Is a National Park violating the First Amendment?

Today, after snorkeling at the nearby Honaunu Bay, I visited the Pu’uhonua O Honaunau National Historical Park, a small but historic abode of Hawaiian royalty and a “place of refuge”.  As the Wikipedia entry notes,

The historical park preserves the site where, up until the early 19th century, Hawaiians who broke a kapu (one of the ancient laws) could avoid certain death by fleeing to this place of refuge or puʻuhonua. The offender would be absolved by a priest and freed to leave. Defeated warriors and non-combatants could also find refuge here during times of battle. The grounds just outside the Great Wall that encloses the puʻuhonua were home to several generations of powerful chiefs.

It was quite intriguing, and among the smallest of America’s national parks. As I was driving away, however, I noticed this in the parking lot within the Park boundaries:

Yes, you got it: two Jehovah’s Witnesses in full proselytizing mode, complete with help-yourself leaflets.

I couldn’t help myself: I went up to the two men in the photo and asked them if they had permission to set up shop within a National Park. They said “yes”, and when I asked them who gave them permission, they replied, “the park rangers” and pointed to the ranger station just across the road.

I could not do otherwise: I went into the ranger station to try to verify what the Witnesses had told me. I encountered two young rangers and asked them if the proselytizers did indeed have permission to set up religious shop within park boundaries. They were a bit confused, but said that there was some “First Amendment” rule that parks could indeed set aside space for this.

That confused me even more, for although it’s possible that one could demonstrate within Park boundaries and express free speech, the First Amendment also prohibits government entanglement with religion. And if anything represents government entanglement with religion, the JW literature stand does. But the two young rangers said they’d get someone higher up to answer my question.

An older woman ranger, whose name I can’t recall, came out to answer my question. When I told her what I wanted, she said that I should step outside the station and she would answer me. I found that very odd: why couldn’t she answer my question inside the ranger station, and in the presence of her subordinates? Not only that, but she then locked the station from the outside with a key.

She then explained to me what the younger rangers had told me: that there was a provision, determined by each park separately, to set aside part of National Park space for people to exercise their First Amendment rights. When I explained to her that the First Amendment prohibited entanglement of religion and government, and that the JW stand sure looked like such entanglement, she just repeated herself. (This ranger, for purposes of identification, was on duty at about 11:30 a.m on July 3.)

I asked if any religion other than Jehovah’s Witnesses had ever had a station for proselytizing in this park. She said that, as far as she could remember, no.

She told me that she would email me the information about why proselytizing was allowed on Park property, and so I gave her my name and email address. I also told her I was on the Honorary Board of Directors of the Freedom from Religion Foundation (FFRF), and didn’t think what was happening was constitutional.

Of course it may be legal, and I await the material the ranger promised send me. But even if it is legal, it’s still palpably unconstitutional. No religion should have the right to set up shop in a National Park and distribute its literature to the visitors. That is clearly excessive involvement of government (which runs the National Parks system) with religion.

Stay tuned. I have of course reported this to the FFRF and await the ranger’s email. But I sure didn’t think I’d get involved in a First Amendment kerfuffle on my vacation!

59 Comments

  1. Becky
    Posted July 4, 2019 at 9:06 am | Permalink

    They are at colleges and libraries all over the country

  2. Mark Cagnetta
    Posted July 4, 2019 at 9:10 am | Permalink

    They, the JW, also set up outside of our county library, which I always thought was suspect. They never engage anyone, but they still don’t belong on government property.

  3. Randall Schenck
    Posted July 4, 2019 at 9:13 am | Permalink

    Very nice job. PCC gets the citizen of the day award and a parking space. My guess is, soon as the park gets that letter from FFRF, the free loading will end.

  4. Charles Sawicki
    Posted July 4, 2019 at 9:15 am | Permalink

    She is probably a JW. Having known several who left the cult, they earn credit for proselytization and spend hours a day pestering people.

  5. littleboybrew
    Posted July 4, 2019 at 9:22 am | Permalink

    They certainly have a right to be in the park and I suppose as long as they are not actively bothering people (but merely talking with those that engage them) then the action is permissible. However pitching a tent in the parking lot is a bit much. I think they should be tossed out not because of any religious message, but that they are using space in the park that is reserved for visitors who wish to see the park.

    • Randall Schenck
      Posted July 4, 2019 at 9:40 am | Permalink

      The Thing is – church & state. They are a church and they are illegally camping on a state park. They can do this crap at an airport until they get thrown out but this is unconstitutional.

  6. TJR
    Posted July 4, 2019 at 9:32 am | Permalink

    I feel really sorry for JWs. We have them hanging around the town centre here with their stand like the one pictured, rain or shine, looking bored out of their minds. I’ve never once see anybody talk to them.

  7. GBJames
    Posted July 4, 2019 at 9:45 am | Permalink

    I’m unclear how it might be both legal and unconstitutional. In any case, I wonder what would happen if a pair of The Satanic Temple set up a table there.

    • Wunold
      Posted July 4, 2019 at 12:33 pm | Permalink

      My first thought after reading this was, “someone should tell the Satanic Temple about it.” 🙂

      • samoffat@28gmailcom
        Posted July 4, 2019 at 5:21 pm | Permalink

        YES!

  8. Charles Sawicki
    Posted July 4, 2019 at 9:51 am | Permalink

    I hope that these activities on government land where prey upon people can be stopped. The JWs are an extremely controlling, repressive cult that make the lives of anyone who leaves miserable. They carry out shunning of non-compliant members which ends with kicking them out and enforcement of the cutting of ties with family who remain. Like the Catholics they have a huge problem with sexual abuse by leaders and senior members that their doctrines help to cover up.

  9. Curtis
    Posted July 4, 2019 at 9:53 am | Permalink

    If a small space is set up for ALL views, then this has nothing to do with church and state. In other words, if I can pass out pamphlets about bird watching, knitting and ANY religion, there is no constitutional question.

    If is only questionable if religion in general or specific religions are favored.

    • Posted July 4, 2019 at 12:18 pm | Permalink

      That’s what I would say with the additional proviso that all groups must not harass park attendees nor interfere with the operations etc. of the park.

      (Think Hyde Park Corner in London.)

      Also, I’ve been told that the JWs are really hurting moneywise so have drastically changed their theology and ramped up their prosletyzation.

  10. Marlene Zuk
    Posted July 4, 2019 at 9:54 am | Permalink

    I’ve noticed them at other Hawaii National Parks, including Volcanoes. I too wondered how it could possibly be legal, but didn’t have the wherewithal to think of who to contact. Thanks for pursuing it.

  11. rickflick
    Posted July 4, 2019 at 10:06 am | Permalink

    I’m glad you followed you uncontrollable urges to inquire. Although, as you make clear, you could not have done otherwise.

  12. Randall Schenck
    Posted July 4, 2019 at 10:14 am | Permalink

    I would suggest that many of the comments here are made with little knowledge. Please joint FFRF and you will receive a very cheap education on the Constitution and the separation of church and state. FFRF will send you a monthly newspaper showing you hundreds of attacks and attempts by religious groups to trespass on government property. Madison and Jefferson would be very disappointed with the idea that these trespasses are okay.

  13. Posted July 4, 2019 at 10:25 am | Permalink

    Peculiar behavior by the older woman ranger. Perhaps she was locking down in case you went whacko. Instead she should be shooing the real whackos out of the NP parking lot.

  14. ThyroidPlanet
    Posted July 4, 2019 at 10:28 am | Permalink

    Sub

    • ThyroidPlanet
      Posted July 4, 2019 at 10:28 am | Permalink

      Sub

  15. Hempenstein
    Posted July 4, 2019 at 10:37 am | Permalink

    Couldda been worse, I guess. One of the last times I was up at Big Meadows (Shenandoah NP, Skyline Drive, one of my favorite places since about age 5), we took the very short hike up to Blackrock, beside the Lodge, to watch the sunset. Normally all’s peace and quiet there, but instead, this time, the highschool-aged contents of a church van were there with their “leader,” who continued rather loudly to harangue/exhort his charge that “and you must Praise the Lord. You must PRAISE him.” Never any reason why. No mention of the sunset. He just kept repeating the Praise business with nothing in-between. We thought he’d eventually shut up, but finally we gave up and left.

  16. TJR
    Posted July 4, 2019 at 10:38 am | Permalink

    Jerry is obviously just a suppressive person.

    Or is that the wrong lot?

  17. Pelmon
    Posted July 4, 2019 at 10:42 am | Permalink

    To prohibit the JW but to permit for example the Humane Society is what would be contrary to the first amendment. The park has set aside an area for pamphlets, booths, etc. That being done it would be unconstitutional to forbid a group on the basis of religion. The park could I presume ban all such displays, but what it cannot do is filter them on the basis of religion.

  18. Bob Randall
    Posted July 4, 2019 at 10:49 am | Permalink

    I am a retired Park Ranger and can tell you that all National Park Service areas where I have worked at had “First Amendment areas”. They were always in a location off to the side where other visitors could see them and engage them or walk on by. These were designated locations where anyone could exercise their FA rights provided they obtained a permit. The permit would define the conditions such as boundaries and making it clear that other visitors could not be prevented from visiting their park. Unless these JW’s were getting in your face, using a bull horn, or making their pamphlets into paper airplanes to throw at you, they were not doing anything wrong. This is not an entanglement of religion and government, nor is it the government showing a preference for religion. If you want to promote an issue under your FA rights, get a permit.

    • uommibatto
      Posted July 4, 2019 at 11:06 am | Permalink

      In that case, as someone else said in the comments, a group should apply for a permit for a Satanic kiosk, or one for the Flying Spaghetti Monster. Or, to keep it Abrahamic, why not a Muslim display?

      Whomever is responsible for approving these permits (the local ranger? this woman’s higher-ups?) then would undoubtedly be OK with this exercising of our First Amendment rights. We could then have a whole Farmer’s Market of religious tents at a National Historic Park.

      But what if they decided to turn down the application for a Muslim display? OK, now it’s time for legal action…

      • Pelmon
        Posted July 4, 2019 at 11:25 am | Permalink

        Yes we could. That is what free speech means: people who disagree with you get to speak too.
        And yes, if they turned down a Muslim group just for being Muslim that would be time for action.

    • Randall Schenck
      Posted July 4, 2019 at 11:23 am | Permalink

      I believe you are wrong on the law here. You might be seeing that old free speech excuse used but that is just a dodge. I will say again – separation of church and state. If the public school decided to set aside a free speech area on the playground, I guess the churches could move in and start recruiting. The idea that religion can park on your national park and pass out literature is unconstitutional. What you should have been doing is turning them in, getting rid of them and make more room for tourism.

      • BJ
        Posted July 4, 2019 at 6:26 pm | Permalink

        It’s not a dodge. The laws surrounding free speech not condoned, expressed, or supported by the government do not suddenly change when religion is the speech in question. See Boardley v. United States Department of Interior. https://caselaw.findlaw.com/us-dc-circuit/1534174.html
        Even better, that case is specifically in regard to national parks. The dodge here is the expression “separation of church and state.” This does not mean that religious speech can never be expressed on state-owned property.

        I am not positive that this has not been overruled, but have found zero evidence that it has been.

    • Posted July 4, 2019 at 11:36 am | Permalink

      Bob,

      Do you know if NPs are required to have First Amendment areas?

  19. BJ
    Posted July 4, 2019 at 10:52 am | Permalink

    I want a lawyer like Ken to chime in here with precedent, but, from my point of view, so long as it’s a specific spot where anybody can exercise the right to express their beliefs, it doesn’t seem like a problem. The government is neither condoning nor funding the message. Is a Muslim allowed to lay down a rug and pray in a national park? Of course, the answer is yes. If he begins telling people about his religion as they walk by, or if he merely puts up a sign in the particular place set aside for these activities saying, “ask me about my religion,” do his actions then become unconstitutional?

    I think that, as long as what the woman said is honest and this specific space is set aside for any person to express themselves with no favoritism shown by the park, then there is no issue.

  20. phar84
    Posted July 4, 2019 at 11:23 am | Permalink

    Similar to any religious invocation in a State House, instead of setting aside time, space is set aside in the parks.

  21. Posted July 4, 2019 at 11:26 am | Permalink

    I found this.

    https://www.nps.gov/puho/learn/management/first-amendment-free-speech-areas.htm

    Given that it is Park policy to have such areas, I suppose it would be unconstitutional to control the content of the speech.

  22. Jenny Haniver
    Posted July 4, 2019 at 12:11 pm | Permalink

    I find that for years Jehovah’s Witnesses have been allowed to set up proselytizing tables in several national parks.

    Protesting is probably futile. If this ruling has been passed religious groups don’t even need a permit https://www.federalregister.gov/documents/2018/08/15/2018-17386/special-regulations-areas-of-the-national-park-system-national-capital-region-special-events-and

    Another relevant link https://www.scotusblog.com/2018/08/judge-kavanaugh-and-freedom-of-expression/

    • Randall Schenck
      Posted July 4, 2019 at 12:52 pm | Permalink

      You do well to cover us up with a massive amount of regulations and reading but I see nothing here specific to allowing religious event or recruitment on federal or state property. If you could direct us to the specific place this is covered please do.

      • Steve Gerrard
        Posted July 4, 2019 at 1:27 pm | Permalink

        “In Boardley v. U.S. Department of Interior, Kavanaugh joined an opinion invalidating National Park Service rules that required permits and limited speakers to certain free speech areas.”

        Boardley “attempted to distribute free tracts discussing the Gospel of Jesus Christ within a “free speech area” of Mount Rushmore National Memorial.”

        So yeah, our friend Kavanaugh said you don’t need a permit if the number of individuals is less than 25. The rules already allowed permits for religious groups to do their thing in designated free speech areas at the parks.

      • Jenny Haniver
        Posted July 4, 2019 at 3:30 pm | Permalink

        The first link I gave wasn’t the one I intended.

        It seems that the interpretation of freedom of speech/expression re the separation of church and state includes religious expression under umbrella of permitted free speech and expression.

        DIRECTOR’S ORDER #53: SPECIAL PARK USES
        Effective Date: 2-23-2010
        https://www.nps.gov/policy/DOrders/DO53.htm cf. 9.1

        Religion. The First Amendment’s Establishment Clause prohibits the government from support­ing or promoting a particular religion, religious view, or religious organization if it involves an “excessive entanglement with religion.” It does not, however, prohibit the NPS from allowing religious activities in park areas in the same way it would allow the exercise of any other First Amendment activity.

        This from https://www.federalregister.gov/documents/2017/10/26/2017-23269/federal-law-protections-for-religious-liberty
        See section 7 “…he National Park Service may not require religious groups to obtain permits to hand out fliers in a park if it does not require similarly situated secular groups to do so…”​

        The SCOTUS blog I referenced https://www.scotusblog.com/2018/08/judge-kavanaugh-and-freedom-of-expression/ has do with Steve Gerrard’s comment and quote, which I repeat and which is from the Scotus Blog:
        “In Boardley v. U.S. Department of Interior, Kavanaugh joined an opinion invalidating National Park Service rules that required permits and limited speakers to certain free speech areas. A group seeking to distribute religious tracts near Mount Rushmore National Memorial challenged the rules.”

        So religious groups could use these lands if they obtained a permit. Now, they don’t need one

        I’m certainly not defending these rulings and interpretations, simply pointing them out.

  23. StephenB
    Posted July 4, 2019 at 12:46 pm | Permalink

    Your Friendly Neighborhood Librarian refers you to this: https://www.mtsu.edu/first-amendment/article/824/public-forum-doctrine. It seems that public parks are considered limited public forums under the First Amendment.

    • Randall Schenck
      Posted July 4, 2019 at 1:04 pm | Permalink

      I would say to you the same as I already said above. This does not cover anything to do with religion on federal or state ground. It is about access for demonstrations.

      • StephenB
        Posted July 4, 2019 at 1:17 pm | Permalink

        I, as well as you, am waiting for a constitutional lawyer to weigh in on this, but from my past experience, the public forum designation does allow religions to distribute information in such a forum provided that the government agency has a policy stipulating the fair application of the “time, place, and manner” regulations.

      • Pelmon
        Posted July 4, 2019 at 2:17 pm | Permalink

        No, it is about access for speech. You can protest. You can recite Khalil Gibran. You can complain about Nike shoes. You can praise Allah.
        The first amendment protects religious speech as much as “protest” speech.

        • Randall Schenck
          Posted July 4, 2019 at 2:41 pm | Permalink

          You are out of your element here. Freedom of religion is one part of the Amendment. Freedom of speech is another and separate part. Please see a lawyer.

          • Pelmon
            Posted July 4, 2019 at 3:06 pm | Permalink

            Other than rudeness I do not see your point.
            We are discussing in this sub thread the rules for designated free speech zones. Are you suggesting the free speech clause is irrelevant in that case?

            You seem to be under a misconception about the establishment clause. It does not forbid the the government from allowing religious speech on government property. It does mandate a certain degree of viewpoint neutrality in such matters. The park service cannot allow groups to apply for permits but forbid specifically just religious groups from participating.

            • Randall Schenck
              Posted July 4, 2019 at 4:33 pm | Permalink

              Okay, then I am out of date with our new religious bosses on the court. Apparently they have decided National parks are now religious sanctuaries. I guess that will be another reason to stay out of the parks. Why the courts decided to kill separation of church and state on this federal property is pathetic. All those religious signs and 10 commandments they had to remove from public buildings mean anything.

              • BJ
                Posted July 4, 2019 at 6:30 pm | Permalink

                They removed the 10 commandments and other such things because those were not examples of transient free speech by individuals or groups, but permanent fixtures and thus implying condoning of religion by the government. Individuals have the right to free speech no matter what they’re saying, unless that speech is already illegal.

                This has literally nothing to do with separation of church and state, as the government is not involved in the speech being expressed.

          • BJ
            Posted July 4, 2019 at 6:28 pm | Permalink

            No, they are not separate when it comes to speech. Individuals are free to express any kind of speech not already outlawed (e.g. fighting words). Free speech does not suddenly change when religion is the speech involved.

            • ThyroidPlanet
              Posted July 4, 2019 at 10:00 pm | Permalink

              Except they are advertising their religion.

              If Walmart gave away free cookies they’d still be considered to be advertising.

              • BJ
                Posted July 5, 2019 at 7:38 am | Permalink

                If I go to a street corner to tell people about the girl scouts, or my opinion on SPAM, or my appreciation for hockey cards, or about atheism, I am “advertising” those things. If free speech law doesn’t exist to protect everyone’s right to advertise what they think, what is the point of it? They’re advertising their opinions; in other words, they’re exercising free speech. I don’t understand why you think that is relevant.

              • ThyroidPlanet
                Posted July 5, 2019 at 9:09 am | Permalink

                Walmart is seeking to profit from it.

                Walmart is not free to erect billboard advertisements wherever they like – they have to pay money to advertise.

                The question is why businesses are not lining the walkways at National Parks to get customers – as the victims of faith are doing in this case.

  24. John Conoboy
    Posted July 4, 2019 at 12:57 pm | Permalink

    Like Bob Randall, I am a retired National Park Ranger. These first amendment areas are the outgrowth of various court cases and ultimately legal analysis done by the Department of Interior solicitor’s office to try to give NPS management guidance in how to deal with the court rulings. The folks at the individual parks have to try to implement the policies as best they can, as these come from on-high. No doubt there will be further court cases. The court has allowed limits on protests. If you recall, during the presidency of W, protestors were often limited to where they could be and in many cases they were shunted off where they would not be seen. I find such limits on peaceful political protest offensive, but until someone can successfully get the courts to overturn the rulings it will be implemented.

    There are also those who challenge these first amendment areas in parks as being in violation of the first amendment, not in being there, but in limiting where in the park you can “speak.” They would claim that you have the first amendement rights to such displays anywhere.

    When I visit a National Park area, I do not like to be accosted by anyone pushing any political, religiousk, or other ideology, but at least I can avoid them if they are restricted to a particular area.

  25. Jon Gallant
    Posted July 4, 2019 at 1:10 pm | Permalink

    Yes, in the late 18th century the USA was the first society to establish the separation of church and state in law. On the other hand, today the prevalence of sky-god superstitions is much greater in the USA than it is in western Europe, even though laws maintaining state sponsored established churches (the Church of England, the Church of Sweden, the Church of Denmark, etc.) remained on their books until relatively recently. It follows that the decline of public belief in sky-god superstitions occurs for reasons more basic than the legal codes. Although I am entirely in sympathy with the FFRF and similar efforts, I suspect that widely read exposures of the absurdities of faithism, like our host’s admirable “Faith Versus Fact”, are more effective than endless legal campaigns for church-state separation.

    That said, I wonder whether campaigns a little different from those of FFRF might not be more fun. Since “Diversity” has become the contemporary summum bonum, what about campaigning for superstition Diversity? We need proselytizing tables for Moon Worship, Pagans, Wiccans, the Raelian Movement, the Church of Euthanasia, and the Satanic Temple. I personally volunteer to help man the Flying Spaghetti Monster table at the nearest national park location.

  26. Genevieve
    Posted July 4, 2019 at 1:10 pm | Permalink

    Re: the JH at the state park.

    My alma mater , which is part of the State University of New York would occasionally have non-student pro-lifers protesting on the green with bullhorns reading from the Bible. Students complained but the administration said that the demonstrators had free speech rights.

    • Genevieve
      Posted July 4, 2019 at 1:12 pm | Permalink

      *JW not JH

    • Posted July 5, 2019 at 11:24 am | Permalink

      That’s interesting, and a difference between the two neighbours. When I was at UBC, university officials ruled that because the anti-abortion protests “on” campus were disruptive (and largely from the outside) they would enforce anti-trespassing laws against them. (Both McGill and UBC say that one has to have university business or whatnot to be on campus, which gives them the freedom to do this.) The protest (and counterprotest) moved to the UBC bus loop, which is not UBC property but belonging to the transportation authority (Translink?) which is regarded as public in this case.

  27. Posted July 4, 2019 at 4:53 pm | Permalink

    Hopefully, the Hawaii Secular Society will set up a kiosk at Pu’uhonua o Honaunau NHP.

  28. Posted July 4, 2019 at 5:04 pm | Permalink

    All I know is that I visited a nature park or reserve the last thing I want in my face is to see is a pack of religious nutters advertising their delusions. What the hell has it to do with the function of preserving nature?
    What’s next? commercial advertising kiosks?
    US Park service have lost the plot.

    • Posted July 4, 2019 at 5:39 pm | Permalink

      They can’t get in anyone’s face. NPS regulations are explicit on this. The NPS manages the National Mall and monuments in Washington D.C. where many protests and assemblies occur. That is why it has policies to govern such activities in its parks. The Trump administration is attempting to limit these rights to assemble by requiring the NPS to charge high fees for permits in its venues. Hopefully, that will fail.

      To me, a few JWs exercising their right to free speech in a contained area is a small price to pay for First Amendment rights for all.

      • rickflick
        Posted July 4, 2019 at 5:52 pm | Permalink

        Yes, I think the tradition set over decades is that in the US, you are free to mildly annoy (JWs standing quietly behind brochures) or seriously annoy (protestors at abortion clinics). The rest should politely accept it, and for the most part we do.

        • Posted July 4, 2019 at 6:01 pm | Permalink

          Yes, as someone correctly pointed out to me in an earlier post regarding the jerk with a swastika parading in front of a group of jewish students at UWM, we have no right not to be annoyed by someone else’s speech.

      • Posted July 4, 2019 at 9:18 pm | Permalink

        ‘They can’t get in anyone’s face.”

        That hoarding is getting in your face.

        They should sit there without their patronising signs and speak only when spoken to, then I’d have no cause to complain.

  29. samoffat@28gmailcom
    Posted July 4, 2019 at 5:23 pm | Permalink

    Thank you, as always , for following up on observed un Constitutional stuff. FFRF will take it on if needed, I’d think.


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