About a week before the July 1st starting day in 1988, The Forest Service law enforcement officers (LEOs) put up roadblocks on all of the roads leading into the site of the national gathering in Texas. The Rainbows carried in supplies thru the woods and continued to set up kitchens using a path that they started calling the Ho Chi Minh Trail.
Some Rainbow gatherers with legal experience filed a complaint in a local federal court, and a judge named William Wayne Justice ruled that the closure violated the First Amendment rights of the Rainbow Family to peaceably assemble. He ordered the Forest Service to remove all the blockades
Justice Justice based his ruling on a case two years earlier in Arizona where a Rainbow brother named Gideon Israel had challenged his ticket for camping without a “special use authorization”. The regulation at that time had recognized two different types of “group events”, a “recreation event”
that involves competition, entertainment, or training such as, but not limited to, animal or vehicle races or rallies, dog trials, fishing contests, rodeos, fairs, regattas, and games.
and a “special event”
for the purpose of expression or exchange of views or judgments.
Different sets of criteria were stated for the granting of the different types of permits.
In his final ruling Justice wrote:
The Forest Service requires groups of ten or more people who gather on Forest Service land “for the purpose of expression or exchange of views or judgments” to apply for a special use permit. Such a regulation impermissibly singles out those who wish to gather in order to exercise their First Amendment rights. The Court finds that this regulation is therefore unconstitutional.
[This was basically quoting the decision of the judge in Gideon Israel’s case]
In response to this, the Forest Service issued an “interim rule” that was published in May of 1988, two months before the Texas gathering. It eliminated the distinction and created a single category of “group event”. Justice noted that this was contrary to the usual practice of allowing a period for “public comment” before enacting a change in regulations that was announced well enough in advance for everybody concerned to learn about it. In his conclusion he wrote:
The appropriate action for a court to take where a regulation has been improperly adopted, without notice and opportunity for comment, is to declare the regulation ineffective.
So in spite all of the objections of the first judge being addressed in the new version of the regulations, the Forest Service could not enforce it because there had been no proper period of public comment. It was on this technicality, more than the broader issue of First Amendment rights, that the Justice ordered the blockade be lifted.
Changes in the wording of the regulations
Five years after the Texas gathering, the Forest Service responded with another rewriting of the regulations that again did away with the distinction between the two types of activities, and in their words:
contained specific, content-neutral criteria for evaluating applications for noncommercial group uses and noncommercial distribution of printed material and required that the same criteria be applied to those activities regardless of whether they involve the exercise of First Amendment rights.
They published the proposed rule changes in the Federal Register and announced a 90 day comment period that ended in August of 1993. 603 people commented, and on August 30, 1995 they published in the same place their Final Rule.
Only three modifications came about as a result of the comments: a ban on distributing printed matter was removed, the number of participants required to make it a group use was increased from 25 to 75, and the definition of “commercial use” no longer included events for which there was a entrance fee, but only “where the primary purpose is the sale of a good or service”. Otherwise, to the constitutional objections of the people who did comment they replied that they:
may enforce reasonable time, place, and manner restrictions on First Amendment activities. Such restrictions are appropriate:
where they are content-neutral,
where they are narrowly tailored to further a significant governmental interest, and
where they leave open ample alternative channels for communication of information.
Three significant governmental interests were defined and discussed:
protecting forest resources,
promoting public health and safety, and
allocating space among competing users.
As they contended, as long as a regulation fits all of these criteria, it does not violate free speech and expression rights of forest users.
To incorporate these concepts into the new regulations, a new paragraph was added to Title 36, Part 251, Subpart B of the Code of Federal Regulations.