Last month, the Fifth Circuit Court of Appeals ruled that a restriction on structures larger than four feet by four feet in a Dallas, Texas park did not constitute a violation of the First Amendment. The plaintiff, an evangelical Christian who wished to spread his message in the park, was denied on his motion for a preliminary injunction.

Ricky Moore, the plaintiff, wished to use Klyde Warren Park in Dallas to share his religious message with others. To do so, he uses a portable sketch board, which is four feet wide and six feet tall, on which he paints riddles. The riddles are intended to attract people to stop by and ask him about them. The park rules prohibit structures larger than four feet by four feet without a permit. Beginning in 2013, Moore’s activities drew the attention of enforcement personnel at the park. In 2015, he received a criminal trespass warning. After the park’s regulators suggested that Moore could apply for a special event permit to erect his sketch board in the park, Moore sued the city on First Amendment grounds.

The district court denied Moore’s motion for a preliminary injunction. On appeal, the Fifth Circuit determined that the structure rule was content neutral. The court further determined that the city’s interests in public safety and coordinating uses of the park were substantial, and that the rule was narrowly tailored and Moore had alternative locations at which to conduct his activity (a nearby park area allowed his sketch board). The court also found that the permitting requirement was not unconstitutional as a prior restraint, because the structure regulation did not have a close nexus to expression. The court’s analysis concluded with a finding that the rule was not unconstitutionally vague.

Curiously, the court treated the regulation as one of speech instead of conduct. Although the court’s analysis of the prior restraint claim noted that regulation lacked a close nexus to expression, the court could have disposed of the case by reviewing it under United States v. O’Brien, in which the court would not have been required to conduct the usual intermediate scrutiny analysis, reviewing the government’s interest in the regulation and narrow tailoring. Regulations of conduct that have only incidental effects on speech need not be reviewed under that standard.

Moore v. Brown, 868 F.3d 398 (5th Cir. 2017).