Watt v. CCNV

WILKEY, with whom joined TAMM, MacKINNON,-BORK, and SCALIA, Circuit Judges dissenting:

This case raises a number of questions concerning the protection to be afforded symbolic speech and the extent to which, by neutrally drafted and applied regulations, the government may limit First Amendment access to a traditional public forum. In particular we must decide whether a general ban on camping in the Memorial core area parks of the District of Columbia can be applied to prevent camping that constitutes an integral and expressive part of a demonstration otherwise protected by the First Amendment.

I. BACKGROUND

The Community for Creative Non-Violence (CCNV), an unincorporated religious association working on behalf of homeless persons, applied to the National Park Service for a permit to hold a demonstration in Lafayette Park and on the Mali beginning 21 December 1982. CCNV proposed to erect sixty tents in which an estimated 150 demonstrators would sleep in order to draw attention to the plight of the homeless during winter. The Park Service granted CCNV a permit to erect two symbolic tent cities, one on the Mall with forty tents, and one in Lafayette Park with twenty tents. Permission to sleep in the tents, however, was denied pursuant to Park Service regulations governing camping and the erection of temporary structures for living accommodation. [1]

CCNV and several homeless men then sued in district court for an injunction to prevent the Park Service from enforcing its regulations against them. They alleged four grounds in support of their suit: first, that the regulations are void for vagueness and overbreadth; second, that the regulations do not in fact prohibit their proposed demonstration; third, that the regulations have been discriminatorily enforced in violation of their First and Fifth Amendment rights; and, finally, that the regulations cannot be construed to prevent the demonstration without running afoul of the free speech guarantees of the First Amendment.

Following a hearing, the district court denied plaintiffs' motion for a preliminary injunction and for summary judgment, and instead granted summary judgment for the Park Service. [2] CCNV immediately filed a notice of appeal and motion for an injunction pending appeal, which was denied by the district court. An emergency motion

[1 See 47 Fed.Reg. 24,299-306 (1982) (to be codified at 36 C.F.R. зз 50.19, 50.27). Set out at pp. 617-618, infra.]

[2 The district court delivered its judgment orally on 3 December 1982. Written Findings of Fact and Conclusions of Law followed on 9 December.]

609

for injunction pending appeal was also denied by a panel of this court.[3] The appeal, however, was set for expedited en banc consideration to allow for a determination on the merits.

II. PRELIMINARY QUESTIONS

Three of appellants' four contentions can be disposed of without difficulty. Indeed, a mere citation of the regulations at issue suffices to show that they prohibit the sleeping proposed by CCNV and that they are neither vague nor overbroad under applicable Supreme Court precedent. Furthermore, the district court explicitly found that the regulations have not been discriminatorily enforced. This finding is supported by undisputed evidence and therefore must be upheld.

The camping regulations of the National Capital Region were revised in June of 1982 after formal rulemaking proceedings.[4] The revisions responded to a recent decision of this court holding that a prior, almost identical demonstration proposed by CCNV was not prohibited by the regulations as then written. [5] The panel opinion relied upon a Policy Statement accompanying the regulations which drew a distinction between the permissible "use of symbolic campsites reasonably related to First Amendment activities" and impermissible "camping primarily for living accommodations ..."Noting 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 people," the panel concluded that the regulations allowed appellants to sleep in the tents as an intrinsic part of their protest. [6]

No such statutory solution is available to us. As noted, the regulations were revised after the panel decision. [7] These revisions clarify the definition of the term "camping" as used in 36 C.F.R. з 50.27, which prohibits camping in park areas not designated as: public campgrounds. The revisions also clarify section 50.19, which covers the use of temporary structures in connection with permitted demonstrations and special events.

As revised, 36 C.F.R. з 50.27(a) prohibits camping in park areas not designated as public camping grounds, and defines the terms as follows:

Camping is defined as the use of park land for living accommodation purposes such as sleeping activities, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or using any tents or shelter or other structure or vehicle for sleeping or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging.

Section 50.19((e)(8)), as amended, permits the erection of temporary structures for the purpose of symbolizing a message or meeting logistical needs in conjunction with an authorized demonstration, but prohibits the use of temporary structures for camping outside of designated areas for living accommodation activities such as sleeping, or making preparations to sleep (including the laying down of bedding for the purpose of sleeping), or storing personal belongings, or making any fire, or doing any digging or earth breaking or carrying on cooking activities. The above-listed activities constitute camping when it reasonably appears, in light of all

[3 Community for Creative Non-Violence v. Watt, Nos. 82-2445 and 82-2477 (D.C.Cir. 20 Dec.1982).]

[4 See 47 Fed.Reg. 24999-306 (1982).]

[5 Community for Creative Non-Violence v. Watt, 670 F.2d 1213 (1982).]

[6 Id. at 1217.]

[7 47 Fed.Reg. at 24,299-306.]

610

the circumstances, that the participants, in conducting these activities, are in fact using the area as a living accommodation regardless of the intent of the participants or the nature of any other activities in which they may also be engaging. There is no single activity that automatically triggers the application of these sections. Thus, someone might take a noontime nap in the park without violating them. Similarly, in conjunction with a demonstration one may erect a symbolic tent in which no one will actually be sleeping or may use "support service tents" for first aid facilities, lost children areas, or to shelter electrical and other sensitive equipment or displays. [8] Only when all the circumstances are taken into account can it be determined with certainty whether a particular person or group is "camping" within the meaning of the regulations.

The determination required is not a difficult one. We all have a common-sense understanding of what camping is, and the regulations aid that understanding by giving specific examples of activities that constitute camping "when it reasonably appears, in light of all the circumstances, that the participants, in eonducting these activities, are in fact using the area as a living accommodation. . . . " [9]

Appellants propose to erect tents and to occupy those tents, by sleeping in them at night, for the remainder of winter. [10] Given that "camping" is defined "regardless of the intent of the participants or the nature of any other activities in which they may also be engaging," what appellants propose is clearly camping. Appellants' First Amendment intent does not take them outside the scope of the regulations.

Furthermore, the regulations give fair notice of the prohibited conduct and provide sufficiently explicit standards to guide the discretion of law enforcement officials. [11] They are not impermissibly vague. [12] Neither are they overbroad. Appellants argue that their proposed camping constitutes symbolic speech meriting First Amendment protection. They further argue that the Park Service regulations impermissibly infringe upon that speech. These questions will be considered in due course. [13] But it is not necessary to decide them in order to reject appellants' overbreadth challenge.

When, as here, an enactment is directed at conduct rather than at speech, "overbreadth scrutiny has generally been somewhat less rigid" so long as the statute regulates the conduct in a "neutral, noncensorial manner. [14] "[T]he overbreadth of [such] a statute must not only be real, but substantial as well, judged in relation to the statute's plainly legitimate sweep. [15] Even assuming there is such a thing as "expressive camping" that merits First Amendment protection from incidental infringement, that expressive camping constitutes only a small fraction of the general camping prohibited by the regulations. It cannot be said that a general ban on camping is substantially overbroad simply because it encompasses occasional instances of expressive camping.

Finally, we agree with the finding of the district court that the Park Service has enforced its new regulations "in an even-

[8 Id. at 24,305.]

[9 Id at 24,302.]

[10 See Reply to Appellees' Opposition to Appellants' Emergency Motion for Injunction Pending Appeal and Opposition to Appellants' Motion for Summary Affirmance (Appellants' Reply Brief) at 3, 8-9.]

[11 Village of Hoffman Estates v. Flipside, Hoffman Estates Inc.. 455 U.S. 489, 102 S.Ct. 1186. 71 L.Ed.2d 362 (1982); Grayned v. City of Rockford, 408 U.S. 104. 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1971).]

[12 This court has already concluded that a regulation prohibiting camping, defined in terms very similar to the current regulations, was not unconstitutionally vague. See Vietnam Veterans Against the War v. Morton, 506 F.2d 53, 59 (D.C.Cir.1974).]

[13 See Part III, infra.]

[14 Broadrick v. Oklahoma, 413 U.S. 601, 613 15, 93 S.Ct. 2908, 291~2917. 37 L.Ed.2d 830 (1973).]

[15 Id. at 615. 93 S.Ct. at 2917.]

611

handed and reasonable manner. [16] This finding is based on and amply supported by undisputed facts contained in a number of exhibits and affidavits filed with the district court by the Park Service.

Appellants support their contention that the regulations are being enforced against them selectively and discriminatorily by referring to several past demonstrations in which sleeping allegedly occurred. [17] In judging the propriety of the grant of summary judgment for the Park Service, we must assume the truth of these factual allegations. [18] Even so, they fail to make out a claim of discriminatory enforcement in violation of the First and Fifth Amendments.

Some of the demonstrations relied upon by appellants [19] occurred before the effective date of the current revisions and are therefore largely beside the point. As for the three demonstrations taking place after that date, it is undisputed that in each instance the Park Service notified the participants that camping and the use of temporary structures for living accommodations was prohibited. [20] Furthermore, in the one case where the Park Service detected a violation of the regulations, it demanded. compliance and the next day, after similar violations occurred, revoked the demonstration permit for noncompliance with the regulations and conditions of the permit. [21] A standard of reasonable, even-handed enforcement calls for no more.

At best appellants are able to cite two isolated instances of undiscovered violations of the regulations. [22] The district court rightly noted that this evidence failed to create a genuine issue of material fact. The existence of possible undiscovered violations of the law is not the material issue here. Rather, the issue is whether or not there existed a policy or practice by the Park Service of permitting activities by other persons in violation of the regulations. Since plaintiffs' evidence goes only to the former proposition, not to the latter, it fails to establish a policy of discriminatory enforcement.[23]

III. FIRST AMENDMENT CLAIM

We come, then, to the main focus of contention in this case. Appellants argue that the Park Service regulations, if construed to prohibit their proposed demonstration, impermissibly infringe upon rights guaranteed by the free speech clause of the First Amendment.

A. Standard of Review

As a preliminary matter, we must determine whether the camping proposed by appellants is properly considered "speech" for purposes of the First Amendment protection

[16 Findings of Fact and Conclusions of Law at 1-7.]

[17 See Appellants' Reply Brief at 44-51.]

[18 See, e.g.. Bishop v. Wood, 426 U.S. 341, 347, 96 S.Ct. 2074. 2078, 48 L.Ed.2d 684 (1916): Abraham v. Graphic Arts Intern. Union, 660 F.2d 811, 81P15 (D.C.Cir.l981). ]

[19 For example, appellants cite the 1968 "Resurrection City" demonstration and the 1979 "Farmers March." A Vietnam Veterans Against the WAR (VVAW) demonstration in early May relied on by appellants also took place prior to the effective date of the amended regulations. However, the Park Service applied the new regulations to that demonstration, yet still authorized at least some participants in the demonstration to "be asleep in the area at all times during the night." Letter from Park Service to VVAW dated 22 April 1982. reprinted in Record Document(RD) 5. In that case, however, the sleeping was incidental to an all-night vigil at a mock Vietnam War-era "firebase" at which the demonstrators took turns standing symbolic "guard duty." Since no tents or other structures were used by the VVAW, the Park Service determined that the demonstration did not constitute "camping" within the meaning of the new regulations.]

[20 See Letter from Park Service to Assoc. of Community Organizations for Reform Now dated 18 June 1982; Letter from Park Service to Palestine Congress of North America dated 8 September 1982; Letter from Park Service to Arab Women's Council dated 28 July 1982, all reprinted in RD 5.]

[21 Findings of Fact and Conclusions of Law at 8 ]

[22 See Appellants' Reply Brief at 54.]

[23 Findings of Fact and Conclusions of Law at 2-21.]

612

claimed here. Thus, in United States v. O'Brien, [24] the case principally relied upon by Judge Mikva to establish his standard of First Amendment scrutiny, the Supreme Court began its analysis as follows:

We cannot accept the view that an apparently limitless variety of conduct can be labeled "speech" whenever the person engaging in the conduct intends thereby to express an idea. However, even on the assumption that the alleged communicative element in O'Brien's conduct is sufficient to bring into play the First Amendment, it does not necessarily follow that the destruction of a registration certificate is constitutionally protected activity.

Since the Court in O'Brien found that the governmental prohibition satisfied even the heightened scrutiny appropriate for laws that incidentally infringe on protected expression, it was not constrained to go back and reexamine the validity Of its assumption that First Amendment standards of scrutiny applied. Judge Mikva, however-at least if he intends to rely upon O'Brien --must do so. He must validate the credentials that admit sleep, in this case, to the realm of the First Amendment without providing a blanket pass to "an apparently limitless variety of conduct [that] can be labeled 'speech'. [25] No easy task, and not one which Judge Mikva has in our view successfully executed.

The attempt is made in an earlier portion of the opinion, [26] where two responses are given. First, the "indicia of political expression ... permeate CCNV's pointed use of the simple act of sleeping. [27] To determine communicativeness, Judge Mikva examines "the intent of the would-be communicator and the context in which his or her conduct takes place. [28] One might suppose from this, and from the quotation from Supreme Court authority which follows, that Judge Mikva means that here sleeping is a particularly apt method of expressing homelessness, the idea to be conveyed. Several pages later, however, the opinion abjures such an intent, warning (quite correctly, in our estimation) that basing the present decision upon CCNV's contention that "sleeping in its demonstration is uniquely desenring of first amendment protection because it directly embodies the group's message ... 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 .... [29] We add that it would also require the Park Service, and ultimately the courts, to make judgments that are more appropriate for Ingmar Bergman and Andy Warhol.

But if this symbolism-evaluation is not what Judge Mikva has in mind, then we are at a loss to understand the point. Does it mean that, since the particular activity of sleeping is expressive in this case (the one-and-only time we will engage in symbolism -evaluation for this particular category of conduct) it must always be assumed to be expressive in the future--so that hereafter one can sleep in the parks to protest war or to protest peace, to protest the arms race or to protest unilateral disarmament, all indiscriminately under the protection of the First Amendment? [30]

Judge Mikva's second basis for avoiding the preliminary inquiry of O'Brien is that the sleeping is part of a demonstration that is itself sufficiently communicative to implicate the First Amendment. In other words, "even were we not to focus on the peculiarly expressive nature of sleeping, first amendment scrutiny would still be implicat-

[24 United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968).]

[25 Id.]

[26 Mikva Op. at 591-594.]

[27 Id. at 593. ]

[28 Id.at 592.]

[29 Id. at 594.]

[30 See id. at n. 16 ("demonstrators should be held to no higher standard than the advancement of a plausible contention that their conduct is intended to, and in the context of their demonstration likely will, express a message").]

613

ed. [31] The idea seems to be that the First Amendment gives CCNV the freedom to shape the nature of its own demonstration and, therefore, a higher standard must be applied to justify the suppression of all requested elements of that demonstration- including those that are not even intended to be independently communicative. [32] We cannot accept this reasoning, which suggests that since, for example, a protest march (a traditional form of expressive conduct) cannot be banned without meeting the high First Amendment standards applicable to incidental infringements on speech, neither can any of the other activities which the organizing group believes will facilitate or improve the march.

We think that is plainly wrong. Not a whit more justification is needed to ban spitting in the street by a parade of tobacco farmers protesting a new tax on chewing tobacco than is needed to prevent such activity by the public at large. Any group's freedom to shape the nature of its own demonstration is limited by the well established permissibility of "time, place and manner" limitations--the reasonableness of which is established 90 long as the First Amendment activity itself (the speech, the pamphleteering, the parade) is not needlessly impeded, regardless of the effect on ancillary phenomena. It is hard to believe that the limiting language in O'Brien, quoted above, means no more than that inherently unexpressive conduct need only be joined with expressive conduct or speech in order to quality for First Amendment protection.

The Supreme Court cases, it must be acknowledged, do not provide guidance as to what conduct beyond traditional communicative activities such as marching and picketing may qualify as "speech." It might be suggested that only such traditional activities qualify for purposes of avoiding a general prohibition not directed at communicative content--while virtually all conduct is "speech" for purposes of avoiding a proscription specifically designed to suppress expressive connotation. [33] While this analysis may be consistent with the holdings of the Court, it is difficult to square with the fact that the O'Brien test itself (applied only after conduct has been assumed entitled to full "free speech" protection), contains a step that inquires into the communication-suppressing nature of the law. Unlike Judge Mikva, we find it unnecessary to solve this dilemma in the present case. Like the Supreme Court in O'Brien, we find that even assuming the applicability of the more demanding First Amendment standard of review, the regulations here pass muster. [34]

The standard of review provided by O'Brien is as follows: [A] government regulation is sufficiently justified if it is within the constitutional power of the government; if it furthers a 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. [35]

[31 Id.at594.]

[32 Id. ("whatever the particular form of the protestors' presence at night, their presence itself implicates the first amendment").]

[33 See, e.g., Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727. 41 L.Ed.2d 842 (1974) (per curiam); Tinker v. Des Moines School Disttict, 393 U.S. 503, 89 S.Ct. 733. 21 LEd.ad 731 (1969).]

[34 It may well always be true that conduct which should not in the first place have been accorded full First Amendment "speech" protection will, even assuming such protection, readily be proscribable under the O'Brien test. Applying this test on a case-by-case basis does, however, impose a considerable burden upon administrators and the courts, and may produce erroneous judgment which (so long as they are not adverse to demonstrators) are not appealable to the courts. We do not. therefore, deprecate the value of the more direct approach which both the O'Brien court and we have avoided; but in the absence of further clarification from the Supreme Court we take the safer course for the present.]

[35 391 U.S. at 379. 88 S.Ct. at 1679.]

614

The first requirement, that the regulation be within the constitutional power of the government, is rarely a problem. The second and fourth requirements come together to constitute a balancing test, as discussed below. [36] Before one even reaches that balancing test, however, the interest offered by the government to support its regulation must meet the threshold requirement that it be "unrelated to the suppression of free expression." In other words, any burden imposed on free expression must be incidental to the prevention of a harm that arises regardless whether any message is conveyed. To illustrate, an attempt to curtail littering by banning handbills is not directed at any message to be conveyed. The feared harm would arise even if the handbills were blank. [37] Similarly, a ban on sound trucks is designed to prevent noisy disturbances, a harm that would arise even if the sound truck merely emitted static or other meaningless sounds. [38] An attempt to curtail the incitement of lawless action, on the other hand, is directed at a harm arising from the specific viewpoint expressed. [39] Similarly, a ban on foul language is concerned with the effects of the ideas or emotions expressed on the minds or conduct of those listening. [40] In these latter cases, the regulation will not survive judicial scrutiny unless the proscribed expression falls into one of several narrowly defined, unprotected categories. [41] In the former set of cases, where the threshold test is met, then under O'Brien a balancing test is proper: the state must counterbalance any incidental infringement on free speech by showing that the regulation narrowly pursues a substantial governmental interest. This is properly characterized as a "balancing" test, because the greater protection that could be afforded speech by a less restrictive alternative must be balanced against that alternative's loss of efficiency in achieving the government's objective. [42] In this case, the governmental interest alleged, the protection of the parks in the Memorial core area from physical and aesthetic damage caused by camping, is clearly unrelated to the suppression of free expression. The harm is the same whether appellants hope to express a message by camping or not. Thus, the court must balance the substantiality of the government's interest in preventing camping against the incidental infringement on free speech, taking due note of the possibility of any less restrictive alternative.

B. Application of Standard

The three concepts upon which this case turns, "substantial interest," "incidental infringement," and "less restrictive alternative," are inherently vague. However, enough can be said about each, as applied to this case, to leave no doubt as to the proper result.

1. Substantial Interest

Our first responsibility is to determine the exact nature and scope of the governmental interest called into question by this case. It is easy to make a mistake here,

[36 See p.614, infra. ]

[37 See Schneider v. New Jersey, 308 U.S.147, 60 S.Ct. 146. 84 L.Ed. 155 (1939); Ely, Flag Desecration: A Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV.L.REV, 1482, 1486-87 (1975).]

[38 See Kovacs v. Cooper, 336 U.S. 77. 69 S.Ct 448, 93 L.Ed. 513 (1949).]

[39 See Brandenburg v. Ohio, 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam).]

[40 See Cohen v. California. 403 U.S. 15, 21-22, 91 S.Ct. 1780. 178~1787, 29 L.Ed.2d 284( 1971).]

[41 See, e.g.. Paris Adult Theater I v. Slaton, 413 U.S. 49. 93 S.Ct. 2628, 37 L.Ed.2d 446 (1973) (obscenity); Brandenburg v. Ohio. 395 U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969) (per curiam) (advocacy of imminent lawless action); Chaplinsky v. New Hampshire, 315 U.S. 5613. 62 S.Ct. 766, 86 L.Ed. 1031 (1942) (fighting words).]

[42 See Ely, supra note 37, at 1482-90; Farber, Content Regulation and the First Amendment: A Revisionist View, 68 Geo.L.J. 727, 74 n. 83 (1980).]

Next Section

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