March 20,1984

The Free Sleep Case

Nat Hentoff

Next Wednesday the clash of oral arguments will be heard in the Supreme Court on a peculiarly American variation on Anatole France's Paris Blues: "The law, in its majestic equality, forbids the rich as well as the poor to sleep under bridges, to beg in the streets, and to steal bread."

In this cause, William P. Clark, Secretary of the Interior, Et Al vs. The Community For Creative Non-Violence, Et Al, the issue is whether the poor have a First Amendment right to sleep the night through in Lafayette Park; across the street from the White House, in violation of anti-camping regulations, if their sleeping is an integral part of a symbolic demonstration of their plight.

Or, as Judge Harry Edwards said in the 6-5 D.C. Court of Appeals decision upholding the expansion of protected speech to include sleep: "These destitute men and women can express with their bodies the poignancy of their plight. The can physically demonstrate the neglect from which they suffer with an articulateness even Dickens could not match."

On the other, hand, there are those who regard this case as quintessentially silly. As Circuit Judge Antonin Scalia put it in adapting a statement by Justice Robert Jackson in an earlier case, "I dissent from this decision, which seems to me to endanger the great right of free speech by making it ridiculous and obnoxious, more than the Park Service regulation in question menaces free speech by proscribing sleep."


The oral arguments promise to be compelling on both sides because of the star quality of the gladiators. The American Civil Liberties Union, giving voice a the sleeping homeless, will he represented by its top gun, legal director Burt Neuborne, who does not often argue before in court because morale is better served by spreading the glory and anxiety among the troops on staff and in the affiliates. Neuborne picked this to emphasize the ACLU's increasing commitment to the civil liberties of the poor. Some ACLU lawyers have been smarting for years at charges by their more radical brothers and sisters that the ACLU's docket is too middle class, particularly in free speech cases. The homeless, for instance, do not customarily parade, leaflet or hold silent vigils as middle-class protesters do.

Appearing for the government will be Paul Bator deputy solicitor general on leave from his professorship at Harvard Law school. Bator is generally regarded as the most skillful and quick-witted advocate in Rex Lee's command.

It is the government's position that while the contested space - Lafayette park and part of the Mall-has often been the site of all manner of demonstrations, it was not intended by Thomas Jefferson or anybody in authority since to be a camping ground where people settled in and slept overnight. The homeless and their friends from the Community for Creative Non-Violence can be there all night says the government. "What they cannot do is go into their tents and spend the night actually sleeping—because that would he using the park as a place to live."

True sleep, then, is the core of the First Amendment argument here. The homeless can feign sleep, but if someone begins to snore, he or she will be transported to a pallet on the floor of a ce11 with perhaps a portrait of Anatole France overhead.

But what about sleep as symbolic, expressive speech? That very notion, the government says scornfully, "trivializes the First Amendment because it can contribute only in an trivial way to the possibilities of human communication."

However the court decides, Neuborne's response is neither trivial nor silly: "Scores of homeless people sleep in the… park areas each night, in solitary spots, huddled against the elements. They sleep in McPherson Square; they sleep on the grassy lawn south of the Old Executive Office Building ... and they sleep in the Mall and in Lafayette Park.... Unfortunately, when homeless people sleep in our Park isolated and alone, it is all too easy to ignore them.

"What the homeless persons in this case seek is to assemble in modest numbers and send the message consciously and deliberately, in the hope that more of us will notice and be moved to respond."

The homeless are already a sleeping presence, under the bridges and in the streets in all the cities of this land; but no more attention is paid to them than if they were stray dog. The question in this ease, as Neuborne says, is whether under the First Amendment, "that presence can have a political dimension an expressive dimension intended by the homeless people themselves."