Coppedge vs. JPL: Meet Boardley at Mt. Rushmore

THIS is about another First Amendment religion case — not David Coppedge vs. JPL. The case we’re discussing today isn’t directly about the First Amendment and the alleged right of David Coppedge to preach creationism on the job; it’s about the right of free speech at a public park. Still, this is of interest for reasons that will become apparent.

Before we discuss the appellate decision that just came out of the D.C. Circuit, here’s the opinion in the trial court case: Boardley v. US Department of Interior, 605 F. Supp. 2d 8 – Dist. Court, Dist. of Columbia 2009. Interesting facts:

Michael Boardley is a professing Christian who believes it is his Christian duty and privilege to inform others about the Gospel of Jesus Christ. … In the summer of 2007, he and a few others traveled to Mount Rushmore National Memorial to distribute free gospel tracts. On August 9, Boardley handed out tracts near the entrance to the Memorial without incident. When he returned to the same location the next day, he was approached by a park ranger, Les Hanson, who told him that he could not distribute printed material without a permit.

After seeking a permit without success:

Boardley then filed this suit against the United States Department of the Interior, the National Park Service, and five federal officials. He challenges the validity of 36 C.F.R. § 2.51 and § 2.52 — two similar regulations that apply to conduct at all national parks. Both regulations authorize park superintendents to designate the locations within each park that are available for certain activities: “[p]ublic assemblies, meetings, gatherings, demonstrations, parades and other public expressions of views” under section 2.51(a), and “[t]he sale or distribution of printed matter” under section 2.52(a).


Boardley contends that both regulations are facially invalid under the First Amendment because they are unjustified prior restraints on expression and because they are substantially overbroad, and under the First and Fifth Amendments because they are impermissibly vague. He also claims that section 2.52 is invalid as-applied under the First Amendment, the Fifth Amendment’s Equal Protection Clause, and the Religious Freedom Restoration Act (RFRA).

Well, Boardley lost at the trial court level. You can read the judge’s opinion at the link we gave you. But then he appealed and now we have the results of that. This time around Boardley won. The opinion is dated 06 August 2010: Boardley v. U.S. Dept. of Interior (21-page pdf file). Here’s another online copy that’s not a pdf file, which may be easier to read.

We won’t delve deeply into the constitutional issues. Instead, here’s a news story about the decision, appearing in the Dakota Voice, based in Rapid City, South Dakota. Their website says they bring: “news and commentary of interest to conservatives and Christians” and they strive “to maintain a biblical, Christian worldview.” The title of their story is Appeals Court Removes Gag at ‘Mt Hushmore’. (Mt. Hushmore, get it?) Here are some excerpts, with bold added by us:

A federal appellate court ruling declared Friday that federal regulations requiring individuals and groups to have permits in order to exercise their First Amendment rights in “free speech areas” and public forums at national parks and monuments are unconstitutional. Alliance Defense Fund attorneys filed a lawsuit against the U.S. Department of the Interior on behalf of Michael Boardley after a ranger at Mount Rushmore National Memorial stopped him and others for passing out religious literature without a permit near the park’s visitor center.

The astute among you noticed that mention of the Alliance Defense Fund. They’re also involved in the David Coppedge case, as we reported here: David Coppedge vs. JPL (10 Jun 2010). Let’s read on:

The First Amendment is the only permit a Christian or any American needs to engage in free speech on public property. The court was right to reach this conclusion,” said ADF Senior Counsel Nate Kellum. “Certainly, it made no sense to enforce unconstitutional regulations that deny free speech at the foot of Mount Rushmore – a place where four men who championed America’s freedoms are immortalized in stone.”


“This important decision means that Mr. Boardley and all Americans who visit our beautiful national parks and monuments will be able to exercise their free speech and religious expression rights without further unconstitutional barriers,” said ADF Legal Counsel Heather Gebelin Hacker.

Okay, that’s the lawyers talking. What did the court say? This is from the end of the appellate opinion:

Requiring individuals and small groups to obtain permits before engaging in expressive activities within designated “free speech areas” (and other public forums within national parks) violates the First Amendment. Neither party has argued that we should sever the regulations in order to leave part of them intact, and we perceive no basis for doing so. And, of course, it is the prerogative of the agency (or Congress) to decide whether to rewrite the regulations to apply only to large groups, and to decide where to draw that line. We have no choice but to hold the regulations unconstitutional in their entirety. Accordingly, the judgment of the district court is Reversed.

Rather sweeping, isn’t it? Before coming to that conclusion, there’s one little thing in the opinion that may interest you. The bold was added by us:

To be sure, the government suggests examples of small groups that “can attract a significant crowd or otherwise strain the resources of a park” — such as the “Westboro Baptist Church,” a “neo-Nazi white supremacist group,” or a “small group of Ku Klux Klan members.” Id. at 41-42. But the government has failed to show that most individuals and small groups who engage in free speech pose such problems. In order to be narrowly tailored, the regulations must “target[] and eliminate[] no more than the exact source of the `evil’ [they] seek to remedy.” [Citation omitted.]


The NPS regulations target much more than necessary. If a Girl Scouts leader musters her scouts onto a pavilion in a “free speech area” of Glacier National Park and proceeds to lecture them about the effects of global warming, she will have conducted both a “meeting” and a “gathering” (perhaps also an “assembly”) for which a permit would have been required. … An elementary school teacher who leads eight students on an excursion to the Canyon de Chelly National Monument and, within a “free speech area,” shows off her best imitation of a traditional Navajo dance presumably has hosted an unlawful “demonstration.” If a believer in Creationism visits the Hagerman Fossil Beds National Monument and, within a “free speech area,” quietly hands out literature disputing the theory of evolution, he is guilty of “distribut[ing] . . . printed matter” without a permit. … Under a plain reading of the NPS regulations, all of this speech is banned unless a permit is first acquired, even though none of it remotely threatens any of the government’s interests. …

So there you are — a clear victory for free speech. And the law firm that won this case is also involved in the David Coppedge case against Caltech and JPL, about which we last posted here: Caltech’s Answer Filed. And they managed to get a mention of creationism in this Mt. Rushmore decision. Very neatly done.

But working at Jet Propulsion Laboratory and haranguing one’s fellow employees about creationism isn’t the same as visiting Mt. Rushmore and preaching the gospel. In our humble opinion, Mt. Rushmore and JPL shouldn’t be treated the same regarding the preaching of creationism. But we shall see.

Update: See David Coppedge vs. JPL & Caltech (03 Sep 2010).

Copyright © 2010. The Sensuous Curmudgeon. All rights reserved.

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4 responses to “Coppedge vs. JPL: Meet Boardley at Mt. Rushmore

  1. I agree with SC. There’s a difference between a workplace with essentially a captive audience and a public park where people are free to come and go as they please.

  2. retiredsciguy

    Since Caltech/JPL was paying David Coppedge to perform some form of work useful to Caltech/JPL while he was at the workplace, and the description of that work did not include proselytizing for creationism, then JPL should have every right to tell him to knock it off. And this has been elevated to a federal case?? Sheesh!!

  3. I don’t think they have a right to bother me while I visit a national monument. I have rights too, right? This is why they have restrictions for such activities to be done wherever they won’t interrupt the flow of visitors.

    If they insisted I would be happy to nicely remind them of my rights and send them to fry asparagus.

  4. Mr Jefferson looked out across the vast vsitas from his mountain, and whispering into Mr Washingtons ear said:

    “My god what have we done? I TOLD you we should have left FROM in as well as OF.”

    “I concur my friend. They have lost their way and wasted what be built.

    The next day Ranger Bob looked up at the mountain, and said to his friend:

    “Thats odd….Im sure they had their eyes open yesterday”.