Supreme Court 82-1998 Dissenting Opinion

Section II


Although sleep in the context of this case is symbolic speech protected by the First Amendment, it is nonetheless subject to reasonable time, place, and manner restrictions. I agree with the standard enunciated by the majority:

"[Restrictions of this kind are valid provided that they are justified Without reference to the content of the regulated speech, that they are narrowly tailored to serve a significant governmental interest, and that they leave open ample alternative channels for communication of the information"

Ante, at 5 (citations omitted).[6] I conclude, however, that the regulations at issue in this case, as applied to respondents, fail to satisfy this standard.

[6 I also agree with the majority no substantial difference distiguishes the test applicable to time, place, and manner restrictions and the test articulated in United States v. O'Brien, 391 U. S. 367 (1968). See Ante, at 10.]

According to the maiority, the significant government interest advanced by denying respondents' request to engage in sleepspeech is the interest in "maintaining the parks in the heart of our capital in an attractive and intact condition, readrily available to the millions of people who wish to see and enjoy them by their presence." Ante, at 7. That interest is indeed signifrcant. However, neither the Government nor the majority adequately explains how prohibiting respondents' planned activity will substntially futher that interest.

The majority's attempted explanation begins With the curious statement that it seriously doubts that the First Amendment requires the Park Service to permit a demonstration in Lafayette Park and the Mall involving a 24-hour vigil and the erection of tents to accommodate 150 people. Ante, at 8. I cannot perceive why the Court should have "serious doubts" regarding this matter and it provides no explanation for its uncertainty. Furthermore, even if the majority's doubts were well-founded, I cannot see how such doubts relate to the problem at hand. The issue posed by this case is not whether the Government is constitutionally compelled to permit the erection of tents and the staging of a continuous 24hour vigil; raiher, the issue is whether any substantial government interest is served by banning sleep that is part of a political demonstration.

What the Court may be suggesting is that if the tents and the 24-hour vigil are permitted, but not constitutionally required to be permitted, then respondents have no constitutional right to engage in expressive conduct that supplements these activities. Put in arithmetical terms, the Court appears to contend that if X is permitted by grace rather than by constitutional compulsion, x + 1 can be denied without regard to the requirements the Govenment must normally satisfy in order to restrain protected activity. This notion, however, represents a misguided conception of the First Amendment. The First Amendment requires the Government to justify every instance of abridgement. That requirement stems from our oft-stated recognition that the First Amendment was designed to secure "the widest possible dissemination of infonnation from diverse and antagonistic sources," Associated Press v. United States, 326 U. S. 1, 20 (1945), and to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people." Roth v. United States, 354 U. S. 466, 484 (1957). See also Buckley v. VaLeo, 421 U. S. 1, 49 (1976); New York Times Co. v. Sullivan, 356 U. S. 254, 266 (1964); Whittney v. California, 2'i4 U. S. 35?, 375-378 (1927) (Brandeis, J., concurring). Moreover, the stringency of that requirement is not diminished simply because the activity the Government seeks to restrain is supplemental to other activity that the Government may have permitted out ot grace but was not constitutionally compelled to allow. If the Government cannot adequately justify abridgment of protected expression, there is no reason why citizens should be prevented from exercising the first of the rights safeguarded by our Bill of Rights.

The majority's second argument is comprised of the suggestion that, although sleeping contains an element of expression, "Its major value to [respondents'] demonstration would have been facilitative." Ante, at 8. While this observation does provide a hint of the weight the Court attached to respondents' First Amendment claims[7], it is utterly irrelevant to whether the Government's ban on sleeping advances a substantial government interest.

[7 The facilatative purpose of the sleep-in takes away nothing from its independent status as symbolic speech. Moreover, facilitative conduct that is closely related to expressive activity is itself protected by First Amendment considerations. I therefore find myself in agreement With Judge Ginsburg who noted that "the personal non-communocative aspect of sleeping in symbolic tents at a demonstration site bears a close, functional relationship to an activity that is commonly comprehended as 'free speech.'" Community for Creative Non-Violence v. Watt, 227 U. S. App. D. C. 19, 40, 703 F. 2d, 586, 607 (1983). "[S]leeping in the tents rather than simply standing or sitting down in them, allows the demonstrator to sustain his ot her protest without stopping short of the officially-granted round-the-clock permission." Ibid. For me, as for Judge Ginsburg, that Linkage, itself "suffices to require a genuine effort to balance the demonstrators' interests against other concerns for which the government bears responsibiiity. Ibid.]

The majority's third argument is based upon two claims. The first is that the ban on sleeping relieves the Govenrment of an administrative burden because, without the flat ban, the process of issuing and denying permits to other demonstrators asserting First Amendment rights to sleep in the parks could present difficult problems for the Park Service." Ante, at 8-9. The second is that the ban on sleeping will increase the probability that "some around-the-clock demonstrations for days on end will not materialize, [that] others will be limited in size and duration, and that the purpose of the regulation will thus be materially served", ante, at 9, that purpose being "to limit tbe wear and tear on park properties. " Ante, at 10.

The flaw in these two contentions is that neither is supported by a factual showing that evinces a real, as opposed to a merely speculative, problem. The majority fails to offer any evidence indicating that the absence of an absolute ban on sleeping would present administiative problems to the Park Service that are substantially more difficult than those it ordinarily confronts. A mere apprehension ot difficulties should not be enough to overcome the right to free expression. See United States v. Grace, 461 U. S. ----, (1983); Tinker v. Des Moines School Dist., 393 U. S., at 508. Moreover, if the Government's interest in avoiding administrative difficulties were truly "substantial," one would expect the agency most involved in administering the parks at least to allude to such an interest. Here, however, the perceived difficulty of administering requests from other demonstrators seeking to convey messages through sleeping was not among the reasons underlying the Park Service regulations.[8 See 47 Fed. Reg. 24301 (1982).] Nor was it mentioned by the Park Service in its rejection of respondents' particuiar Request.[9 App. 16-17]

The Court's erroneous application of the standard for ascertaining a reasonable time, place, and manner restriction is also revealed by the majority's conclusion that a substantial governmental interest is served by the sleeping ban because it will discourage around-the-clock demonstrations for days" and thus futher tbe regulation's purpose "to limit wear and tear on park properties." Ante, at 10. The majority cites no evidence indicating that sleeping engaged in as symbolic speech will cause sztbstantial wear and tear on park property. Furthermore, the Government's application of the sleeping ban in the circumstances of this case is strikingly underinclusive. The majority acknowledges that a proper time, place, and manner restriction must be "narrowly tailored." Here, however, the tailoring requirement is virtually forsaken inasmuch as the Government offers no justification for applying its absolute ban on sleeping yet is willing to allow respondents to engage in activities--such as feigned sleeping--that is no less burdensome.

In short, there are no substantial government interests advanced by the Government's regulations as applied to respondents. All that the Court's decision advances are the prerogatives of a bureaucracy that over the years has shown an implacable hostility toward citizens' exercise of First Amendment rights.[10]

[10 At oral argument, the Government suggested that the ban on sleeping should not be invalidated as applied to respondents simply because the Government is willing to allow respondents to engage in other non-verbal acts of expression that may also trench upon the government interests served by the ban. Tr. of Oral Arg. 15, 23. The Government maintains that such a result makes the Government a victim of its own generosity.

However the Government's characterization of itself as an unstinting provider of opportunities for protected expression is thoroughly discredited by a long line of decisions compelling the National Park Service to allow the expressive conduct it now claims to permit as a matter of grace. See, c. g., Women Strike for Peace v. Morton, 153 U. S. App. D. C. 198, 472 F. 2d 1273 (1972); A Quaker Action Group v. Morton, 170 U. S. App. D. C. 124, 516 F. 2d 717 (1975); United States v. Abney, 175 U. S. App. D. C. 247, 534 F. 2d 984 (1976).]

Section III

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

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