Josephine Havlak Photographer, Inc. v. Village of Twin Oaks

          Submitted: April 5, 2017

         Appeal from United States District Court for the Eastern District of Missouri - St. Louis

          Before SMITH, Chief Judge, ARNOLD and SHEPHERD, Circuit Judges.

          SMITH, Chief Judge.

         The 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^[1] denied her claims, and we affirm.

         I. Background

         The 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.

         In 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."

         Commercial 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.

         Havlak 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."

         In 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).^[2] 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.^[3]

         Two 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.

         The 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.

         The district court denied Havlak's request for injunctive relief and entered a declaratory judgment in favor of the Village.

         II. Discussion

         A. Facial vs. As-Applied Challenge

         Havlak 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)).

         For a 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).

         Havlak 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.

         B. Time, Place, and ...