Letter from William Thomas

P.O. Box 27217
Washington, D.C. 20038

December 4, 1996

United States Department of the Interior
Washington, D.C. 20240

Dear Messrs. Robbins & Myers:

Thanks for your letter of November 21, 1996, which responded to my letter of October 11, 1996. This response concerns two subjects: One, whether the sign mentioned on page 2 of your November 19 letter violates Park Service regulations. The second subject -- our "demonstrations" in Lafayette Park -- is more complex, to facilitate understanding it is divided into four sub-sections: (a) the nature of our demonstrations, (b) "three cubic feet," (c) "sign attendance," and (d) artist's brushes.

So we may conduct our demonstrations in a reasonable manner within the applicable regulations, we will state our position with respect to the issues presented in your letter. We request your specific reply as to each individual issue to identify any legitimate government concerns.

Finally, we offer a suggestion for resolving any problems to our mutual satisfaction.


We understand you maintain that only one of Mrs. Thomas's two signs violates a regulation. Appropriately, you do not assert that any sign exceeds any requirement regarding permissible dimensions. Instead, apparently based on the erroneous assumption that "the photograph (shows) Mrs. Thomas is sitting on a box which is covered by a blanket," you state, "the box does violate the structure regulations."


a. The base of the sign is not a box, and is necessary for safety.

You correctly note, "regulations, found at 36 C.F.R. 7.96(g)(5)(B)(2)... allow() ... braces 'that are reasonable required to meet support and safety requirements'."

Mrs. Thomas' signs are constructed with "braces 'that are reasonabl(y) required to meet support and safety requirements'." Apparently you have misconstrued two pallets supporting the sign as a "box" or "structure" of some kind, and misperceive it as "not affixed to" the sign. To the contrary, a physical examination of the sign will reveal that the pallets are affixed to the sign. The weight of the pallets is "required to


meet support and safety requirements," because without it the signs will blow over in the wind, causing a serious safety hazard.

The base weight of the other sign, pictured with only one pallet, was increased only by using heavy metal sheathing. Not only is this metal very difficult to obtain, but on November 26th the one-pallet sign was blown over in the wind. We are going to have to add additional weight or that will happen again.

It may not be obvious in the photographs, but Mr. Myers was there when the photos were taken. Therefore, he should be aware that the present sign platform is neither raised "off the ground," nor has any "space for storing... items under this new platform."

Additionally, because of physical problems (of which your office should be aware -- e.g., see attachment, April 14, 1987), Mrs. Thomas is unable to sit only six inches off the ground without suffering physical pain.

As a footnote, your reliance on Thomas v. United States, No. 94-2747 (August 25, 1995) is factually misplaced. The sign pictured in the photographs accompanying your letter of November 19, 1996 employs a design substantially different from the sign at issue in Thomas and discussed in your letters of January 20, 1995, February 23, 1995 and October 11, 1995. Referring to your letter of January 20, 1995, it appears your sole complaint with respect to "platform construction" was that we "constructed a raised platform which is at least six inches off the ground ... (and ) appear(ed) to be storing certain, unidentified items located under this new platform."


To what extent do you agree or disagree that the sign(s) pictured in the photographs accompanying your letter conform to applicable Park Service regulations?

b. A sign which might violate regulations could be permitted.

On numerous occasions since 36 C.F.R. 7.96(g)(5)(B)(2) was promulgated on March 6, 1986, we have witnessed demonstrations other than our own in Lafayette Park, apparently conducted pursuant to permits issued by the National Park Service, which included signs and structures exceeding the limits set out 36 CFR 7.96(g)(5)(B)(2).

Given that demonstrations in Lafayette Park, apparently under National Park Service permit, have included signs and/or structures which exceed the size limitations set out in 36 C.F.R. 7.96(g)(5)(B)(2), NPS has authority to permit signs/structures in a demonstration to exceed the size limitations set out in 36 C.F.R. 7.96(g)(5)(B)(2).



To what extent do you agree or disagree that NPS has authority to permit a demonstration to exceed the sign/structure size limits set out in 36 C.F.R. 7.96(g)(5)(B)(2)?


Your expectation that we "conform (our) activities" to Park Service regulations is certainly reasonable. We always try. Thus, we were dismayed by your conclusion that our "demonstrations, on October 10, 1996, violated Park Service regulations."

Before addressing the specific points raised in your letter, to be reasonable, one must begin by accepting the fact that our "demonstrations are NOT intended as acts of "civil disobedience," but as acts of obedience to sincerely held religious beliefs. The purpose of Ms. Picciotto, Mrs. Thomas and myself in using Lafayette Park land is to maintain continuous vigils Our sole intent is to attract publc attention to communicate or express opinions. Except for intervals owing to the effects of regulatory enforcement and judicial process, we have maintained our vigils 24 hours a day, every day since 1981 for Ms. Picciotto and myself, and since 1984 for Mrs. Thomas.


(a)(i) Our use of park lands is for first amendment purposes.

On March 5, 1985 Mr. Robbins explicitly claimed that the Park Service had no desire to preclude "continuous vigils" from Lafayette Park. Federal Register, Vol. 51 No. 43, pg. 7559, 2nd col., March 5, 1985. "The term 'demonstrations' includes ... holding vigils or religious services and all other like forms of conduct which involve the communication or expression of views or grievances, engaged in by one or more persons, the conduct of which has the effect, intent, or propensity to draw a crowd or onlookers...." 36 CFR 7.96 (g)(1)(i).

(a)(ii) Our symbolic purpose

Neither Ms. Picciotto, Mrs. Thomas nor I belong to or constitute an organized religion. Individually, however, our communicative activities are prompted by independently held religious beliefs. "'God' is that which one worships, or to which one devotes one's time and energy," is a religious tenet held in common by the three of us. Symbolically our vigils are intended to demonstrate the sincerity of our religious commitment to trust in a God of life, truth, justice, freedom, and equality. We do not solicit funds, and maintain our physical existence only with freely given materials.


By sacrificing our personal pleasures and comforts -- exposing ourselves to the elements, the dangers that lurk in a city, and the physical and verbal derision of law enforcement personnel and other non-believers -- our vigils are likely to be understood as individual expressions of commitment, responsibility and dedication, to a full-time public pursuit of truth, justice, freedom, equality and the progress of all life on earth. This symbolic message is likely to be understood by onlookers, but, for clarity's sake, the words and phrases written on our signs (e.g., "God," "life," "truth," "justice," "freedom," "equality," "responsibility," etc.) are intended to spell our messages a little more clearly for those members of the public who may find themselves too preoccupied to correctly grasp the subtlety of symbolism.

(a)(iii) Our practical goals

Stressing nuclear weapons as prime examples of devices antithetical to the ideals we hold sacred, we seek practical methods within the existing social structure to provide the greatest good for the largest number. We seek to divert the tremendous energy and resources currently devoted to weapons of murderous potential into more divinely constructive channels. Separately, we seek to check the erosion of freedom of expression by totalitarian mindlessness.

Our pursuit of these goals begins with signs, printed material, and the circulation of petitions designed to attract attention of members of the general public to the availability of intellectual intercourse on topics of broad public concern, and our personal presence, 24-hours a day, to discuss the issues we espouse. Those disinterested in our message are free to ignore it, unimpeded by our presence.

The practical effect of our vigils is demonstrated by the fact that the ideas and information disseminated at our vigils formed the basis of a successful voter initiative campaign, which resulted in a bill currently under consideration in the United States House of Representatives (See, attachments, re, HR-3750, and HR-1647).

(a)(iv) Our vigils implicate no legitimate government interest.

The actions and/or activities of Ms. Picciotto, Mrs. Thomas and myself have never posed any substantial threat to any legitimate government interest. Our communicative activities never had any measurable adverse impact on park lands. On the contrary, we assert that our actions have had at least three identifiably positive effects. First, our long-term presence has contributed to the enjoyment of many park visitors, not only those who find our ideas of interest, but also to thousands of foreign and young american visitors. Our vigils are a regular stop for Closeup tour groups (school children and teachers from around the nation), and foreign tour guides, all of whom describe our activities as an example of "the First Amendment in action." Second, not only do we keep our vigils neat and orderly, we also regularly clean the area around our vigils and routinely pick up trash left by others. Finally, apart from our communicative activities, but in conformity to our religious beliefs, we provide information and emergency services to needy people.



Specific examples of actions and/or activities of Ms. Picciotto, Mrs. Thomas or myself which have ever damaged any park lands, or posed any substantial threat to any legitimate government interest, or to what extent you disagree with any of my representations regarding our beneficial activities?



You wrote, "We understand that when Park Police officers were patrolling Lafayette Park on October 10, 1996, they observed that no one was present at Ms. Picciotto's demonstration site... United States v. Musser, 873 F.2d 1513."


We understand that Park Service regulations require signs to be attended, and that "attendance" is defined as being within three feet. Within that definition, our demonstration sites are very seldom "unattended." While it is possible that Park Police officers may have "observed that no one was present at Ms. Picciotto's demonstration site" for a short period of time, such an observation is a rare exception to the rule. Further, we believe that there are only one of two possible explanations for such a lapse of attendance, and that both are perfectly reasonable.

First, it is biologically imperative that human beings perform eliminatory functions. Since your letter contains no complaints as to the construction of her signs, we assume you agree that Ms. Picciotto's signs conform to Park Service regulations. We hope you will also agree that it would be unreasonable to expect Ms. Picciotto to carry those legal signs with her to the bathroom. We don't suggest that the fact we must relieve ourselves from time to time should exempt us from any regulation, but we contend that every time any of us goes to the bathroom we make diligent efforts to find someone to attend our demonstration during our absence. Owing to other vigil- related demands (e.g., litigation arising from demonstration regulations, meetings and matters relating to the elimination of nuclear weapons, the necessity to perform our living accommodation functions outside of the Park), it is not possible for Ms. Picciotto, Mrs. Thomas and me to always be in the Park at all times. Since one person cannot attend more than one set of signs, admittedly there have been occasions when the demands of nature required attention before a responsible attendant was located, and one set of signs was without its own individual attendant. But these occasions are rare exceptions, by no means a daily occurrence, and are always of very short duration, and the person attending the other set of signs remains, assuming responsibility, only a few yards away.


Second, Ms. Picciotto, Mrs. Thomas and I regularly sweep the area around our demonstrations, pick up debris left by unknown park visitors, and produce waste ourselves in the process of eating or drinking or blowing our noses. On these occasions we have thought it reasonable to walk to and from the trashcans, located approximately forty feet from our demonstrations, to deposit these undesirable articles in the proper receptacle. These trash trips do not take us out of sight of our demonstration sites, and never take more than a minute, but more than once we have been told by certain Park Police officers that those trips violate the three foot attendance rule.

We know that the three foot attendance requirement has been held by the courts to be reasonable, but considering the reasonableness of letting people go to the bathroom, and the trashcan, we also believe that it would be reasonable for you to establish certain guidelines to insure that the regulation is not unreasonably applied.


To what extent do you agree or disagree that it is unreasonable to charge Ms. Picciotto, Mrs. Thomas or me with a violation of the attendance regulation because (a) we were compelled to visit the bathroom for a few minutes, or (b) we left the signs long enough to walk forty feet to the trashcan and back?



You "understand that on October 10, 1996, Park Police officers observed stored material substantially in excess of three cubic feet at the demonstration sites of both Mrs. Thomas and Ms. Picciotto," and "both Mrs. Thomas and Ms. Picciotto "stored material substantially in excess of three cubic feet." You note, "this storage regulation has been held to fully comport with the requirements of the First Amendment. Thomas v. Lujan, 791 F. Supp. 321 (1991)."


Nothing is "stored" at our demonstration sites. All materials at our demonstration sites are used daily. Any materials belonging to Ms. Picciotto, Mrs. Thomas, and me but not being immediately used are stored either at our living accommodations, at 1424 12th Street, NW, Washington, DC, or at a commercial storage site.

We agree that the materials required for our demonstrations exceed three cubic feet, but disagree that the excess is "substantial." At all times Ms. Picciotto, Mrs. Thomas, and I attempt to keep our demonstration sites as tidy as possible, and whatever materials we have are arranged neatly, cause no obstruction to any park traffic, represent no threat to any legitimate governmental interest, and are used daily.


Unless we have the following, all of which can be neatly placed between a demonstrator's two signs, we are forced to choose between communicating and staying alive: (1) Enough blankets to stay alive when the temperature is below freezing, about three cubic feet. (2) Sufficient plastic necessary to provide protection from precipitation measures, about one cubic foot. (3) A cubic foot of food and beverages, easily consumed in a day. (4) A can of pens, two clipboards and petitions, literature which can be distributed in one day, an umbrella, camera, tape recorder, a sweater, rain gear, broom and snow shovel, totals about two cubic feet. (5) Two cubic feet of Peace Rocks.


To what extent do you agree or disagree?

d. Artists' supplies

Your letter did not address our inquiry regarding small artists' paints and brushes.


Artists paint pictures in the park regularly. We have photographs taken over the years. Ms. Picciotto is an artist who paints messages on rocks, which she shares with the public who flock to her signs. The brushes and paints she uses are no different from those used by someone painting on canvas.


To what extent you agree or disagree?


a. The problems

Thomas v. Lujan, 791 F. Supp. 321 apparently does stand for the proposition that the three cubic foot regulation is not arbitrary and capricious on its face. Similarly, the three foot attendance regulation has been upheld by the courts. On the other hand, to be reasonable, one must also consider that "(a) government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest." United States v. O'Brien, 391 U.S. 367, 377 (1968).


Now that you know it is not "a box" affixed to the sign, you will probably agree that the sign actually does not violate the regulations. If that is the case, our only remaining problems would be "three cubic feet," and "three foot attendance." Unless you disagree with our representations regarding our "continuous vigils," you will probably agree that our vigils are "demonstrations," and that it furthers no substantial governmental interest, and is unreasonable to require demonstrators to succumb to hypothermia, or go to the bathroom in their pants, in order to "conform to the regulations."

Even if you still honestly believe that the sign does exceed the size limits, unless you contend that the Park Service is somehow precluded from issuing a permit that would allow a demonstrator to have (1) a sign which exceeds the limits set out in the regulation, (2) nine cubic feet of materials, and (3) permission to go to the bathroom and trashcan, then our problem should be solved in one of two ways.

b. Two possible solutions

1. Instruct the Park Police to Stop Bothering Us

As you know, under the provisions of the First Amendment of the US Constitution and the Small Group Permit Exemption contained in 36 CFR Sec. 7, we are not required to obtain a permit to conduct our demonstrations. However, as illustrated by our correspondence, certain aspects of our demonstrations may be interpreted as technical violations of existing Park Service regulations.

We propose that you simply instruct Park Police officers that our demonstrations, as pictured in the accompanying photographs (A, during fair weather, and B, during inclement weather), comply with the valid regulations and that it is improper for them to disturb us with threats and/or intimidations so long as our activities do not exceed the activities pictured in the photographs, and as long as the signs are not "unattended" for longer than seven minutes in any five hour period. In turn, we will agree, in writing if you wish, not to exceed the agreed upon limits. NOTE: We are specifically referring to our signs, which, looking at photograph A, are pictured on the extreme left hand side; the 12'6" x 40 foot sign, and the several cubic yards of materials to the right of our signs belonged to another demonstration.

2. Do Not Oppose a Park Service Permit

We would prefer to continue our activities without the added burden of maintaining a demonstration permit. However, if our first suggested solution is unacceptable, we are willing to apply for a permit to allow the exemptions discussed above.


As your letter implies, previous attempts to resolve these problems through litigation have been less than fruitful. In retrospect, I notice the litigation resolving the facial arbitrary and capricious challenges to the regulations occurred in the context of a Bivens action, and avoided any fact-finding under the "qualified immunity" doctrine. But the limitations attached to any given permit would be reviewable under the APA's arbitrary and capricious standard. See Citizens to Preserve Overton Park v. Volpe, 401 U.S. 402, 416-17 (1971).

We believe the "exemptions" requested in the accompanying permit appliction are "reasonable," as defined in United States v. O'Brien, supra. Therefore, if you cannot simply tell the police to leave us alone, kindly review the accompanying permit application carefully, and


Any specific objection to allowing any of the specific activities proposed on page 2 of the accompanying permit application.

We hope this letter will satisfy your concerns, allow us to communicate with the public without unnecessary interruption, and put an end to our long term misunderstandings.


W. Thomas