OCTOBER 31,1984

Good taste and free speech

The Court of Appeals has stepped onto a slippery slope

"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."

"Anatole France's 90-year-old sentiment came to mind when, last Friday, the U.S. Court of Appeals in D.C. upheld Reagan-administration regulations restricting signs and protesters on the Pennsylvania Avenue sidewalk alone the north side of the White House. Although the rules are "content neutral"—that is, they theoretically restrict supporters of government policy just as much as they limit its opponents – their effect is to limit criticism and dissent, because most of the protests, most of the time, are complaining rather than praising.

The regulations are supposedly enforced by the Interior Department's National Park Service, which has jurisdiction over the federal land surrounding the White House. It's illegal to place a purse, a camera bag, or any other parcel on the sidewalk for more than a few minutes (they may hide bombs) and signs may not be rested against the fence (someone might use them as ladders). Finally, the materials and dimensions of signs are restricted to prevent their use as ladders or weapons.

The Reagan administration has no monopoly on its dislike for criticism, although none of its predecessors went so far as to try to remove dissidents from the White House sidewalk. And it is dissident at whom the regulations are directed; by definition, happy people don't stage protests. When the administration's friends demonstrate, the guards look the other way, soon after the rules went into effect a little over a ago, a large anti-Soviet demonstration protesting the downing of Korean Air Lines Flight 007 violated most of the regulations without so much as a reprimand.

Which is among the reasons why last April U.S. District Judge William B. Bryant found the rules to be an unconstitutional attempt to restrict free speech; it was his decision that the Court of Appeals overturned last week..

Judge Bryant also noted that 60 people have climbed the White House fence in recent years without using signs or parcels as springboards — the ornamental ironwork offers many easy foot holds—and every one was stopped within yards of the fence by the commendably thorough White House grounds security system manned and operated by the Secret Service.

After accepting the "presidential security" argument, the Court of Appeals wrote a new esthetic exception into the First Amendment's free speech guarantees—"your freedom to state your case ends where our good taste begins." Not only is that an example of judicial activism — amending the Constitution, no less—in support of supposedly conservative values, but it seems to fly in the face of a decision handed down by the Supreme Court only last May.

Then, when the justices upheld a Los Angeles ordinance making it illegal to attach posters to public property such as utility poles buildings, and trash cans, they clearly suggested that their decision would have been different if the ordinance had: (1) restricted anyone from expressing his views is person, (2) banned signs on crosswalks and side walks, (3) prevented protesters from communicating directly with the intended recipients of their messages, or (4) had involved "traditional public forum property," those areas in every city, often adjoining government buildings, where persons have traditionally gathered to petition the government for redress of grievances.

By exalting tourists' desires to photograph Aunt Minnie standing at the White House fence over the fundamental constitutional right to express often unpleasant views in sometimes distasteful ways, the Court of Appeals has stepped on to a slippery slope. Protesters will move, always just one step ahead of the regulations, to public places which they had previously ignored, and the government will then amend the rules to prevent each new desecration of a famous monument or important building. Thin-skinned politicians could use last week's decision to remove all protests from public parks and government property everywhere, not excluding the city dump.

Protesters are necessarily unpleasant, even irritating. Presidents, governors, and, legislators tend to move rather quickly with the flow of public opinion, at least if they're interested in re-election. Few among us are angry at government policy for very long, and it's only a minority of that dissident minority that has the time, energy, and non-conformist attitudes one needs if one is going to make a public spectacle of oneself.

Free speech is not an ideological issue. The protest against the downing of KAL 007 centered at the White House because a D.C. law prohibits hostile demonstrations within 500 feet of' the Soviet—or any other — embassy. Conservatives are challenging that law in court; last week's Court of Appeals ruling offers them cold comfort. Conservatives and liberals alike will have to live with these limits on their freedom of' speech until the Supreme Court rules.