United States v. Burch

The court case of United States v. Burch centered upon Chris Burch’s opposition to Bill Barnes’s expansion of his private resort community, Mountain Harbor Resort, farther into the Ouachita National Forest in western Arkansas.

Chris Burch had lived around the forest since 1977 and enjoyed its natural beauty. Bill Barnes’s father had leased lands from the U.S. Army Corps of Engineers in 1955, and Barnes was continuing his father’s work: to develop the land to meet the public’s needs as was dictated by the lease. Burch’s family, who owned and operated a small motel and general store, was friendly with—and even referred customers to—Barnes, who frequently returned the favor. Burch, however, was troubled when Barnes requested a new lease over additional land in the forest between 1996 and 1997 to build cabins, boat docks, and a parking lot.

Burch sought to inform others of Barnes’s plans in order to stop what he believed was the destruction of part of the Ouachita National Forest. To do so, Burch produced flyers that outlined his objections. Burch had opposed Barnes’s proposal because he believed that the lease would allow Barnes to take public lands and develop the land to expand and improve his private business, the Mountain Harbor Resort. Burch also believed that the construction would destroy the natural beauty of the forest and the habitat the forest provided for animals, including bald eagles. Burch routinely distributed the flyers to campers and hikers in the forest and on the property of the Mountain Harbor Resort, which was located within the forest.

In one instance, on July 4, 1999, Burch distributed flyers that outlined his objections to Barnes’s plans and included information about an upcoming public meeting to discuss the issue. A park ranger confronted Burch and others, ordering them to stop passing out the flyers. Burch responded that he was exercising his First Amendment rights. The park ranger contacted the Arkansas State Police, which dispatched an officer to the scene.

The officer informed Burch of 36 C.F.R. 372.17 (1999): “Advertising by the use of bill boards, signs, markers, audio devices, hand bills, circulars, posters or any other means whatsoever, is prohibited without written permission of the District Engineer.” The officer then cited Burch for failing to comply with a lawful order issued by a federal employee acting pursuant to the regulations. The next day, Burch requested permission to distribute his pamphlets in the forest, but his request was denied.

In the subsequent weeks, Burch continued to photograph and videotape the land to document how the construction at the Mountain Harbor Resort was damaging the forest. In one instance, on July 28, 1999, a Mountain Harbor employee who held a pistol behind his back confronted Burch, who videotaped the encounter. A local deputy arrived at the scene and informed Burch that he was trespassing on private property.

Burch was later arrested for criminal trespassing, found guilty, and fined. An attorney working with the American Civil Liberties Union (ACLU) appealed the sentence. The ACLU argued that Burch’s flyer was not an advertisement, and, even if it was, the regulation against such advertising would be unconstitutional because the need to gain written permission of the district engineer is tantamount to a prior restraint.

Prior restraints are seen as impediments to free speech because they require the government’s approval of an idea before it can be uttered. And it seemed unlikely, as Burch’s request for permission on July 5 suggests, that the government would not allow expression that was critical of the government’s action, which in this case was working with Barnes and the Mountain Harbor Resort.

The Honorable Bobby E. Shepherd overturned Burch’s conviction and found that 36 C.F.R. 327.17 gave the district engineer of the Army Corps of Engineers “‘unbridled and absolute power to prohibit’ the distribution of leaflets in Corps controlled areas.” Burch continued to document the effects Mountain Harbor Resort’s expansion, which stoked the acrimony between Barnes and Burch. At one point, Barnes filed a restraining order against Burch to prohibit him from being near Barnes, his wife, and the leased land. Burch objected because such an order would prevent him from entering public land, which was leased to a private developer.

For additional information:
Dewberry, David R. “United States v. Burch: Freedom of Speech in the Ouachita National Forest.” In First Amendment Studies in Arkansas: The Richard S. Arnold Prize Essays, edited by Stephen A. Smith. Fayetteville: University of Arkansas Press, 2016.

Judgment of Acquittal. United States v. Chris Burch (99-A226584 WA-33), March 3, 2000.

David R. Dewberry
Rider University