Supreme Court 82-1998 Dissenting Opinion

Section I


No. 82-1998





[June 29, 1984]

Justice MARSHALL, with whom JUSTICE BRENNAN joins, dissenting.

The Court's disposition of this case is marked by two related failings.
First, the majority is either unwilling or unable to take seriously the First Amendment claims advanced by respondents. Contrary to the impression given by the Majority, respondents are not supplicants seeking to wheedle an undeserved favor from the Government. They are citizens raising issues of profound public importance who have properly turned to the courts for the vindication of their constitutional rights.

Second, the majority misapplies the test for ascertaining whether a restraint on speech qualifies as a reasonable time, place, and manner regulation. In determining what constitutes a sustainable regulation, the majority fails to subject the alleged interests of the Government to the degree of scrutiny required to ensure that expressive activity protected by the First Amendment remains free of uneccessary limitations.


The proper starting point for analysis of this case is a recognition that the activity in which respondents seek to engage--sleeping in a highly public place, outside, in the winter for the purpose of protesting homelessness--is symbolic speech protected by the First Amendment. The majority assumes, without deciding, that the respondents' conduct is entitled to constitutional protection. ante, at ----. the problem with this assumption is that the court thereby avoids examining closely the reality of respondents' planned expression. The majority's approach denatures respondents' asserted right and thus makes all too easy identification of a governmnet interest sufficient to warrant its abridgement. A realistic appraisal of the competing interests at stake in this case requires a closer look at the nature of the expressive conduct at issue and the context in which that conduct would be displayed.

In late autumn of 1982, respondents sought permission to conduct a round-the-clock demonstration in Lafayette Park and on the Mall. Part of the demonstration would include homeless persons sleeping outside in tents without any other amenities.[1] Respondents sought to begin their demonstration in a date full on ominious meaning to any homeless person: the first day of winter. Respondents were similarly purposeful in choosing demonstration sites. The Court portrays these sites--the Mall and Lafayette Park--in a particular fashion.

[1 The previous winter respondents had held a similar demonstration after courts ruled that the Park Service regulations then in effect did not extend to respondents' proposed activities. Community for Creative Non-Violence (CCNV I) v. Watt. 216 App. U.S. App. D.C. 394, 670 F.2d 1213 (1982). Those activities consisted of setting up and sleeping in nine tents in Lafayette Park. The regulations at issue in this case were promulgated in direct response to CCNV I. 47 Fed. Reg. 24299 (1982).]

According to the Court:

"[Lafayette Park and the Mall are] unique resources that the Federal Government holds in trust for the American people. Lafayette Park is a roughtly seven-acre square located across Pennsylvania Avenue from the White House. Although originally part of the White House grounds, President Jefferson set it aside as a park for the use of residents and visitors. It 'functions as a formal garden park of meticulous landscaping with flowers, trees, fountains, walks and benches. . . . The Mall is a stretch of land running wesward from the Capitol to the Lincoln Memorial some two miles away. It indudes the Washington Monument, a series of reflecting pools, trees, lawns and other greenery. It is bordered, inter alia, by the Smithsonian Institution and the National Gallery of Art. Both the Park and the Mall were included in Major Pierre L'Enfant's original plan for the capital. Both are visited by vast number of visitors from around the country, as well as by large numbers of residents of the Washingon metropolitan area" Ante, at ---.

Missing from the majority's description is any inkling that Lafayette Park and the Mall have served as the sites for some of the most rousing political demonstrations in the Nation's history. It is interesting to learn, I suppose, that Lafayette Park and the Mall were both part of Major Pierre L'Enfant's original plan for the capital. Far more pertinent, however, is that these areas constitute, in the Government's words,'a fitting and powerful forum for political expression and political protest." Brief for Petitioners 11.[2]

[2 'At oral argument, the government informed the Court "that on any given day there will be an average of three or so demonstrations going on" in the Mall-Lafayette Park area. Tr. of Oral Arg. 3-4. Respondents accurately describe Lafayette Park "as the American Analogue to Speaker's Corner' in Hyde Park" Brief for Respondents 16, n, 25.]

The primary[3] purpose for makking sleep an integral part of the demonstration was "to re-enact the central reality of homelessness," Brief for Respondents 2, and to impress upon public consciousness, in as dramatic a way as possible, that homelessness is a widespread problem, often ignored, that confronts its victims with life-threatening deprivations.[4] As one of the homeless men seeking to demonstrate explained:
"Sleeping in Lafayette Park or on the Mall, for me, is to show people that conditions are so poor for the homeless and poor in this city that we would actually sleep outside in the winter to get the point across." Id., at 3.

[3 Another purpose for making sleep part of the demonstration was to enable participants to weather the rigors of the round-the-clock vigil and to encourage other homeless persons to participate in the demonstration. As respondents stated in their application for a demonstration permit "If there was ever any question as to whether sleeping was a necessary element in this demonstration, it should be answered by now [in light of the previous year's demonstration]. No matter how hard we tried to get [homeless persons] to come to Reaganville [the name given to the demonstration by respondents], they simply would not come, until sleeping was permitted." App. 14.]
[4 Estimates on the number of homeless persons in the United States range from two to three million. See Brief for the National Coalitian for the homeless-as Amicus Curiae 3. Though numerically significant, the homeless are politically powerless inasmuch as they lack the financial resources necessary to obtain access to many of the most effective means of persuasion Moreover, homeless persons are likely to be denied access to the vote since the lack of a mailing address or other proof of residence within a State disqualifies an otherwise eligible citizen from registering to vote, Id., at 5.
The detrimental effects of homelessness are manifold and include psychic trauma, circulatory difficulties, infections that refuse to heal, lice infestations, and hypothermia Id. at 14-15. In the extreme, exposure to the elements can lead to death; over the 1983 Christmas weekend in New York City, fourteen homeless persons perished from the cold. See N. Y. Times, Dec. 27, 1983, p. Al., col. 1.]

In a long line of cases, this Court has afforded First Amendment protection to expressive conduct that qualifies as symbolic speech. See, e.g., Tinker v. Des Moines School Dis., 393 U. S. 503 (1969) (black armband worn by students in public school as protest against United States policy in Vietnam war); Brown v. Louisiana, 383 U. S. 131 (1966) (sit-in by Negro students in "whites only" library to protest segregation); Stromberg v. California, 283 U. S. 359 (1931) (flying red flag as gesture of support for communism). In light of the surrounding context, respondents' proposed activity meets the qualifications. The Court has previously acknowledged the importance of context in determining whether an act can properly be denominated as "speech" for First Amendment purposes and has provided guidance concerning the way in which courts should "read" a context in making this determination. The leading case is Spence v. Washington, 418 U. S. 405 (1974), where this Court held that displaying a United States flag with a peace symbol attached to it was conduct protected by the First Amendment. The Court looked first to the intent of the speaker--whether there was an "intent to convey a particularized message"--and second to the perception of the audience--whether "the likelihood was great that the message would be understood by those who viewed it." Id., at 410-411. Here respondents clearly intended to protest the reaiity of homelessness by sleeping outdoors in the winter in the near vicinity of the magisterial residence of the President of the United States. In addition to accentuating the political character of their protest by their choice of location and mode of communication, respondents also intended to underline the meaning of their protest by giving their demonstration satirical names. Respondents planned to name the demonstration on the Mall "Congressional Village," and the demonstation in Lafayette Park, "Reaganville II." App. 13.

Nor can there be any doubt that in the surrounding circumstances the likelihood was great that the political significance of sleeping in the parks would be understood by those who viewed it. Certainly the news media understood the significance of respondents' proposed activity; newspapers and magazines from around the Nation reported their previous sleep-in and their planned display.[5] Ordinary citizens, too, would likely understand the political message intended by respondents. This likelihood stems from the remarkably apt fit between the activity in which respondents seek to engage and the social problem they seek to highlight. By using sleep as an integral part of their mode of protest, respondents "can express with their bodies the poignancy of their plight. They can physically demonstrate the neglect from which they suffer with an articulateness even Dickens could not match." Community for Creative Non-Violence v. Watt, 227 U. S. App. D. C. 19, 34, 703 F. 2d 586, 601 (1983) (Edwards, J. concurring).

[5 See arcicles appended to Declaration of Mary Ellen Hombs, Record, Vol. 1.]

It is true that we all go to sleep as part of our daily regimen and that, for the most part, sleep represents a physical necessity and not a vehicle for expression. But these characteristics need not prevent an activity that is normally devoid of expressive purpose from being used as a novel mode of communication. Sitting or standing in a library is a commonplace activity necessary to facilitate ends usually having nothing to do with making a statement. Moreover, sitting or standing is not conduct that an observer would normally construe as expressive conduct. However, for Negroes to stand or sit in a whites only" library in Louisiana in 1965 was powerfully expressive; in that particular context, those acts became "monuments of protest" against segregation Brown v. Louisiana, 383 U. S., at 139.

The Government contends that a forseeable difficulty of administration counsels against recognizing sleep as a mode of expression protected by the First Amendment. The predicament the Government envisions can be termed "the imposter problem": the problem of distinguishing bona fide protesters from imposters whose requests for permission to sleep in Lafayette Park or the Mall on First Amendment grounds would mask ulterior designs--the simple desire, for example, to avoid the expense of hotel lodgings. The Government maintains that such distinctions cannot be made without inquiring into the sincerity of demonstrators and that such an inquiry would itself pose dangers to First Amendment values because it wauld necessariiy be content-sensitive. I find this argument unpersuasive. First, a variety of circumstances already require government agencies to engage in the delicate task of inquiring into the sincerity of claimants asserting First Amendment rights. See, e. g., Wisconsin v. Yodar, 406 U. S. 205, 215-216 (1972) (exception of members of religious group from compulsory education statute justified by group's adherence to deep religious conviction rather than subjective secular values); Welsh v. United States, 398 U. S. 333, 343-344 (1910)(eligibility for exemption from military service as consciencious objector status justified by sincere religious beliefs). It is thus incorrect to imply that any scrutiny of the asserted purpose of persons seekng a permit to display sleeping as a form of symbolic speech would import something altogether new and disturbing into our First Amendment jurisprudence. Second, the administrative difficulty the Government envisions is now nothing more than a vague apprehension. If permitting sleep to be used as a form of protected First Amendment activity actually created the administrative problems the Government now envisions, there would emerge a clear factual basis upon which to establish the necessity for the limitation the Government advocates.

The Government's final argument against granting respondents' proposed activity any degree of First Amendment protection is that tbe contextual analysis upon which respondents rely is fatally flawed by overinclusiveness. The Government contends that the Spence approach is overinciusive because it accords First Amendment status to a wide variety of acts that, although expressive, are obviously subject to prohibition. As the Government notes, "[a]ctions such as assassination of political figures and the bombing of government buildings can fairly be characterized as intended to convey a message that is readily perceived by the public." Brief for Petitioner 24, n.18. The Government's argument would pose a difficult problem were the determination whether an act constitutes "speech" the end of First Amendment analysis. But such a determination is not the end. If an act is defined as speech, it must still be balanced against countervailing government interests. The balancing which the First Amendment requires would doom any argument seeking to protect anti-social acts such as assassination or destruction of government property from government interference because compelling interests would outweigh the expressive value of such conduct.

Section II

Syllabus SCT82-1998
Concurring Opinion
SCT 82-1998 Intro
Case Listing

Case Listing --- Proposition One ---- Peace Park