Last week, a court in Missouri ruled that a village’s ordinance prohibiting commercial activity—including commercial photography—in a park was a constitutional restriction on speech.

The Village of Twin Oaks, Missouri had an ordinance that prohibited the use of a village park for commercial purposes.  The park was posted with signage that read:  “No commercial activity, including commercial photographers.”  The stated purpose for the village’s regulation was to ensure public safety and fair use of the park.  Josephine Havlak was a professional photographer who takes pictures for wedding and portrait purposes.  After Havlak filed suit claiming that the ordinance was a content based and unconstitutional restriction on speech, the village modified the ordinance to allow commercial photographers to use the park in exchange for a $100 permit fee.

In the case, Havlak argued that, while the ordinance restricted commercial photographers from the use of the park, amateur photographers could use the park freely, and thus the ordinance was underinclusive and not narrowly tailored to the government’s asserted interests.  Havlak also argued that the restriction was content based.  The court found, however, that the distinction between commercial photography and amateur photography was a permissible distinction, and that the village had demonstrated that commercial photographers’ use of the park was more disruptive than amateur photographers’ use of the park.  Thus, according to the court, the ordinance was narrowly tailored to a significant governmental interest.  The court further agreed that the $100 permit fee was not excessive and bore a reasonable correlation to the costs incurred by the village for permitting commercial activity in the park.  Interestingly, the court refused to weigh in on whether commercial photography was protected speech, which is the subject of some division among the federal courts.

Josephine Havlak Photographer, Inc. v. Vill. of Twin Oaks, No. 4:15CV00518, 2016 WL 3753689 (E.D. Mo. Jul. 14, 2016).

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Photo of Brian J. Connolly Brian J. Connolly

Brian Connolly represents public- and private-sector clients in matters relating to zoning, planning, development entitlements and other complex regulatory issues.  Brian’s practice encompasses a broad range of land use matters including zoning compliance, rezonings and other regulatory amendments, planned-unit developments, development agreements, private covenants and restrictions, land use and zoning litigation, initiatives and referenda associated with land use approvals, and real estate transactions.  Brian additionally specializes in the First Amendment and land use issues associated with outdoor sign and advertising regulation, and fair housing matters in local planning and zoning.