Watt v. CCNV


The second distributor's symbols, however, convey as strong a message as spoken or printed words. That the two distributors might be treated differently under Judge Scalia's theory strays far from "common and common-sense understanding." Scalia Opinion at 622. That the two might be treated equally under Judge Scalia's theory if the second distributor prints a word--any word--on the object distributed, demonstrates the ultimately untenable character of the attempted distinction. I am troubled too by an idea tried out tentatively in Judge Wilkey's dissenting opinion relating to the appropriate classification of the "free speech" interest asserted. A workable approach to expressive symbols or conduct, Judge Wilkey's dissent suggests, might distinguish "traditional communicative activit[y]" (marching and picketing are so described), from non-traditional, even if equally communicative, activity (wearing armbands and displaying symbolic flags are cited in this category): all conduct would count as "speech" sheltered from "proscription specifically designed to suppress expressive connotation"; only "traditional activities" would "qualify for purposes of avoiding a general prohibition not directed at communicative content." [6] Case law does not so compartmentalize conduct that has no purpose other than expression, [7] and I do not grasp the sense of, or the need for, the suggested two-level approach. [8] Why should marching attract full "free speech" protection while armband-wearing attracts less complete insulation; why should courts stamp speaking with one's feet "traditional" but flying a symbolic flag non-traditional [9]

At the same time, I hesitate, more than Judge Mikva and Judge Edwards do, to treat the on-site sleep of a round-the-clock demonstrator as indistinguishable for the purpose at hand from the soap box speech, leaflet distribution, protest march, armband or flag display. CCNV's sleep may speak "poignantly" to passersby, but it is not designed "100%" as expression. [10] It has a more commonly recognized aspect; [11] sleep

[6 Wilkey Opinion at nn. 33 & 34 and accompanying text; cf. Ely, Rag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 ~FARV. L.REV. 1482, 1488-89 (1975).]

[7 See Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 508. 89 S.Ct 733, 737, 21 L.Ed.Zd 731 (1969) (students wearing black armbands to publicize their objections to the Vietnam war were involved in the exercise of "direct, primary First Amendment rights akin to 'pure speech' "); cf. Garner v. Louisiana, 368 U.S. 157. 201, 82 S.Ct. 248, 271. 7 L.Ed.Zd 207 (1961) (Harlan, J.. concurring in the judgment) (lunch counter sit-in to protest segregation "is as much a part of the 'free trade in ideas,'... as is verbal expression").]

[8 See generally Henkin, supra note 5, at 7-82.]

[9 Stromberg v. California, 283 U.S. 359, 51 S.Ct. 532, 75 L.Ed. 1117(1931), holding unconstitutional a California prohibition on displaying a red flag as a means of political expression, was among the early cases acknowledging that "speech" may be nonverbal. Nine years later, the Court declared peaceful picketing to publicize a labor dispute constitutionally protected free speech. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940). The Court has not been consistent in its descriptions of protest marches as a form of "speech." Compare Edwards v. South Carolina, 372 U.S. 229, 235, 83 S.Ct. 680, 683, 9 L.Ed.2d 697 (1963) (march to State House reflected "an exercise of ... basic constitutional rights in their most pristine and classic form"), with Cox v. Louisiana, 379 U.S. 559, 563, 85 S.Ct. 476, 480, 13 L.Ed.2d 487 (1965) (picketing and parading described as "conduct mixed with speech"). See generally Kalven, supra note 5. ]

[10 Cf. Ely, supra note 6, at 1495. CCNV, in its permit request, acknowledged a non-communicative, "living accommodation" facet of the sleeping it proposed. Referring to CCNV's experience the preceding year, the request stated: "[A]bsent a survival- related reason for being in Lafayette Park--something such as a meal or the chance to sleep in relative warmth--they [the homeless] did not and would not come." Appellants' Complaint, Exhibit A at 3.]

[11 The Court said of the flag display at issue in Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974), intended to protest the invasion of Cambodia and the killings at Kent State University: "[I]t would have been difficult for the great majority of citizens to miss the drift of [Spence's] point at the time that he made it." Id. at 410, 94 S.Ct. at 2730. The sleeping demonstrators' message may be less quickly perceived. Passersby might observe: (1) they are certainly sleeping; (2) they may be doing so to facilitate their participation in the protest; (3) in addition to facilitating their expression, they may be sleeping as an expressive part of their protest. Sleeping, in other words, is not as securely or unambiguously seen, as is wearing an armband, displaying a flag, or marching, as a "common comprehensible form of expression." See Henkin, supra note 5, at 80.]


enables the round-the- clock demonstrator to face the next day without exhaustion. "Speech plus" is a label that has been misused in other contexts, [12] but CCNV's case may be an instance in which the description is appropriate.

Still, the personal, non-communicative 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": sleeping in the tents, rather than simply standing or sitting down in them, allows the demonstrator to sustain his or her protest without stopping short of the officially-granted round-the-clock permission. For me that linkage, while it does not mean CCNV's request should attract automatic approval, suffices to require a genuine effort to balance the demonstrators' interests against other concerns for which the government bears responsibility. I am mindful of the Park Service argument that it has gone beyond the "free speech" requirement in permitting as many round-the-clock demonstrators as CCNV requested and as many tents, and that judgment against it would penalize the Service for its generosity. Nonetheless, in shaping rules of access to a public forum for demonstrations of ideas and protests, [13] the Service, even when it has generously allocated time and space, must steer clear of arbitrary or incoherent regulation. Judge Mikva and Judge Edwards have suggested that controls tighter than those now in effect might be put in place by the Park Service without affront to the First Amendment. [14] They reason, however, and

[12 See Kalven, supra note 5, at 12, 23, 26-27 (labeling a public address or a pamphlet "speech pure" and a protest march "speech plus" lacks an "intelligible rationale"). Supreme Court opinions have described picketing and litigation, inter alia, as "speech plus." See Brandenburg v. Ohio, 395 U.S. 444, 455, 89 S.Ct. 1827, 1833, 23 L.Ed.2d 430 (1969) (Douglas, J., concurring) ("Picketing ... is 'free speech plus.' ... That means it can be regulated when it comes to the 'plus' or 'action' side of the protest."); Amalgamated Food Employees Union Local 590 v. Logan Valley Plaza, Inc., 391 U.S. 308, 326, 88 S.Ct. 1601, 1612, 20 L.Ed.2d 603 (1968) (Douglas, J., concurring) ("Picketing is free speech plus, the plus being physical activity that may implicate traffic and related matters.") (emphasis in original); Communist Party v. Subversive Activities Control Bd., 367 U.S. 1, 173, 81 S.Ct. 1357, 1450, 6 L.Ed.2d 625 (1961) (Douglas, J., dissenting) (picketing); NAACP v. Button, 371 U.S. 415, 455, 83 S.Ct. 328, 349, 9 L.Ed.2d 405 (1963) (Harlan, J., dissenting) ("[L]itigation, whether or not associated with the attempt to vindicate constitutional rights, is conduct; it is speech plus.") (emphasis in original). But cf. Kalven, supra, at 23 ("[A]ll speech is necessarily 'speech plus.' If it is oral, it is noise and may interrupt someone else; if it is written, it may be litter."). I use the term "speech plus" here not to describe expressive activity "with collateral consequences that invite[ ] regulation," Kalven, supra, at 23, but to refer to conduct designed both to speak and to accomplish a more readily or commonly comprehended non-communicative purpose.]

[13 See Kalven, supra note 5, at 12 ("[G]enerosity and empathy with which [the] facilities [of a public forum] are made available is an index of freedom.... [W]hat is required is in effect a set of Robert's Rules of Order for the new uses of the public forum, albeit the designing of such rules poses a problem of formidable practical difficulty.").]

[14 Judge Mikva observes that the Park Service may "limit the number of tents, the size of tents or campsites, and the number of persons allowed to sleep." It may "set aside certain times when no demonstrations are allowed," and, "possibly, it may be able to set aside some ... areas ... at which round-the-clock demonstrations are never compatible." Mikva Opinion at 599. Judge Edwards adds that "[g]overnment officials also may limit or prevent the storage of personal belongings, and perhaps prevent any individual from sleeping in the parks beyond a specified, successive number of hours or days." Edwards Opinion at 604. Judge Wilkey gives way to hyperbole when he suggests that these opinions exclude reasonable time, place, and manner regulation and would permit demonstrators to engage in any activity they believe "will facilitate or improve the [demonstration]." See Wilkey Opinion at 613.]


I agree, that it is not a rational rule of order to forbid sleeping while permitting tenting, lying down, and maintaining a twenty-four hour presence.

In sum, in reviewing regulation of the time, place, and manner of expressive activity, I believe courts should draw no bright line between verbal speech and other comprehensible symbols of expression, or between "traditional communicative activit[y]" [15] and non-traditional modes of expression. While a more rational line perhaps might be drawn distinguishing unambiguously communicative activity, traditional or not, from activity that reflects a mixture of motives, I would not draw that line in this case. The non- communicative component of the mix reflected in CCNV's request for permission to sleep at the authorized symbolic campsite facilitates expression and should therefore attract ordering rules that are sensible, coherent, and sensitive to the speech interest involved. In my view, the Park Service determination does not satisfy that measurement. I therefore concur in the court's judgment.

[15 Wilkey Opinion at 613.]

Dissenting Opinions

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