Stone Mountain Memorial Ass'n v. Zauber

424 S.E.2d 279, 262 Ga. 661, 93 Fulton County D. Rep. 155, 1993 Ga. LEXIS 70
CourtSupreme Court of Georgia
DecidedJanuary 8, 1993
DocketS92A1170
StatusPublished
Cited by4 cases

This text of 424 S.E.2d 279 (Stone Mountain Memorial Ass'n v. Zauber) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Stone Mountain Memorial Ass'n v. Zauber, 424 S.E.2d 279, 262 Ga. 661, 93 Fulton County D. Rep. 155, 1993 Ga. LEXIS 70 (Ga. 1993).

Opinion

Clarke, Chief Justice.

We consider here the validity of the restrictions imposed by the Stone Mountain Memorial Association on the distribution of leaflets within the Park. The trial court held that the regulations adopted by appellant were an unconstitutional restriction on appellee’s right to free speech. We affirm.

Appellant Stone Mountain Memorial Association (“Association”) is the administrative body managing the state-owned Stone Mountain Park (“the Park”). The Park covers 3,200 acres, offering a variety of natural and constructed attractions. Its two gates are open to the public from 6:00 a.m. to midnight without charge, except a small parking fee for automobiles. In addition to the public areas, there are commercial facilities in the Park such as lodging facilities, restaurants, and a water park. The Association estimates that 6.5 million people visit the park every year. The Park hosts several public events each year including Easter church services, a folk art festival, and the Scottish Highland Games.

Appellee David Zauber is a pastor of a religious congregation and a representative of Jewish Believers in Jesus. One of Zauber’s evangelistic activities is the distribution of religious literature in public areas. He wants to distribute leaflets at the Park; however, the Association had adopted regulations prohibiting leafleting in the Park.1 Zauber challenged Ordinance § 6-104 under 42 USC § 1983 in the Superior Court of DeKalb County seeking declaratory and injunctive relief. The trial court granted a temporary restraining order against enforcement of the ban on leafleting. The Association then amended the Ordinance.2

[662]*6621. Leafleting is an expressive activity protected under the United States Constitution. United States v. Grace, 461 U. S. 171, 176-177 (103 SC 1702, 75 LE2d 736) (1983).

2. Under the forum-based analysis developed in Lehman v. City of Shaker Heights, 418 U. S. 298 (94 SC 2714, 41 LE2d 770) (1974) the first inquiry is to determine the type of forum to which the citizei seeks access. Cornelius v. NAACP Legal Defense &c. Fund, 473 U. S. 788, 801 (105 SC 3439, 87 LE2d 567) (1985).

Public parks are the quintessential public fora. Parks and streets

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. Hague v. C.I.O., 307 U. S. 496, 515 (59 SC 954, 83 LE 1423) (1939).

The history of the Park shows that it is a traditional public forum Public areas, where people are free to meet and discuss the issues of the day, are open to all at no charge. In addition, the Park hosts many group events open to the public, from Easter sunrise services tc folk festivals.

The sidewalks and streets of the Park, as well as other areas oper to the public without charge, are traditional public fora. In such places, government regulations of speech must be narrowly drawn tc achieve a compelling state interest. International Society for Krishna Consciousness v. Lee, 60 USLW 4749, 5751, _ U. S. _ (112 SC 2701, 2705, 120 LE2d 541), concurring opinion at 112 SC 2711 (1992) The government may, however, impose reasonable time, place, anc manner regulations if “the restrictions ‘are content-neutral, are narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.’ ” United States v. Grace, 461 U. S. 171, 177 (103 SC 1702, 75 LE2d 736) (1983) (quoting Perry Education Assn. v. Perry Local Educators’ Assn., 460 U. S. 37, 45 (103 SC 948, 74 LE2d 794) (1983)).

We hold the Association has fashioned its restrictions toe [663]*663broadly. Ordinance § 6-104 prohibits the distribution of literature anywhere in the Park except at one of two specified booths and limits the number of leafleteers to four at each booth. The leafleteer must first get a permit at least seven days in advance to distribute leaflets in the park. In the application for this permit, the applicant must provide extensive identifying information. We view this accumulation of restraints as going beyond the narrow regulation allowed by the Constitution.

3. This opinion should not be construed as a total proscription of speech regulation at the park. Although the Association cannot ban speech altogether, it “may act to protect even such traditional public forums as city streets and parks. . . .” The courts have upheld the government’s “ ‘substantial interest in maintaining the parks ... in an attractive and intact condition, readily available to the millions of people who wish to see and enjoy them.’ ” Ward v. Rock Against Racism, 491 U. S. 781, 796 (109 SC 2746, 105 LE2d 661) (1989) (quoting Clark v. Community for Creative Non-Violence, 468 U. S. 288, 296 (104 SC 3065, 82 LE2d 221) (1984)).

The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. Hague v. C.I.O., 307 U. S. at 515-516.

Because the Association has a legitimate interest in the orderly maintenance of the Park, certain time, place, and manner restrictions are appropriate.3

4. This Court is aware that, like most government property, the Park is a mixed forum. Not all areas of the Park are public. Certain areas, such as offices, the hotel, and storage buildings, are not a public park. The first amendment does not guarantee access to all publicly owned property. Perry, 460 U. S. at 46. This opinion does not speak to the limitations of public access and expression in these areas.

Nothing in the Constitution requires the Government freely [664]*664to grant access to all who wish to exercise their right to free speech on every type of Government property without regard to the nature of the property or to the disruption that might be caused by the speaker’s activities. Cornelius, supra, 473 U. S. at 799-800.
Decided January 8, 1993. Michael J. Bowers, Attorney General, John B. Ballard, Jr., Ray O. Lerer, Senior Assistant Attorneys General, for appellant. Jay Alan Sekulow, James M. Henderson, Sr., Mark N. Troobnick, for appellee.

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424 S.E.2d 279, 262 Ga. 661, 93 Fulton County D. Rep. 155, 1993 Ga. LEXIS 70, Counsel Stack Legal Research, https://law.counselstack.com/opinion/stone-mountain-memorial-assn-v-zauber-ga-1993.