Watt v. CCNV

II. DISCUSSION

The district court's decision in this case necessarily followed from its conclusions that: (1) CCNV's demonstration falls within the scope of the amended anti-camping regulations; (2) sleeping, within the context of CCNV's demonstration, falls outside the scope of the first amendment; and(3) even assuming first amendment scrutiny is required, the new anti camping regulations are constitutional as applied to CCNV's proposed sleeping activities. Although we agree that CCNV's proposed activities fall within the government's amended regulations, we cannot uphold the constitutionality of the regulations as applied to CCNV.

A. The Scope of the New Regulations

CCNV contends that it does not fall under the amended anticamping regulations because it seeks to use sleep as a form of expression and not for "living accommodation" purposes. We cannot accept this argument. The regulation's exclusion of "the intent of the participants or the nature of any other activities in which they may also be engaging," 36 C.F.R. зз 50.19(e)(8), 50.27(a) (1982), underscores the evident purpose of the regulations to cover "living accommodations" that may also be expressive of the demonstrators' message. Indeed, in the prefatory statement accompanying the 1982 amendments, the Park Service indicated that it was "amending з 50.19(e)(8) to forbid specifically the use of any such structures, including tents, for the purpose of conducting any living accommodation activity," which was defined to include "sleeping." 47 Fed.Reg. at 24,304 (emphasis added). As we stated in CCNV I, the court may rely upon an agency's contemporaneously issued policy statement as an accurate representation of the agency's purpose. 670 F.2d at 1216 (citing Environmenta] Defense Fund,Inc. v. EPA, 636 F.2d 1267, 1280 (D.C.Cir.1980)). It thus seems clear to us that these demonstrators come under the new regulations.[6]

B. The Scope of the First Amendment

The scope of the first amendment's protection of free expression is not as amenable to precise definition as the Park Service's prohibition of "camping." The Supreme Court has afforded first amendment scrutiny to government regulation of such expressive activities as demonstrating,[7]

[6 See also CCNV 1, 670 F.2d at 1217 n. 26 (confirming this distinction). The motions panel in WAW was correct in holding that the action taken by the district court "directly contravened the controlling precedent." WAW. 506 F.2d at 55 n. 6. We refuse, however, to read the precedent as broadly as that panel. The Supreme Court's decision on which that panel grounded its argument,Morton v. Quaker Action Group, 402 U.S. 926, 91 S.Ct. 1398, 28 L.Ed.2d 665 (1971), was issued without an opinion. Absent any supporting reasoning, it should not, and indeed cannot, be cited as precedent for the proposition that sleep can never be protected by the first amendment.]

[7 Because CCNV's proposed conduct is clearly proscribed by the regulations, CCNV may not claim that those regulations are constitutional ly void for vagueness. See, e.g., Parker v. Levy,417 U.S. 733, 756, 94 S.Ct. 2547. 2561, 41 L.Ed.ad 439 (1974) ("One to whose conduct a statute clearly applies may not successfully challenge it for vagueness.").

We also do not find the regulations to be overbroad because the amount of constitutionally protected activity covered by the regulations (assuming arguendo that such activity exists in this case) cannot reasonably be calculated as "substantial." As the Supreme Court stated in Broadrick v. Oklahoma, 413 U.S. ~01, 615, 93 S.Ct. 2908. 2917, 37 L.Ed.2d 830 (1973), "[w]here conduct and not merely speech is involved, we believe that the overbreadth of a statute must nd only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep." The government's ban against sleeping in tents applies to all park areas administered by National Capital Parks in the District of Columbia, Maryland, and Virginia. 36 C.F.R з 50.1 (1982). Because camping in these areas is primarily for recreation, the chances of the ban directly conflicting with sleeping as an arguable form of expression must be estimated as small. There is certainly no evidence before us today to suggest that any such conflict can be characterized as "substantial." See,e.g., Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.ad 697 (1963).]

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marching,[8] leafletting,[9] picketing,[10] wearing armbands,[11] and affixing a peace symbol to an American flag.[12] Although we acknowledge that all conduct need not be labelled "speech" merely because the doer "intends thereby to express an idea," United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct 1673, 1678, 20 L.Ed.2d 672 (1968), we also recognize that expressive conduct cannot be written out of the Constitiltion merely because the government may wish to label it "camping." The values implicit in the first amendment are too multifaceted to be subject to wooden categorizations.[13]

In the present case, our evaluation of the government's ban on sleeping in symbolic structures is underscored by first amendment scrutiny because, as applied to CCNV's proposed demonstration, the government's ban will clearly affect expression: there can be no doubt that the sleeping proposed by CCNV is carefully designed to, and in fact will, express the demonstrators' message that homeless persons have nowhere else to go. The "test" used by the Supreme Court to determine whether conduct is "sufficiently imbued with elements of communication to fall within the scope of the First ... Amendment[]," Spence v. Washington, 418 U.S. 405, 409, 94 S.Ct 2727, 2729, 41 L.Ed.2d 842 (1974) (per curiam), is to examine the intent of the would-be communicator and the context in which his or her conduct takes place. In Spence, for example, the Court held that displaying the American flag with an attached peace symbol in the context of demonstrations against the bombings of Cambodia and the Kent State killings: was not an act of mindless nihilism. Rather, it was a pointed expression of anguish by appellant about the then-current domestic and foreign affairs of his government. An intent to convey a particularized message was present, and in the surrounding circumstances the likeli-

[8 See,e.g., Shuttleworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed. 162 (1969).]

[9 See e.g., Schneider v. Town of Irvington, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).]

[10 See e.g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed.1093 (1940).]

[11 See e.g., Tinker v. Des Moines School District, 393 U.S.503, 89 S.Ct.733, 21 L.Ed.2d 731 (1969).]

[12 See e.g., Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974).]

[13 It is far too late in the day to pretend that the Supreme Court has sanctioned an unwavering first amendment line between speech and conduct. Such a view cannot be squared with either the holdings of those cases extending first amendment protection to a wide range of physical activities, see supra cases cited in notes 7-12, or with the Court's occasional statements on the matter. Eg., Brown v. Louisiana, 383 U.S. 131, 141-42, 86 S.Ct. 719, 723-724, 15 L.Ed.2d 731 (1969) [First Amendment] rights are not confined to verbal expression. They embrace appropriate types of action which certainly include the right in a peaceable and orderly manner to protest to protest by silent and reproachful presence..."); see also Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV.L.Rev. 1482, 1495 (1975) ("The O'Brien Court thus quite wisely dropped the 'speech-conduct' distinction as quickly as it had picked it up."). The theoretical objections to a speech-conduct distinction have been noted by several commentators. See, e.g., Baker, Scope of the First Amendment Freedom of Speech. 25 U.C.L.A.L.REV. 964, 1O1O (1978) ("If the distinction is between 'expressing' and 'doing,' most conduct falls into both categories."); Ely, supra, at 1495 ("Attempts to determine which element 'predominates' will ... inevitably degenerate into question-begging judgments about whether the activity should be protected."); Henkin, The Supreme Court, 1967 Term--Foreword: On Drawing Lines, 82 HARV.L.REV. 63, 79 (1968) ("Even singular, idiosyncratic forms of expression can prove no less articulate, as when Simeon spent his days sitting on a pillar in the desert or the King of Denmark wore a sixpointed star."); Note, Symbolic Conduct, 68 COLUM.L.REV. 1091,1108 (1968) ("Recent work in communications theory underlines the connection between free choice of the medium of communication and freedom of expression."). Even Professor Emerson, a leading proponent of the speech-action distinction, acknowledges that "the clearest manifestation of expression involve[s] some action, as in the case of holding a meeting, publishing a newspaper, or merely talking." T. Emerson, THE SYSTEM OF FREEDOM OF EXPRESSION 80 (1970).]

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hood was great that the message would be understood by those who viewed it. Id. at 410-11, 94 S.Ct. at 2730-2731 (emphasis added). This court has already held that, within the context of an individual's round-the-clock vigil, sleeping could be taken as "sufficiently expressive in nature to implicate First Amendment scrutiny in the first instance. Abney, 534 F2d at 985. In the present case, within the context of a large demonstration with tents, placards,[14] and verbal explanations,[15] the communicative context is sufficiently clear that the participant's sleeping cannot be arbitrarily ruled out of the arena of expressive conduct.[16]

Indeed, we cannot understand how the government can deny the indicia of political expression that permeate CCNV's pointed use of the simple act of sleeping. The protestors choose to sleep, purposely across from the White House and Capitol grounds, in sparsely appointed tents which the Park Service has already designated as undeniably "symbolic." Their permit application states that this conduct is intended to send the same message as this court recognized was sent in CCNV's 1981-82 demonstration: that the problems of the homeless will not simply disappear into the night.[17] Unlike the thousands of homeless men and women whose nights are spent on grates, in doorways, or in back alleys, these demonstrators propose to sleep within the conspicuous context of two organized demonstration sites that create a backdrop--by the combined use of structures, explanatory signs, and verbal discourse--to ensure that the message sought to be sent by the demonstrators' conduct will, in all likelihood, be received. True, CCNV has devised a means of expression that also serves to provide the protestors with the "luxury" of a blanket and a bit of groundspace, within a tent, with which to pass a winter's night. But for those genuinely homeless persons who choose to forsake temporarily their grates and doorways for these tents, the communicative dimension of the sleeping in this demonstration is not overshadowed by the simultaneous provision of a single amenity. The first amendment is not so rarefied that it cannot accommodate within its scope the conduct of these demonstrators who use their bodies to express the poignancy of their plight.

[14 See Photographs of 1981-82 CCNV demonstration dated February 22, 1982, reprinted in RD 17; Declaration of Gabrial Leanza, 17, reprinted in RD 19. II. See Second Declaration of Mitch Snyder.]

[15 reprinted in RD 15; Declaration of Gabrial Leanza, 18, reprinted in RD 19.]

[16 Although CCNV clearly evidences in its permit application an intent to express a message through the protestors' sleeping, it also documents a very functional view of sleeping: that sleeping opportunities are vital to its demonstration in order to make it possible for the homeless to attend. See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2. The government contended at oral argument that CCNV had thus belied any true intent to communicate a message through the participants' sleeping. But we do not find the government's argument to be so conclusive. To the extent that we are assessing CCNV's intent, and not its skill in drafting documents, we cannot close our eyes to the fact that CCNVs application indicates that sleeping will serve both an expressive and functional purpose. Moreover, we note that CCNV need not prove the intent of its demonstrators by any sort of preponderance of evidence. As we indicate in note 31 infra, demonstrators should be held to no higher standard than the advancement of a plausible contention that their con duct is intended to, and in the context of their demonstration likely will, express a message. In this case, such a plausible contention is supplied by CCNVs intent to model this year's demonstration after last year's. Despite what must surely have been the same sociological realities of the homeless last year, the CCNV I court found that sleeping in the tents in the winter of 1981-82 sent an unmistakable message. 670 F.2d at 1217.]

[17 Although the CCNV I court did not decide the constitutional issue, it is unclear how last year's sleeping could have been sufficiently expressive for the purpose of satisfying the Park Service's old policy criterion ("use of symbolic campsites reasonably related to First Amendment activities," 46 Fed.Reg. 55.959. 55.961 (1981)), but remain insufficiently expressive to fall within the first amendment this year. As CCNV indicates in its 1982 application, the demonstration planned for this year is modeled after last year's demonstration. See CCNV ap plication to demonstrate filed September 7,1982, reprinted in RD 1, at 2.]

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We add, moreover, that even were we not to focus on the peculiarly expressive nature of sleeping, first amendment scrutiny would still be implicated. This conclusion stems from the fact that the protestors' purpose, whether asleep or awake, is to maintain a "symbolic presence that makes more visible and concrete the results of [presidential and congressional] inaction" on the conditions of the homeless. See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2. In short, the demonstration seek to create an inescapable night-and-day reminder to the nation's political leadership that homeless persons exist. Given this undeniable intent, and the contextual fact that the demonstration will take place at the seat of our national government, it is clear that CCNV's proposed "presence" is intended to be expressive regardless of whether the demonstrators sit down, lie down, or even sleep during the course of the demonstration. Thus, whatever the particular form of the protestors' presence at night, their presence itself implicates the first amendment. In this respect, CCNV's twenty-four hour presence is entitled to the same first amendment protection as a vigil . Although not as small, stylized, or silent as the "reproachful presence" in Brown v. Louisiana, 383 U.S. 131, 142, 86 S.Ct 719, 724, 15 L.Ed.2d 637 (1965) (silent civil rights vigil in a segregated public library), it is identical in both concept and purpose to such conduct. See United States v. Abney, 534 F.2d 984 (D.C.Cir. 1976) (sleeping as part of a vigil in Lafayette Square entitled to first amendment scrutiny in the first instance).

We wish to make clear, however, that by holding sleeping to be expressive conduct within the context of this particular demonstration, we reject two subsidiary arguments urged on us by CCNV. First, we reject CCNV's contention that sleeping in its demonstration is uniquely deserving of first amendment protection because it directly embodies the group's message that homeless people have no place else to sleep.[18] Under CCNV's distinction, a group with a "no-place-to-sleep" message (such as the homelessness of refugees) could express it by deliberately sleeping, but a group with a different message (such as opposition to the nuclear arms race) could not sleep. Such a distinction is impermissible, however, because it would require the government to draw distinctions among groups desiring to express themselves through sleeping depending on the subject matter or content of their message and its alleged relationship to sleep, something the first amendment is designed to prevent. See,e.g., Consolidated Edison Co. v. Public Service Commission, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980); L. TRIBE, AMERICAN CONSTITUTIONAL LAW 9 12 2, at 580 (1978). Second, we also reject CCNV's argument that its sleeping must be protected because it is the most effective means by which the group can convey its message.[19] The first amendment does not guarantee individuals access to the most effective channels of communication. See, e.g., Adderley v. Florida, 385 U.S. 39, 47-48, 87 S.Ct 242, 247-248, 17 L.Ed.2d 149 (1966). On the other hand, the fact that CCNV's manner of expression may turn out to be quite effective does not make it any the less "speech."[20]

C. The Regulation as Applied

That CCNV's conduct comes within the scope of the first amendment, however,

[18 Appellants' Reply to Opposition to Appellants' Emergency Motion for Injunction Pending Appeal and Opposition to Appellants' Motion for Summary Affirmance 20.]

[19 Appellants' Reply, supra note 18, at 12-13.]

[20 Indeed, as Professor Tribe indicates, there is an identifiable interest in according unorthodox modes of expression first amendment protection:

If only orthodox modes of expression were protected,'The old saw that familiarity breeds contempt," ... might mean that truly effective communication would be left undefended by the first amendment. Moreover, ... Laws which leave unorthodox media defenseless in effect favor orthodox messages... L. TRlBE, AMERICAN CONSTITUTIONAL LAW 12-20, at 685 n. 12, (quoting Ely, supra note 13, at 1489) (emphasis in original).]

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only begins our constitutional analysis. In United States v. O'Brien, 391 U.S. 367, 88; S.Ct 1673, 20 L.Ed.2d 672 (1968), the Supreme Court noted that "when 'speech' and 'nonspeech' elements are combined in the same course of conduct, a sufficiently important governmental interest in regulating the nonspeech element can justify incidental limitations on First Amendment freedoms." Id. at 376, 88 S.Ct at 1678. The O'Brien Court then established that a governmental interest may be 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. Id. at 377, 88 S.Ct at 1679. In short, O'Brien requires us to engage in a balancing of first amendment freedoms and their societal costs [21] that is structured to place a thumb on the first amendment side of the scales.[22]

In approaching this task, we are mindful that CCNV seeks a permit for the exercise of first amendment rights on public park land whose use for communication is of special importance:

There is an unmistakable symbolic significance in demonstrating close to the White House or on the Capitol grounds which, while not easily quantifiable, is of undoubted importance in the constitutional balance. Although this theory has been used to justify demonstrations near state capitols as well, see Edwards v. South Carolina, 372 U.S. 229 [83 S.Ct 680, 9 L.Ed.2d 697] (1963), it is in Washington--where a petition for redress of national grievances must literally be brought--that the theory has its primary application. Women Strike for Peace v. Morton, 472 F.2d 1273, 1287 (D.C.Cir.1972) (Wright, J., concurring). As the Supreme Court added in Grayned v. City of Rockford, 408 U.S. 104, 115, 92 S.Ct. 2294,2302, 33 L.Ed.2d 222 (1972), "[t]he right to use a public place for expressive activity may be restricted only for weighty reasons."

The Park Service argues that its prohibition of CCNV's sleeping in the symbolic tents is justified because such activity could: (1) deprive others of the use of nationally significant space; (2) cause significant damage to park resources; (3) create serious sanitation problems; (4) seriously tax law enforcement resources; and (5) increase requests for such activity in connection with other demonstrations that would, in turn, create pressure from nondemonstrating visitors for similar accommodations. 47 Fed.Reg. 24,302 (1982). These interests are identified by the Park Service in its brief in this case [23] and were also identified in its 1982 rulemaking to justify the flat prohibition of "camping." Id. "Camping," however, includes such non-sleeping activities as making fires, digging, earth breaking, and cooking. Id. at 24,305. Because CCNV neither seeks to do any of these activities, nor requests permission to establish medical or sanitation facilities,[24] to store personal belongings,[25] or even to serve

[21 "The basic issue in all such cases is how much the First Amendment requires society to give up in the interest of communication--that is, what price we are willing to put on free speech." Women Strike for Peace v. Morton, 472 F.2d 1273, 12&4 (D.C.Cir.1972) (Wright J., concurring).]

[22 The metaphor of placing a judicial thumb on the first amendment side of the scales may be attributed to the genius of Professor Harry Kalven. See Kalven, The Concept of the Public Forum: Cox v. Louisiana, 1965 SUP.CT.REV. 1, 28.]

[23 Appellees' Response in Opposition to Appellants' Emergency Motion for Injunction Pending Appeal 8-9.]

[24 See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2.]

[25 See Letter from Mitch Snyder to Park Service dated March 5. 1982, reprinted in RD 19, at 1.]

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food [26] the government's interests must be weighed against only that activity which CCNV seeks to do: sleep within tents that they have been given permission to erect [27] and at which they have been allowed to maintain a twenty-four hour presence.

This is not to say, however, that the government's interest in prohibiting expressive sleeping at symbolic campsites that is part of a demonstration must be weighed in a vacuum. In Heffron v.International Society for Krishna Consciousness, 452 U.S. 640, 101 S.Ct 2559, 69 L.Ed.2d 298 (1981), the Supreme Court held that the government's interest in prohibiting first amendment activity must be assessed not in terms of letting just one group pursue the activity but in terms of letting all similarly situated groups do so. Id. at 650, 101 S.Ct at 2567. Transposed to the first amendment activity involved in this case, therefore, Heffron requires us to determine if the government's interests in park preservation, law enforcement, and the like (outlined above) are furthered by prohibiting expressive sleeping by all individuals or groups similarly situated to CCNV--that is, by all those who wish to engage in sleeping as part of their demonstration and have been granted renewable permits to demonstrate on a twenty-four hour basis on sites at which they have also been allowed to erect temporary symbolic structures. The dissent insists that we weigh the government's interests in prohibiting sleeping by all groups-whether for first amendment purposes or not--lest we "nickle and dime every regulation to death." Dissenting Opinion at. 616. The dissent's addition of makeweights to the government's side of the balance, however, shortchanges the first amendment's premium on precision. Here, the Park Service has already established a renewable permit pracedure that limits the number of people who are allowed to demonstrate or to erect symbolic structures. The interests of people who do not possess a permit are simply not at issue in this case.

[26 See CCNV application to demonstrate filed September 7, 1982, reprinted in RD 1, at 2.]

[27 CCNV has never maintained that it needs or desires to use cots in these symbolic campsites. See December 5th Declaration of Mitch Snyder, ╢5, reprinted in RD 21. We note that CCNV used bedding materials blankets) last year and that it is quite likely that it will do so again. This use of bedding is one of the indicia the Park Service employs to determine if "camping" is taking place. See 36 C.F.R. gs 50. 19(e)(8), 50.27(a) (1982). We hold, however, that in the context of sleeping in tents, the government has no discernible reason to prohibit such bedding in a tent requires no additional ground space, is out of view, and has no connection to any of the other interests asserted by the government in this case--sanitation facilities, law enforcement personnel, or living accommodation subsidies.]

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