Q: We are a group of people who want our public beach to be safe for pedestrians. When we go onto the beach, we are threatened by the Off-Highway Vehicle (OHV) Division of California State Parks and Recreation who uses our beach as a highway to the Oceano Dunes Recreation Area in Oceano, California. The OHV now says we have to have a permit, after we applied for a permit weeks ago and were told we don’t need one. We were told last week if we stopped a vehicle that would otherwise endanger kids we will be arrested. It appears that this Sunday if we go to the beach with our signs “Safe Beach Now,” they will stop us. I am telling people to just walk to the surf without signs. But I would like to know our rights.
A: Under the First Amendment and the equivalent provision in the California Constitution, the state is allowed to impose reasonable, content-neutral and narrowly-tailored “time, place and manner” (“TPM”) regulations on the exercise of free speech in areas that are open for such activity, which should include public beaches.
While requirement a permit can be a valid TPM, one of the requirements of TPM regulations is that they be content-neutral — i.e., that you are not treated differently than other organizations because OHV/Parks & Rec doesn’t like the content of your protest.
One of the main ways of ensuring the TPM regulations are content-neutral is to require that they be in writing. The incident regarding the permit requirement — first you were told you didn’t need one, then that you did — suggests that OHV is trying to impose a restriction that is not in writing or, if it is in writing, that it is not being applied consistently. That is typically not considered content-neutral because, if the “requirement” is not in writing, it gives too much discretion to OHV to decide to impose it only when they want to make it difficult for some organization to engage in speech that OHV doesn’t like.
You might want to ask to see the written regulations that OHV claims requires that you get a permit. If they cannot or will not produce a copy for you to review, it is quite possible the restriction they are attempting to impose is unconstitutional. If they arrest someone under an unconstitutional TPM regulation, it could subject OHV to a lawsuit for false arrest, especially if all your colleagues did is walk to the surf or even carry a sign. If you try to stop a vehicle, however, that would be a different story.
That said, it’s hard to know whether a claim for false arrest would really hold up. A judge down there might rule for OHV. So it would be best to try to use the request to see the permit requirement as a way to reach some sort of an agreement with OHV. Some supervisor there must understand that OHV may have a problem if they try to arrest someone for holding a sign that says “Safe Beach Now.”
If they do produce written requirements that require a permit, you might consider postponing your event long enough to give you time to get the permit.