Magazine article Parks & Recreation

No Playtime for Pedophile Clown

Magazine article Parks & Recreation

No Playtime for Pedophile Clown

Article excerpt

No Playtime for Pedophile Clown

When public safety rules over First Amendment rights.

In the case of Hobbs v. County of Westchester, No. 00 Civ. 8170 (S.D.N.Y. 8/13/2003), plaintiff Richard Hobbs was prohibited from performing his "busking act" at Playland, a 279-acre county recreational complex.

Owned and operated by Westehester County, Playland has the distinction of being America's first totally planned amusement park and prototype for today's successful theme parks. Dedicated as a National Historic Landmark in 1987, Playland has provided family fun since 1928. The park is highlighted by Art Deco structures and a distinct grassand flower-covered mall. Often referred to as "Rye Playland," Playland is America's only government-owned and -operated amusement park. (Source: www.ryeplayland.org).

In 2001, Hobbs requested a permit to perform at Playland. Hobbs' busking activity included a clown act, giving away balloon sculptures, engaging in humorous social commentary and accepting donations. Upon learning tbat Hobbs had been convicted of sexual abuse of minors in 1078 and 1983, the director of Playland refused to issue the requested permit because "it would constitute an unreasonable safety and security risk to allow Mr. Hobbs to have contact with children at Playland."

In 2003, the county adopted the following executive order which, in part, prohibited anyone who had been "convicted of sexual abuse of children from performing an act in which they seek to interact with children in a countyowned park":

No individual known to have been convicted of a sexual offense against a minor shall be permitted to obtain a permit if the solicitation, performance, demonstration or other similar activity would entice a child to congregate around that person, since the granting of such permit would involve an unreasonable risk to the safety and welfare of children.

Hobbs challenged the constitutionality of this executive order under the free speech guarantee of the First Amendment.

Competing State Interest

Although convicted felons do not enjoy the full panoply of constitutional rights, the federal district court acknowledged that these individuals aren't totally deprived of their constitutional rights, including the free speech guarantee of the First Amendment. In this instance, the court noted that the county's permit requirement to perform at Playland was a "restriction on the exercise of otherwise permissible First Amendment expression." Accordingly, to "pass constitutional muster as a permissible time, place and manner restriction," the court would determine whether the county's regulation of convicted felons was "narrowly drawn, objective and content-neutral."

Applying these principles to the facts of the case, the federal district court concluded that it was "permissible for the county to enact a narrowly drawn regulation specifically designed to protect children from pedophiles without running afoul of First Amendment guarantees." In so doing, however, the court acknowledged that the regulation must offer procedural safeguards to Hobbs and others denied the opportunity to perform at Playland pursuant to the executive order. Although the executive order didn't contain a procedure for judicial review of agency actions, the court acknowledged that state law would provide a procedure for judicial review to determine whether a "reasonable basis in fact" existed for any actions taken by the county pursuant to the executive order.

As noted by the federal district court, "since the prohibition does implicate First Amendment rights, and is content-based, it must withstand strict scrutiny." In other words, to pass constitutional muster under the First Amendment, the executive order had to be narrowly tailored to achieve a compelling state interest. In this instance, the county's clearly stated intent was to prevent an unreasonable risk to the safety and welfare of children. …

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