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Court upholds licensing ordinance for Twin Oaks park

Updated: Jun 29, 2022

The 8th Circuit Court of Appeals recently ruled in favor of Twin Oaks, Missouri in a lawsuit (Havlack v. Village of Twin Oaks, (8th Cir. July 26, 2017)) that challenged Twin Oaks’ ordinance requiring a license for commercial activity in the city park. The Twin Oaks park has many photogenic features, including a gazebo, waterfall, bridge, and other garden structures. The park became an attraction for commercial photographers. To protect the park from excessive commercial activity and its effects, and to balance the interests of all park patrons, Twin Oaks passed an ordinance prohibiting all commercial activity in the park without a permit. The ordinance required a $100 fee for the permit, and an application period of either 48 hours or 14 days (depending on the size and duration) in advance of the activity. The plaintiff, a commercial photographer, filed a lawsuit claiming the ordinance violated her First Amendment rights. The Court rejected the photographer’s claim and found that even if plaintiff’s photography was protected speech, the ordinance was a reasonable regulation. In rejecting the plaintiff’s challenge, the Court explained that the demonstrated intent behind the licensing ordinance was not to burden speech, but to address legitimate concerns, including safety. The Court also disagreed with the photographer’s contention that the application periods “chilled” artistic expression and that the $100 fee was too high. The advance application periods enabled the Board to adequately review and process permit applications, and the $100 fee offset administrative costs and the cost of having a police officer present in the park during the commercial activities. The Court also noted that the ordinance did not allow Twin Oaks unlimited discretion in reviewing the permits, because it contained standards and objective factors to be considered.

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