Twin Oaks Park, the site of the photography dispute. Source:

Last year, we reported on a case in Twin Oaks, Missouri, where a local wedding photographer, Josephine Havlak, challenged a town ordinance limiting commercial activity in a public park.  Late last month, the Eighth Circuit Court of Appeals affirmed the district court’s denial of the photographer’s motion for preliminary injunction, finding the ordinance content neutral and constitutional as applied to the photographer.

The facts of the case can be found on our post from last year.

On appeal, the Eighth Circuit first evaluated whether the plaintiff’s claim was an as-applied challenge or a facial challenge to the entire ordinance.  A facial challenge can result in invalidation of the entire ordinance, while an as-applied challenge only prohibits enforcement of the ordinance against the plaintiff.  Because the photographer failed to provide any evidence that third parties would be affected in a manner different from her, the court determined that Havlak’s challenge was an as-applied challenge.  Thus, the court only analyzed the ordinance’s application to the plaintiff.

Moving on, the court found the ordinance in question to be content neutral.  Because it limited commercial activity in the park to a handful of photographer permits, in the words of the court:  “It applies equally, for example, to commercial photographers and to hot dog vendors.”  The court also found the ordinance to be neutral in its purpose.  Although the plaintiff urged the court to conclude that the distinction between commercial and noncommercial photographers was content based, the court refused to do so.

Analyzing the regulation for narrow tailoring, the court noted four specific arguments presented by the photographer as undermining the ordinance’s tailoring:  (1) the ordinance applied to groups of all sizes, including small groups; (2) the ordinance applied to the entire park, not just the most congested parts; (3) the 2-day (for small groups) and 14-day (for large groups) application periods; and (4) the application fee associated with permitting.  The court rejected each of these arguments, and found the ordinance reasonably tailored to the government’s interest in controlling congestion in the park.  Specifically, the court found that its application to small groups controlled the possible agglomeration of small-group photography in the park, its coverage of the entire park served the interest in preventing congestion, the advance-notice requirement for permitting a minimal intrusion on photographed events, and the fee was designed to defray administrative costs.

Finally, the Eighth Circuit found the existence of ample alternative channels for communication.  The court noted the existence of several other pleasant, natural locations in the St. Louis region in which Havlak could conduct her work.  The court also denied Havlak’s unconstitutional vagueness claim, finding the ordinance to be sufficiently clear in its standards for permitting.

Josephine Havlak Photographer, Inc. v. Village of Twin Oaks, ___ F.3d ___, 2017 WL 3159678 (8th Cir. Jul. 26, 2017).

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.