Another needless dispute over national parks — VOICES for REASON

There are 391 national parks in America. You might think you could visit any such park to relax on a vacation, without being confronted by spokesmen for religious, political, or social movements. But you would be wrong.

Because national parks are “public property,” not private property, any restrictions on expressive activities such as leafleting, oratory, and picketing must pass First Amendment scrutiny, since such restrictions are government actions. (The First Amendment doesn’t apply to private decisions on private property.) To the extent any national park is a “public forum” for debate (this varies from park to park), the government’s attitude must be “hands off.”

Until recently, to maintain a recreational atmosphere, the national parks required anyone engaging in First Amendment activity to obtain a permit in advance. But now a federal appellate court, in a case called Boardley v. U.S. Dep’t of the Interior, has declared the permit system unconstitutional, at least as it applies to individuals and small groups.

My point is not to criticize or praise the D.C. Circuit’s decision, because there is no way to decide such a case correctly. That’s because the institution of “public property” creates insoluble conflicts among individuals. Citizens who just want to relax in a park have no use for speakers peddling controversy—but speakers peddling controversy want nothing more than to shake vacationers out of their complacency. Because both groups are composed of taxpayers who “own” the park, both have a plausible claim to use it for their own purposes. As a result, their disputes end up in court, where judges are supposed to “balance” the two sides where no scales of justice exist.

The solution is private property. At Disney World, a private park, you can relax in peace—neither Mickey Mouse nor Donald Duck will attempt to engage you in debate. But if you decide to attend Burning Man, an annual festival held on private property, you will come face to face with more varieties of controversial, if not bizarre phenomena, than you may have thought humanly possible.

When property is private, its owner can decide as a matter of right what activities to allow or prohibit. That means there’s no political conflict between the two types of park. Disney World does not need to file suit against Burning Man for permission to foster a family atmosphere, and Burning Man does not have to sue Disney World for permission to, well, do what it does. There is certainly no need for a court to decide, arbitrarily, which type of activity should be allowed to take place on a given patch of ground.

Instead of litigating over who can do what in public parks, the federal government should be investigating options for transforming its vast public holdings into private property.

Image: WikiMedia Commons