheme provided an adequate restriction on the time the superintendent has to
    decide whether to issue a permit because the regulation provides that, unless the
    permit should be denied, the superintendent “shall” issue a permit “without
    unreasonable delay.” Alternatively, the magistrate judge held that, if strict scrutiny
    applied, the permit scheme was facially constitutional, citing 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 the right to appeal from the denial of the
    motion to dismiss. The magistrate judge sentenced each of the defendants to pay a
    fine of one dollar, but stayed that sentence 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 district court. Agreeing with the magistrate 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 decision to this Court. Finding that the notices
    of appeal were not timely, we remanded the case to the district court for a
    determination of excusable neglect. After the district court found that only Frandsen
    and Morris had demonstrated excusable neglect, 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 permit, 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 prior 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 because it covers “other public expressions
          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.
    of views;” and (3) section 2.51 grants unbridled discretion to the park superintendent
    in deciding whether to grant a permit. We find it necessary to address only their first
                                     II. DISCUSSION
          Before we can reach the merits of Frandsen and Morris’ appeal, we must
    determine whether a facial challenge is appropriate for the regulation 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 constitutionality of the law on its face.            See
    Papachristou v. City of Jacksonville, 
    405 U.S. 156
    92 S. Ct. 839
     (1972); Thornhill v.
    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 licensing 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 pleaded guilty to violating the law. See United States v.
    161 F.3d 1343
    , 1344 (11th Cir. 1998). “[W]hen a licensing statute
    allegedly vests unbridled discretion in a government official over whether to permit
    or deny expressive activity, one who is subject to the law may challenge it facially
    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 challenge 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) (quoting 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 bears the burden of proving that the law could
    never be constitutionally applied.”).3 Some circuits have determined that a facial
           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 facial challenges, justified in light of the risk that
    an overbroad statute will chill free expression. . . . I am aware, of course, that in some recent facial-
    challenge cases the Court has, without any attempt at explanation, created entirely irrational
    exceptions to the ‘unconstitutional in every conceivable application’ rule, when the statutes at issue
    concerned hot-button social issues on which ‘informed opinion’ was zealously united.”) (citations
    omitted); Washington v. Glucksberg, 
    117 S. Ct. 2302
    , 2304-05 (1997) (Stevens, J. concurring) (“I
    do not believe the Court has ever actually applied such a strict standard, even in Salerno itself, and
    the Court does not appear to apply Salerno here.”); Janklow v. Planned Parenthood, Sioux Falls
    challenge to a prior restraint on speech for want of certain procedural safeguards
    satisfies that general rule. “A form of unbridled discretion is the failure to place brief,
    specific time limits on the decision-making process. The rationale for permitting a
    facial challenge is that when a licensing scheme allegedly contains 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 omitted) (quoting FW/PBS,Inc. v. City of
    Clinic, 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 reflects 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) (“[Chief 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 Professional 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 set"); 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 application 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.” Forsyth 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 overbroad statute will chill free
    expression.”) (citation omitted).
    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 when there is a lack of adequate procedural
    safeguards necessary to ensure against undue suppression of protected speech.”)
    (citation omitted).
          Whatever the precise scope of the general 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 conceivable set of facts where
    the application of the particular government 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 freedoms which the Constitution guarantees and
    subjects the exercise of First Amendment freedoms to licensing requirements”)
    (internal citations and quotation marks omitted). Because Frandsen and Morris
    challenge the permit regulation, which is a prior restraint on speech, on grounds that
    it fails to provide constitutionally 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
    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, gatherings, demonstrations, parades, and other
    public expressions of views” at the Canaveral 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 superintendent 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 604 (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 is
    determining the nature of the government property involved. See United States v.
    497 U.S. 720
    , 726-27, 
    110 S. Ct. 3115
    , 3119-20 (1990). The nature of the
    property determines the level of constitutional scrutiny applied 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 Court has delineated three categories of
    government-owned property for purposes of the First Amendment: the traditional
    public forum, the designated public forum, 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
    103 S. Ct. 948
    , 954-55 (1983) (quoting 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 activities, 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 park
    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, are 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 constituting a prior restraint on
    expression must also contain certain procedural 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.
         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 forum and held that the government facility was
    a park with qualities of a traditional public forum. See id. at 1522. The state park in Fillyaw is
    almost identical to the national park in this case. Both the national park here and the state park in
    Fillyaw are 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 court ignored other areas of the park which
            are not beach.
    Id. (citation omitted).
    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.
             The Supreme Court in Freedman outlined 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 government; (2) any restraint prior to a judicial
    determination may only be for a specified brief 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 the
           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 may 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).
           In subsequent decisions, the Supreme Court has not required all three safeguards in every
    situation. For example, in FW/PBS, a plurality of the Court concluded that the first of the Freedman
    Freedman requirements apply to content-neutral regulations such as 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 Freedman safeguard – adequate limits on the time that
    the decisionmaker has to issue the license); see also id. at 238-39, 110 S. Ct. at 611
    (Brennan, J., concurring) (agreeing with the plurality opinion’s requirement of the first
    two Freedman safeguards); Riley v. National Federation 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 requiring professional fundraisers to obtain a license before
    procedural safeguards is not necessary in a licensing scheme which regulates an entire business, as
    opposed to a scheme like Freedman itself 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.
    soliciting donations was subject to the procedural safeguards of Freedman).                         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 specified and
    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:
          Despite a contrary implication by the Supreme Court in Cox v. New Hampshire, 
    312 U.S. 569
    61 S. Ct. 762
     (1941), a regulation is not exempt from the Freedman safeguards 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 investigation 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 manner 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 raise 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 Cox as standing only for the proposition that the government
    may impose a permit requirement on those wishing 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 Cox does 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 restraint 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.
          The failure to confine the time within 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 decision to grant or deny a license. See Redner, 29
    F.3d at 1500. In the event the administrator 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 denial of the application.” See id. at 1500-01 (citation
    omitted). We held that the ordinance was 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 protected expression for an indefinite time
    period prior to any action on their part or any judicial determination. See id. 1501
    (holding also that the ordinance failed to provide for prompt judicial review).
          In Lady J. Lingerie, we examined the constitutionality of a city ordinance that
    required the zoning board to hold a public hearing within sixty-three days after a
    business applied for an exception to a zoning regulation but did not require a decision
    from the board during that time period 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 failure 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 here requires the superintendent 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 the [decision maker].” Lady J. Lingerie, 176 F.3d
    at 1363. A park superintendent could receive a permit request well in advance of a
    planned political demonstration and then fail to act on the permit request until after
    the date of the demonstration, deciding on his own that he was acting “without
    unreasonable delay.” A park superintendent 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 application by sitting on it indefinitely is also invalid.”); Redner,
    29 F.3d at 1501 (explaining that “[w]e cannot depend on the individuals responsible
    for enforcing [a regulation] to do so in a manner that cures it of constitutional
    infirmities” and concluding that the law “risks the suppression of protected expression
    for an indefinite time period prior to any action”). The defect 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 more is unconstitutional, because 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.
          Relying on United States v. Kistner, 
    68 F.3d 218
     (8th Cir. 1995), the 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.
    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 facilities 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 granted and the activities authorized by
         that permit do not reasonably allow multiple occupancy of that particular
         area; or
         (2) It reasonably appears that the event 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 location 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 shall designate on a map, that shall be available
         in the office of the superintendent, the locations available for public
         assemblies. Locations may be designated as not available only if such
         activities would:
    (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 administrative activities of the National
    Park Service; or
    (4) Substantially impair the operation of public use facilities or services
    of National Park Service concessioners or contractors; or
    (5) Present a clear and present danger to the public health and safety.
    (f) The permit may contain such conditions 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 engaged in activities covered under this
    section to obstruct or impede pedestrians 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 terms 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 suspension may be made to be followed
    by written confirmation within 72 hours.
          (j) Violation of the terms and conditions 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