ST. LOUIS — The U.S. Court of Appeals for the Eighth Circuit has found that an ordinance prohibiting all commercial activity in a Village of Twin Oaks neighborhood park without a permit to be constitutional. 

In a ruling filed on July 26, a three-judge panel rejected a challenge to the ordinance brought by commercial photographer Josephine Havlak, who sued the village, alleging that the law violated her First Amendment free-speech rights.

"Because the village ordinance is content neutral, has been narrowly tailored to serve the village’s significant governmental interests, leaves ample alternatives for Havlak to communicate her message and does not provide the village with unbridled discretion, we find the permit process survives Havlak’s challenge," The appeals court said in the ruling.

The panel, comprised of justices Lavenski Smith, Morris Arnold and Bobby Shepherd, affirmed a ruling made by U.S. District Judge Audrey Fleissig in the Eastern District of Missouri.

According to the ruling, the legislative intent of the permit process at the 11-acre park was to "balance the interest of the other park users... so that the photographer receives the exclusive use of certain areas in which they wish to do their shoot so that they can perform their shoot efficiently."

Further, village board member Lisa Eisenhauer was quoted in the ruling, stating that “we ask for a permit because if we don’t have a way to regulate not having five or six wedding groups down there at the same time, then we have congestion in our park, which we have found to cause problems.”

Even though Havlak challenged the constitutionality of the ordinance and appealed the adverse ruling she received at district court, she had never actually applied for a commercial permit at the village park, according to the appellate court ruling.

Havlak, in part, argued that because the ordinance burdens commercial photographers and not non-commercial ones, the village burdens her message of “family, peace, tranquility and love.”

“There is no evidence that the village shows antipathy for these values, and the ordinance does not restrict either commercial or non-commercial photographers from expressing these ideals,” the appeals court said in the ruling.

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