A. The Regulatory Framework
[T]here is no evidence in the Record suggesting that the handful of tents in Lafayette Park is intended "primarily for living accommodation." The appellees will not prepare or serve food there; they will not build fires or break ground; they will not establish sanitary or medical facilities. Indeed the uncontroverted evidence in the case is that the purpose of the symbolic campsite in Lafayette Park is "primarily" to express the protestors' message and not to serve as a temporary solution to the problems of homeless persons. Thus the only activity at issue here -- sleeping in already erected symbolic tents-cannot be considered "camping" Id. at 1217. As a result of the court's decision, CCNV staged its demonstration, including sleeping, for approximately seven weeks last winter.
discretion inherent in this latter determination is evidenced by the Park Service"s authorization, for participants in a Vietnam veterans' demonstration on the Mall in May 1982,  of all-night sleep at a mock Vietnam War-era "firebase" where some of the demonstration were periodically roused to stand symbolic "guard duty." See Park Service Permit to Vietnam Veterans Against the War dated April 20, 1982 and accompanying letter, reprinted in Record Document (RD) 5. The only apparent distinction between the sleeping in the veterans' demonstration and the sleeping proposed by CCNV is that the veterans slept on the ground, without any shelter. According to the Park Service's interpretation of the new regulations, one's participation in a demonstration as a sleeper becomes impermissible "camping" when it is done within any temporary structure erected as part of the demonstration.
B. The Case Law
[3 Despite conflicting evidence in the record as to whether some of the veterans slept all night,it is clear that the Park Service authorized at least some participants in the demonstration to"be asleep in the area at all times during the night" Id]
[4 Section 50.19(e)(8) was promulgated in response to the decision of this court in Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C. Cir.1972) (per curiam). See 47 Fed.Reg.24.304 (1982). In that case, the court held that Women Strike for Peace, an anti-war organization, could erect a temporary display on the Ellipse. Although the per curiam opinion was followed by three separate statements, the reasoning of the judges was clear: "the Park Service is required to allow the erection of structures by demonstrators to the same extent that it participates in or sponsors the erection of structures itself." Id. at 24,300. The assumption that lies behind this proposition is also clear: "[a structure] is a vehicle for expression of views ... and [to the extent that it acts as such is] entitled to a degree of First Amendment protection." 472 F.2d at 1288 (Wright, J., concurring); see also id. at 1295 (Leventhal, J.. concurring) ("Structures on park land, even though temporary, are within the reach of freedom of communications..."). With our opinion today, we reaffirm the result reached in that decision.]]
ing in Lafayette Park); Women Strike for Peace v. Morton, 472 F.2d 1273 (D.C.Cir. 1972) (display on Ellipse); Jeannette Rankin Brigade v. Chief of Capitol Police, 421 F.2d 1090 (D.C.Cir.1969) (assembly on Capitol grounds). It should not be surprising, therefore, to learn that from this considerable history of decisionmaking the court has on several occasions addressed the propriety vel non of sleeping, in connection with public demonstrations, on the Mall and in Lafayette Park.
of [a] symbolic campsite." Moreover, as the District Court found, in this case sleeping itself may express the message that these persons are homeless and so have nowhere else to go. 670 F.2d at 1216-17 (footnote omitted) (emphasis in original). When the CCNV I decision is added to the decisions of this court in Abney and Quaker Action, it is quite clear that on several occasions this court has acknowledged that sleep can be "expressive," or part of a political protest, for the purposes of either administrative or constitutional classifications.Discussion