Knights of Columbus, Council 94 v. Town of Lexington , 272 F.3d 25 ( 2001 )

United States Court of Appeals
For the First Circuit
No. 01-2460
KNIGHTS OF COLUMBUS, COUNCIL #94, ET AL.,
Plaintiffs, Appellants,
v.
TOWN OF LEXINGTON ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Selya and Lipez, Circuit Judges,
and Singal,* District Judge.
Chester Darling, with whom Robert Roughsedge and Michael
Williams were on brief, for appellants.
Jordana Glasgow, with whom Daryl Lapp and Palmer & Dodge,
LLP were on brief, for appellees.
November 29, 2001
_______________
*Of the District of Maine, sitting by designation.
SELYA, Circuit Judge. This appeal requires us to
decide whether the Town of Lexington, Massachusetts (the Town)
violated the First Amendment by adopting a regulation that bans
unattended structures from the historic Battle Green. The
plaintiffs allege that this regulation infringes their First
Amendment rights and that the Town adopted it for an improper
purpose, viz., to exclude the annual religious display of a
crèche from the Battle Green. They also allege that, in all
events, the Town's selective application of the regulation
following its adoption renders it constitutionally infirm.
The district court found these charges unpersuasive and
granted summary judgment in the Town's favor. We affirm: the
record shows beyond hope of contradiction that the ban on
unattended structures is a content-neutral restriction on the
time, place, and manner of speech, narrowly tailored to achieve
a significant governmental interest and framed so as to allow
access to ample alternative avenues of communication. By the
same token, there is no violation of the Free Exercise Clause
because the regulation is a neutral law of general
applicability. Lastly, the plaintiffs' claims of selective
enforcement fail due to evidentiary insufficiency; the
regulation was only intended to apply to private parties, and
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there is nothing in the record that shows preferential treatment
in respect to any unattended structure erected by such a party.
I. BACKGROUND
The situs of this controversy is the historic Battle
Green (the Green) — the very place where the first battle of the
Revolutionary War occurred. Seven of the eight minutemen killed
during the battle are buried there, and the Minuteman Statue —
located at the apex of the Green — memorializes the American
colonists who fought in the Revolutionary War. The Green is a
registered historic landmark, owned and maintained by the Town.
The Town's governing legislative body is the Board of
Selectmen (the Board). The Board is entrusted with suzerainty
over, and protection of, the Green. In the exercise of that
function, the Board from time to time promulgates rules
governing the use of the Green. Historically, these rules have
allowed for a wide range of public uses, including recreational
activities and activities involving the expression of political,
religious, and other views. The rules divide activities on the
Green into three categories: (1) allowed activities, (2)
forbidden activities, and (3) activities for which a permit is
required. To illustrate, picnicking in small groups is allowed
as a matter of right; commercial solicitation is prohibited
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altogether; and rallies are allowed if a permit is first
obtained (but otherwise are forbidden).
For most of the twentieth century, the crèche — a
figurine representation of Christ's nativity in the stable at
Bethlehem — appeared on the Green for roughly six weeks each
year (in late November and December). For some thirty years,
the Town had erected the crèche, disassembled it, and stored the
components. In or around 1973, however, two fraternal
organizations — the Knights of Columbus and the Masons — assumed
responsibility for these tasks.
There is evidence that the display of the crèche long
has been a source of friction within the Town, and that some
residents complained bitterly about its presence on the Green.
For the most part, however, the regulations, insofar as they
pertained to the crèche at all, seem to have been honored more
in the breach than in the observance. Despite the fact that the
regulations have required a permit for a religious display of
this type since at least 1982, no permit ever was sought or
demanded prior to the erection of the crèche in any year before
1999.
Beginning in the fall of 1998, the issue was repeatedly
discussed at the Board's meetings. A group consisting of clergy
and citizens with various viewpoints was formed to study the
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problem and suggest solutions. This committee reported to the
Board on September 27, 1999. It unanimously concluded that
"private citizens do have the right to have religious
observances on the common land within guidelines established by
the town," but suggested that a shortened display period might
be a reasonable compromise. For the 1999 season, the owners of
the crèche, including the Knights of Columbus, agreed to a
display period of three weeks.
Subsequent to the Board's decision to allow the three-
week display, it began receiving requests to allow a wide range
of other religious structures on the Green for comparable
periods. One group desired to place a sign near the crèche
indicating some citizens' objections to its presence on public
land. Other applicants requested permission for a display
honoring witchcraft at Halloween and for the erection of a
pyramid to honor the Egyptian Sun God Ra during the month of
April. Yet another resident inquired about the possibility of
erecting a Sukkah, an open hut-like structure, to commemorate
the Jewish harvest festival of Sukkoth.
The minutes of the Board's meetings reveal a keen
awareness that if it continued to allow a display of the crèche,
many of these competing applications would have to be granted.
The Board thus believed that it was on the horns of a dilemma:
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it could not constitutionally pick and choose among competing
applications, but granting them all likely would compromise the
aesthetic and historic elements of the Green. After seeking
legal advice, the Board modified the rules governing use of the
Green in several ways. First, it limited permit eligibility for
public expressions on the Green to active events of less than
eight hours in duration. Second, it restricted displays of a
ceremonial nature to those "in connection with special events
and limited in duration to the period required for such events."
Third, it added an explicit prohibition against "placement on
the Green of any unattended structure." For ease in reference,
we annex a copy of the regulation, as amended, as an appendix to
this opinion.
On October 19, 2000, the Knights of Columbus and the
organization's grand knight, Michael O'Sullivan (collectively,
the Knights), applied for a permit to erect the crèche on the
Green. The application was constructively denied, although the
Board intimated that a one-day event that included the crèche
would be approved.1
Dismayed by the new regulation and the concomitant
ouster of the crèche, the Knights sued. Although they claimed
1In point of fact, a Town resident was granted a permit to
hold a "live" nativity scene and service on the Green on
December 23, 2000.
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abridgement of their free speech and free exercise rights, the
district court refused to grant a preliminary injunction.
Knights of Columbus v. Town of Lexington, 124 F. Supp. 2d 119(D. Mass. 2000). We summarily affirmed that denial in an
unpublished order.
In subsequent proceedings, the Knights attempted to
show arbitrariness in the enforcement of the new regulation.
They introduced evidence tending to prove that bleachers and a
platform truck were left unattended on the Green for several
days prior to a Patriots' Day celebration, and that an
unattended podium was allowed to remain overnight around
Memorial Day.
In due course, the district court granted summary
judgment for the defendants (the Town and various Town
hierarchs). We expedited the Knights' ensuing appeal in an
effort to resolve the matter in advance of the Christmas season.
II. STANDARD OF REVIEW
We review a grant of summary judgment de novo,
examining the record in the light most favorable to the
nonmovant and indulging all reasonable inferences in that
party's favor. Suarez v. Pueblo Int'l, Inc., 229 F.3d 49, 53
(1st Cir. 2000). We will uphold the grant of summary judgment
only when there is no genuine issue of material fact and the
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moving party is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(c). Here, the relevant facts are largely
undisputed, so our analysis focuses on the legal question of
whether either the new regulation or its application offend the
First Amendment.
III. THE FREE SPEECH CLAIM
The Free Speech Clause of the United States
Constitution lies at the heart of the Knights' appeal. We
organize our discussion of this claim in segments.
A. The Legal Framework.
The Free Speech Clause provides, in terms, that
"Congress shall make no law . . . abridging the freedom of
speech . . . ." U.S. Const. Amend. I. Under the aegis of the
Fourteenth Amendment, this prohibition applies equally to states
and their political subdivisions. See Cantwell v. Conn., 310
U.S. 296, 303 (1940). Despite the uncompromising language in
which this proscription is couched, it is not absolute.
The Supreme Court has articulated a framework for
determining whether a particular regulation impermissibly
infringes upon free speech rights. That framework dictates the
level of judicial scrutiny that is due — and that choice, in
turn, informs the nature of the restrictions on free speech that
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may be permissible in a public forum. McGuire v. Reilly, 260
F.3d 36, 42 (1st Cir. 2001).
The triage works this way. The bedrock rule is that
government may not prohibit all communicative activity in a
public forum. Perry Educ. Ass'n v. Perry Local Educ. Ass'n, 460
U.S. 37, 46 (1983). Content-based prohibitions may endure — but
only if they are justified by compelling state interests.
Capitol Sq. Rev. & Advisory Bd. v. Pinette, 515 U.S. 753, 761
(1995). Accordingly, such prohibitions engender strict judicial
scrutiny. See id. Content-neutral restrictions pose less of a
threat to freedom of expression. Consequently, content-neutral
restrictions on the time, place, and manner of speech trigger an
intermediate type of scrutiny such that they will be upheld as
long as they are "narrowly tailored to serve a significant
governmental interest, and allow for reasonable alternative
channels of communication." Globe Newspaper Co. v. Beacon Hill
Arch'l Comm'n, 100 F.3d 175, 186 (1st Cir. 1996).
Here, the Town's limitation of free speech on the Green
is not absolute: the new regulation merely prohibits one manner
of expression (unattended structures) in a particular place (the
Green) at certain times (when unconnected with an event). Since
the Town does not deny that the Knights have a free speech
interest in exhibiting the crèche or that the Green is a public
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forum, the salient question is whether the restriction is
content-based or content-neutral. It is to that question that
we now turn.
B. Content-Based or Content-Neutral?
To ascertain whether a regulation is content-based, an
inquiring court must determine whether it regulates speech
because of disagreement with the particular message that the
speech conveys. Id. at 183. The Knights concede, as they must,
that the language of the regulation is facially neutral. The
ban on unattended structures is comprehensive; it does not
discriminate among types of unattended structures, and certainly
does not single out the crèche. Thus, the Knights' argument
boils down to a plaint that the legislative history demonstrates
that the regulation's primary purpose is to prevent display of
the crèche.2
In making this argument, the Knights rely heavily on
a "free exercise" case, Church of Lukumi Babalu Aye, Inc. v.
City of Hialeah, 508 U.S. 520 (1993). There, the Supreme Court
ruled that a municipal ordinance prohibiting cruelty to animals
2 The Town, citing United States v. O'Brien, 391 U.S. 367,
383-84 (1968), argues that we should not inquire into
legislative purpose when a statute is content-neutral on its
face. Here, however, both the text of the statute and the
legislative history point toward neutrality, so we need not and
do not decide whether such an inquiry is constitutionally
required.
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was unconstitutional because it was targeted at preventing the
sacrificial rites practiced by adherents of the Santeria
religion. Id. at 547. But Hialeah is readily distinguishable
because the ordinance at issue there was riddled with exceptions
that effectively made it applicable only to Santeria worshipers.
See id. at 535. Thus, the ordinance — unlike the regulation at
issue here — was not content-neutral in its operation. See id.
For present purposes, the most that Hialeah teaches is that a
court may have to look beyond the bare language of a regulation
to determine whether its justification is content-neutral. See,
e.g., Ward v. Rock Against Racism, 491 U.S. 781, 791 (1989)
("[G]overnment regulation of expressive activity is content
neutral so long as it is justified without reference to the
content of the regulated speech."); D.H.L. Assocs. v. O'Gorman,
199 F.3d 50, 57 (1st Cir. 1999) (same).
In the instant case, there is nothing in the record
that evinces a content-based animus against the crèche. On the
contrary, the Board proposed the new regulation only after
requests for permits for alternative religious displays began to
sprout. Mindful of the strictures of the Establishment Clause,
the Board reasonably assumed that it must treat all applications
for religious displays alike, regardless of the message
conveyed. Fearing a flood of applications and a corresponding
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cluttering of the Green, the Board devised a regulation
prohibiting all unattended structures. This is a far cry from
an invidious singling-out of the crèche.3
The only inference that the record permits is that the
new regulation was conceived out of a desire to treat all
religious expression even-handedly. If the Knights feel that
the burden of the regulation falls most heavily on them, it is
perhaps because they are now held to the same standard as all
other similarly situated applicants. While the adjustment may
not be an easy one, the outcome is inescapably content-neutral.
C. Significant Governmental Interest/Narrow Tailoring.
Having determined that the regulation is content-
neutral, we now apply intermediate scrutiny to ascertain whether
it is narrowly tailored to achieve a significant governmental
interest. McGuire, 260 F.3d at 43.
The Town asserts that its interest in preserving the
historical and aesthetic qualities of the Green amply justifies
the restriction. This is a theoretically sound position. After
all, in Globe Newspaper, we upheld, against a free speech
challenge, a ban on news racks in a historic Boston
3
The Town's longstanding practice of permitting the crèche
to be displayed on the Green without a permit helps, rather than
hinders, the Town's argument. That practice shows a receptivity
to the display and, contrary to the Knights' importunings,
creates no entitlement to preferential treatment in the future.
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neighborhood. 100 F.3d at 195. We recognized there that
aesthetic preservation may warrant a content-neutral restriction
on speech in a public forum. Id. at 187. As was true in Globe
Newspaper, the Town's interest in aesthetic preservation
qualifies as a significant one. Moreover, that interest is
enhanced here by the site's designation as a national historic
landmark.
In an attempt to blunt the force of this conclusion,
the Knights argue that the regulation is not narrowly tailored
to the achievement of this aesthetic rationale. They make three
points: first, that it is not only unattended structures that
produce clutter; second, that the Town should have pursued
alternatives less restrictive than a total ban; and third, that
the crèche is aesthetically pleasing. The first two parts of
this argument are plainly misguided. The narrow tailoring
requirement "does not mandate a least restrictive means
analysis." Nat'l Amusements, Inc. v. Town of Dedham, 43 F.3d
731, 744 (1st Cir. 1995). Thus, the Town was "[not] required to
implement or experiment with other alternatives before finally
choosing the total ban." Globe Newspaper, 100 F.3d at 189 n.15.
The "narrow tailoring" requirement is satisfied as long as the
particular "regulation promotes a substantial government
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interest that would be achieved less effectively absent the
regulation." Nat'l Amusements, 43 F.3d at 744.
Here, moreover, the regulation appears entirely logical
when one recalls that it was adopted amid a concatenation of
Establishment Clause concerns. See Good News Club v. Milford
Cent. Sch., 121 S. Ct. 2093, 2103 (2001) (stating that avoiding
an Establishment Clause violation may be a compelling state
interest justifying even content-based restrictions on speech).
The Town legitimately could conclude that unattended displays
were more likely to present Establishment Clause issues than
attended ones because, for instance, a reasonable observer might
be confused as to the source of the message.4 Cf. Capitol Sq.,
515 U.S. at 778-79 (O'Connor, J., concurring). This is
significant because the context of a religious display is
crucial in determining its constitutionality. Compare County of
Allegheny v. ACLU, 492 U.S. 573, 621 (1989) (forbidding display
of a crèche in a county courthouse), with Lynch v. Donnelly, 465
4
Although the plurality opinion in Capitol Square proposed
a per se rule to the effect that the government may not violate
the Establishment Clause by providing a forum for private
religious expression, see Capitol Sq., 515 U.S. at 770, a
majority of the Justices rejected this limited abandonment of
the endorsement analysis. See id. at 787 (Souter, J., with whom
O'Connor and Breyer, JJ., joined, concurring); id. at 799(Stevens, J., dissenting); id. at 817-18 (Ginsburg, J.,
dissenting).
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U.S. 668, 685 (1984) (permitting inclusion of a crèche in a
municipality's outdoor holiday display).
We note, too, that the Supreme Court has explicitly
indicated that a total ban on unattended structures in a public
forum would pass constitutional muster. In Capitol Square, a
majority of the Justices (the plurality, plus Justices Souter
and Stevens) specifically agreed that "[the state] could ban all
unattended private displays" in a public forum. Id. at 783(Souter, J., concurring); accord id. at 761 (plurality opinion);
id. at 803 (Stevens, J., dissenting). Various decisions of the
courts of appeals are to like effect. E.g., Am. Jewish Cong. v.
City of Beverly Hills, 90 F.3d 379, 384 (9th Cir. 1996) ("The
city constitutionally could ban all unattended private displays
in its parks."); Congregation Lubavitch v. City of Cincinnati,
923 F.2d 458, 460 (6th Cir. 1991) (similar); Lubavitch Chabad
House, Inc. v. City of Chicago, 917 F.2d 341, 347 (7th Cir.
1990) (similar). Finding no reason why the case before us
demands a different outcome, we hold that the total ban on
unattended structures is both content-neutral and narrowly
tailored to achieve a substantial governmental interest. It is,
therefore, constitutionally permissible.
As to the Knights' claim that the crèche is
aesthetically pleasing, the Establishment Clause makes clear
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that the Town was bound to consider a range of potential
religious displays when it envisioned the future of the Green.
Thus, the aesthetics of the crèche, in the abstract, are
irrelevant. The Town rationally could have decided that some of
the requested displays, or the sheer number of potential
displays, would be inconsistent with the aesthetic quality of
the Green. Even if the crèche were more beautiful than all the
others — a matter on which we take no view — the Town was not at
liberty to allow the crèche while at the same time prohibiting
other religious displays.
D. Alternative Avenues of Communication.
As a final matter, the regulation does not unduly
restrict the Knights' free speech rights because they have
adequate alternative avenues of communication available to them.
See McGuire, 260 F.3d at 43; Globe Newspaper, 100 F.3d at 186.
The Knights remain free to display the crèche, either during the
course of an event on the Green or at any time on nearby private
property.5 To be sure, the Knights argue that these are not
adequate alternatives — an event would be too transitory and
placing the crèche on private property would not convey the same
message. But the message that they suggest is suppressed is
5
The record shows that one of the two churches facing the
Green is willing to have the crèche displayed on its front lawn
for the customary six-week interval.
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that the crèche belongs "at the center of public life in the
Town of Lexington." This resupinate reasoning turns the
constitutional standard upside-down. Although the Constitution
protects private expressions of beliefs, it does not authorize
— and sometimes even forbids — citizens' attempts to invoke
public backing of their beliefs. The Knights have no
constitutional right to communicate a message of public support
for the crèche.
It is also notable that the crèche is not completely
banned from the Green. Like any other ceremonial display, it
may appear on the Green in conjunction with an active event for
up to eight hours. The Knights have not explained why such a
display is impractical, instead stating that the Town has no
right to dictate to them how they must express their private
beliefs. Yet the Town has issued no general ukase regarding
private religious observances; only religious displays on a
single strip of public land are affected. In a forum of this
kind, it has long been established that government may impose
reasonable restrictions on the manner of speech. See, e.g.,
Capitol Sq., 515 U.S. at 761. In adopting the regulation, the
Town has done no more than exercise its right to manage its
property in the manner it deems desirable without crossing the
constitutional line.
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E. Consistency in Application.
The Knights' next argument is that the amended
regulation has been applied so inconsistently that it gives
municipal officials unfettered discretion (and, thus, violates
the rule announced in Cox v. Louisiana, 379 U.S. 536 (1965)).
In Cox, the Court struck down a municipal ordinance prohibiting
street parades and meetings on the ground that the ordinance
effectively gave local officials unbridled discretion to permit
some demonstrations and disallow others. Id. at 557. The case
stands for the proposition that a neutral ordinance may violate
the First Amendment if it invites uneven application.
To demonstrate that the regulation here at issue has
been enforced selectively, the Knights presented evidence of
other unattended structures that have been seen on the Green
since the new regulation was adopted, e.g., bleachers and a
platform truck were left on the Green prior to a Patriots' Day
celebration, and a podium appeared on the Green some days prior
to a Memorial Day event.
The most obvious flaw in this construct is the lack of
any evidence that these structures were erected by private
parties. This gap is critical because the regulation was never
intended to apply to actions by the Town itself. In fact, the
text of the regulation, as adopted by the Board, prohibits
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"[p]lacement on the Battle Green of any unattended structure by
any private party" (emphasis supplied). Even though these last
four words later were omitted from the printed regulation
through an apparent clerical error, it is reasonable to
interpret the regulation as applying only to private parties.
In fact, the entire subsection in which the regulation resides
(quoted in the Appendix) is most plausibly read as applying only
to private conduct. For example, we do not believe that the
provision prohibiting "removal[] or disturbance of any . . .
monument, statue, marker, animal or plant" reasonably could be
construed to prevent regular maintenance, repair, replacement,
or landscaping done by the Town. Similarly, the prohibition on
the use of firearms is most sensibly understood as not
encompassing police officers acting in their official capacity.
Because the Town is exempt from the ban on unattended structures
on the Green, the Knights' claim of selective enforcement fails
for evidentiary insufficiency.
IV. THE FREE EXERCISE CLAIM
The Free Exercise Clause also is made applicable to the
states (and, therefore, to municipalities) through the
Fourteenth Amendment. See Cantwell, 310 U.S. at 303. It
provides that "Congress shall make no law . . . prohibiting the
free exercise [of religion] . . . ." U.S. Const. Amend. I. In
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interpreting this language, the Supreme Court has recognized
that the exercise of religion sometimes may involve "performance
(or abstention from) physical acts," and that the government may
violate the right to free exercise if it seeks "to ban such acts
or abstentions only when they are engaged in for religious
reasons." Employment Div., Dep't of Human Res. v. Smith, 494
U.S. 872, 877 (1990). Even so, "a law that is neutral and of
general applicability need not be justified by a compelling
governmental interest even if the law has the incidental effect
of burdening a particular religious practice." Hialeah, 508
U.S. at 531.
The Knights' current reliance on this doctrine is
misplaced. As we already have determined, see supra Part
III(B), the ban on unattended structures is content-neutral in
every way. For the reasons elaborated in our previous
discussion, we are bound to conclude that the regulation does
not discriminate against a particular religion or religious
practice. See Hennessy v. City of Melrose, 194 F.3d 237, 244
n.1 (1st Cir. 1999) (explaining that private beliefs do not
excuse a party from complying with a law of general
applicability). Hence, the Knights cannot rewardingly invoke
the Free Exercise Clause in their attack on the regulation.
V. CONCLUSION
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We do not live in a utopian world, and the myriad
guarantees that the Constitution provides sometimes can operate
in tension with one another. So it is here: the Establishment
Clause pulls in the direction of separating church and state,
while the Free Exercise Clause pushes in the direction of
permitting the unfettered expression of religious doctrine. In
our view, the Town has reconciled these competing centrifugal
and centripetal forces in a constitutionally acceptable manner,
holding the delicate balance steady and true. Admittedly, its
solution — the banning of all unattended structures from the
village green — inhibits some speech, but the solution is
content-neutral, narrowly tailored to suppress no more speech
than necessary, and leaves open ample alternative avenues of
communication. No more is exigible to withstand the
intermediate level of scrutiny that the First Amendment imposes
here.
We need go no further. We hold that the Town's ban on
unattended structures on the Green is a permissible "time,
place, and manner" restriction that operates without reference
to the content of speech, and that the aesthetic preservation of
so historic a landmark furnishes an appropriate basis for
imposing this narrowly tailored restriction in a public forum.
Because the challenged regulation leaves open many other means
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of communication for religious speech and there is no competent
evidence of selective enforcement, we reject the Knights' free
speech claim. On much the same analysis, we likewise reject the
Knights' free exercise claim. Consequently, we hold that the
lower court did not err in granting summary judgment for the
defendants.
Affirmed.
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Appendix
RULES AND SPECIFICATIONS REGULATING THE USE OF THE BATTLE GREEN
The following rules and regulations have been adopted in accordance with the General By-Law, Article
XXV, Section 225, "Protection of the Battle Green", as amended. If these regulations or portions thereof,
conflict with the By-Law, the By-Law shall take precedence.
1. DEFINITIONS
a. "Audio device" means any radio, television set, musical instrument, or other device that produces
noise.
b. "Disorderly conduct" means any action intended to cause inconvenience, annoyance, or alarm, or
which recklessly creates a risk thereof; fighting, threatening or violent behavior; unreasonable noise;
abusive language directed toward any person present; wrestling in vicinity of others; throwing of
breakable objects; throwing of stones; or spitting.
c. "Powerless flight" means any device used to carry persons or objects through the air; for example,
sailplanes, gliders, balloons, body kites, hand gliders.
d. "Public use limit" means the maximum number of people or the amount, size, or type of equipment
permitted on the Battle Green at one time, as established by the Board of Selectmen.
c. "Special event" means demonstrating, picketing, speechmaking, marching, holding of vigils, and all
other similar forms of conduct which involve the active communication or expression of opinions or
grievances, engaged in by one or more persons, the conduct of which has the effect, intent or
propensity to draw a crowd or onlookers.
f. "Wet turf" shall mean any natural condition that would make the Green vulnerable to excessive damage
by heavy wear or use; for example, heavy rains, reseeding, drought conditions.
g. "Non-permit activities" shall mean activities that may be engaged in without a permit issued by the
Board of Selectmen.
2. NON-PERMIT ACTIVITIES
Subject to the restrictions in these rules and regulations, permits shall not be required for:
a. Conduct that does not cause public inconvenience, annoyance, or alarm.
b. Picnicking restricted to benches only and to groups of no more than five people.
Picnicking on the Green by bus tours or similar groups is forbidden.
c. The gathering of groups on the Battle Green for the sole purpose of exploring and enjoying its history,
and which do not remain for more than four hours.
d. Playing of audio devices at a reasonable volume.
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e. The playing of games that do not:
i. exceed three players; or
ii. damage the Green's physical condition; or
iii. disturb or inconvenience those visiting the Green for historic interest; or
iv. constitute any type of disorderly conduct.
3. PERMIT REQUIRED ACTIVITIES
a. The purpose for requiring permits for certain activities is to promote the use of the Battle Green in a
manner consistent with its nature and history; to protect the Battle Green from harm; to ensure
adequate notice of the event so that arrangements can be made to protect the public health and safety
and to minimize interference with the event by the public.
b. Permits are required for any of the following activities, singly or in combination:
i. Any group activity reasonably likely to exceed the public use limit established by the Board
of Selectmen.
ii. Special events, public meetings, assemblies, gatherings, demonstrations, parades, and other
active public expressions of interest, not to exceed eight hours in duration.
iii. Pageants, reenactments, regattas, entertainments, or other as public spectator attractions.
iv. Displays of a ceremonial nature in connection with special events and limited in duration to
the period required for such events.
v. Use of public address system, electrical lighting, or other electrical devices.
vi. Distribution of printed matter other than commercial advertising.
vii. Possession of firearms if unloaded or packed in such a way as to prevent their use.
viii. Possession of explosives, as long as individuals or groups conform to Federal, State, and
local laws governing such possession.
ix. Use or possession of fireworks or firecrackers.
4. IMPERMISSIBLE ACTIVITIES
The following activities are strictly prohibited:
a. Any group activity that exceeds the public use limit established by the Board of Selectmen for the
Battle Green.
b. Possession, destruction, injury, defacement, removal, or disturbance of any building, sign, equipment,
monument, statue, marker, animal or plant.
c. Distribution or display of commercial advertising; or soliciting of business; or any other commercial
transactions.
d. Remaining on the Battle Green for more than four hours.
e. Abandonment of any vehicle or personal property.
f. Unreasonably loud operation of audio devices.
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g. Delivery of any person or thing by parachute or helicopter.
h. Powerless flight activities.
i. Begging.
j. Disorderly conduct.
k. Use of firearms.
l. Use of metal detecting device for personal use.
m. Gambling of any form or operation of gambling devices.
n. Picnicking except as provided in 2b.
o. Use of roller skates and skateboards.
p. Placement of the Battle Green of any unattended structure.
5. PERMIT PROCESS
a. Application for permits to conduct activities on the Battle Green, specified in 3, above, shall be filed
no later than two weeks prior to the requested date. Late and/or incomplete applications will be
considered at the discretion of the Board of Selectmen.
b. Permit applications shall include the following information:
i. Name and phone number of a responsible contact.
ii. Date and time of event.
iii. Nature of event.
iv. Expected number of participants, spectators, and vehicles.
v. Duration of event.
vi. Statement of equipment and facilities to be used.
vii. Section of the Green desired.
c. The responsible party is to keep the permit, which must be available for inspection upon request. The
responsible party may be required by the Board of Selectmen, as a condition of issuing the permit, to
pay for detail police officers if the Board determines that such officers are necessary for public safety.
d. Permits are issued upon express condition the Green is to be left in an orderly fashion.
e. Permits are non-transferable; and are only valid for date and time specified.
f. A permit shall be revoked if a sanctioned event engages in impermissible activities and may be
revoked if the permit group engaged in activities that are not within the specification of the permit.
g. The Board of Selectmen may alter a request by setting reasonable conditions and restrictions as to
duration and area occupied, as are necessary for protection of the area and public use thereof.
h. Wet turf conditions may supersede the use of a granted permit at the discretion of the Board of
Selectmen to protect the condition of the Battle Green.
6. GROUNDS FOR DENIAL OF PERMIT REQUEST
a. Prior applications for permit for conflicting schedule has been made or will be granted.
b. Event presents a clear and present danger to public health or safety.
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c. Event is of such nature or duration that it cannot reasonably be accommodated in the area applied for;
or the expected number of participants exceeds the public use limit.
d. Event will, in the opinion of the Board of Selectmen, cause unacceptable interference with use of the
Green by the general public.
e. Event is requested for a date that conflicts with official celebrations of the Town.
f. Event is more appropriately held at other available Town facilities, such as recreational facilities.
Approved by the Board of Selectmen July 15, 1986
Amended July 24, 2000
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