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.]
607
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.]
608
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