Josephine Havlak Photographer, Inc.; Josephine Havlak Plaintiffs-Appellants
Village of Twin Oaks; Kathy Runge, Village of Twin Oaks Clerk/Controller in her official capacity only Defendants-Appellees William Joseph Hill; Mary Katherine Hill Plaintiffs John Belmar, St. Louis County Police Chief in his official capacity only Defendant International Municipal Lawyers Association; Minneapolis Park and Recreation Board Amid on Behalf of Appellee(s)
Submitted: April 5, 2017
from United States District Court for the Eastern District of
Missouri - St. Louis
SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.
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 denied her claims, and we
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.
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."
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.
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 less than 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 taken
photographs in the park on two occasions. Both times, she saw
at least three other photographers and their subjects in the
park. During one of these 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."
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). 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.
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.
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 draw the 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
incurs for 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.
district court denied Havlak's request for injunctive
relief and entered a declaratory judgment in favor of the
Facial vs. As-Applied Challenge
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.
2004) (citation omitted) (quoting Alexander v. United
States, 509 U.S. 544, 555 (1993)).
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).
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 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 unconstitutional scenarios affected by
the Village ordinance beyond her own commercial photography,
so we will limit our analysis to the ordinance's
application to Havlak.
Time, Place, and ...