984 534 FEDERAL REPORTER, 2d Series
UNITED STATES of America
[2. He had been arrested at least 11 times previously. but prosecution was declined by the United States Attorney's office on those occasions. The behavior of that office and the Park Police has on the whole been exemplary. They have tried to arrange alternative lodging for Abney, although he remained steadfast in his resolve to carry on his vigil in the park, and they once arranged for a new round of negotiations between Abnev and the VA.]
[3. The regulation provides in pertinent part: Committing a nuisance of any kind or engaging in disorderly conduct within an area covered by this part is prohibited. The following shall include, but shall not be construed to limit acts committed in areas covered by this part which constitute disorderly and unlawful conduct.
[4. The Government argues that we are foreclosed from finding the sleeping speech-related be cause of certain language in Vietnam Veterans Against the War v. Morton (VVAW), 164 U.S. App.D.C. 391. 506 F.2d 53 (1974). We disagree. In that case a motions panel of this court summarily reversed a District Court decree which would have permitted the VVAW to camp in a certain spot on the Mall near the Capitol. Summary reversal was appropriate because the District Court's action "directly contravened the controlling precedent," id., 164 U.S.App.D.C. at 393 n.6, 506 F.2d at 55 n.6, a decree of the Supreme Court issued on an expedited basis without opinion just three years before, Morton v. A Quaker Action Group, 402 U.S. 926, 91 S.Ct. 1398. 28 L.Ed.2d 665 (1971), involving the same location, the same facts, "the same litigants and resolving the same legal issues." 164 U.S.App.D.C. at 394, 506 F.2d at 56 (footnote omitted). That was the holding of the VVAW case, as set forth in the first paragraph of Part II of the opinion. On no other basis would summary reversal have been warranted. The remainder of the opinion, although entitled to careful consideration, is not binding, not being a part of the holding.]
sleep in the park beyond the time limit specified, but it contains no "narrow, objective, and definite standards to guide the licensing authority," id. at 151, 89 S.Ct at 938, 22 L.Ed.2d at 167, thereby to guard against the danger of arbitrary action or de facto censorship of certain points of view. If the Shuttlesworth standard of "public welfare, peace, safety, health, decency, good order, morals, or convenience" is facially unconstitutional, the totally unfettered discretion granted to the Superintendent here cannot survive constitutional challenge. See also Niemotko v. Maryland, 340 U.S. 268, 271-272, 71 S.Ct. 325, 327, 95 L.Ed.Zd 267, 270 (1951) (permits required by custom rather than by statute).