Analysis: Why FIRE is suing a Pennsylvania county for banning political speech in a public park

This week, FIRE sued a Pennsylvania county for stopping members of the public from talking politics in a public park. Apparently you can run in Dauphin County’s Fort Hunter Park — just not for office. 

On June 11, 2022, Kevin Gaughen and Dave Kocur went to the park to collect signatures for Dave’s first-ever bid for public office. That day, the county was hosting an event featuring local music, food, and drinks in the public park. As members of a recently formed third party in Pennsylvania, Kevin and Dave needed to collect 300 signatures to get Dave on the ballot. The open area of the park outside the event seemed like the perfect place to get their message out to voters and circulate their ballot petitions. 

And it should have been. 

The Supreme Court has long made clear that circulating a petition is core political speech and public parks are traditional public forums — public property that “by long tradition or by government fiat have been devoted to assembly and debate.” But Dauphin County officials apparently believe this well-established legal principle does not apply to them. The county’s Parks and Recreation Director Anthea Stebbins intervened, ordering Kevin and Dave to stop collecting signatures, claiming political activity is banned in Fort Hunter Park. 

Dauphin County’s ban on political activity in a public park violates the First Amendment. In a traditional public forum like a public park, speech “is afforded maximum constitutional protection.”

In late 2022, FIRE stepped in. 

On behalf of Kevin and Dave, FIRE sent Dauphin County and Director Stebbins a letter informing them of the clear constitutional protections for political speech in public parks and asking the county to lift the ban. But the county doubled down. Dauphin County insists that Fort Hunter Park “is not open to political activity — by anyone!” Given the longstanding precedent that the First Amendment ensures that public parks may be used “for purposes of assembly, communicating thoughts between citizens, and discussing public questions,” this policy cannot stand.

So we did what we do best and sued Dauphin County and its director of parks and recreation. We also asked the court to stop the county from enforcing its unconstitutional ban on political expression while the case is pending. 

FIRE vs. Parks & Rec: FIRE threatens lawsuit after Pennsylvania park officials stop political candidate from collecting signatures in a public park

Press Release

Today, the Foundation for Individual Rights and Expression calls on Dauphin County to immediately allow visitors to talk politics in Fort Hunter Park — or face a lawsuit.

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Our complaint asks the court for three things. First: a declaration that the ban on political activity in Fort Hunter Park violates the First Amendment. Second: an order preventing Dauphin County from enforcing that ban. Third: monetary damages from the county and Director Stebbins, for their past violations of Kevin and Dave’s rights. 

Dauphin County’s ban on political activity in a public park violates the First Amendment. In a traditional public forum like a public park, speech “is afforded maximum constitutional protection.” Kevin and Dave’s speech falls squarely within this protection. Not only has the Supreme Court made clear the First Amendment is “at its zenith” when protecting political expression, but the Court characterized collecting signatures as “core political speech.”

Dauphin County has tried to justify its ban by pointing to the legal document which transferred the Fort Hunter Park property from private ownership to the county in 1980. That document, according to the county, requires that political activity not take place on park grounds. But the Supreme Court has also made clear that the government cannot use private restrictions on public property to evade the Constitution. Because public parks have been havens for free speech for as long as anyone can remember, the First Amendment protects the right of the public to use park land for expressive purposes.

Additionally, although the government may impose reasonable regulations on how and when park visitors may express themselves — for example, to prevent excessive noise — it cannot constitutionally ban speech based on its topic, a concept known as “content discrimination.” But that is precisely what the county has done in Fort Hunter Park by prohibiting visitors from discussing politics. Content-based regulations on speech are presumptively unconstitutional, and the government can only impose such a regulation if it is narrowly tailored to serve a compelling government interest. The county’s broad ban on protected speech is not narrowly tailored, and it should be struck down.

Late last year, we gave Dauphin County the chance to do the right thing and avoid a lawsuit by lifting its ban on political activity in Fort Hunter Park. Dauphin County refused. Now, as promised, FIRE is suing on Kevin and Dave’s behalf to vindicate their First Amendment rights, and the rights of all Pennsylvanians, to talk politics in public parks.