ERA v. CLARK
USDC Cr. No. 83-1243
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WHITE HOUSE VIGIL FOR THE ERA COMMITTEE, et al.,
Plaintiff,
NATIONAL ORGANIZATION FOR WOMEN
Plaintiff-Intervenor
V.
WILLIAM P. CLARK, Secretary,
Department of the Interior,
et al.,
Defendants.
MEMORANDUM OPINION
This case involves a challenge to regulations concerning
the size, location, composition and construction of signs used in
demonstrations and the placement of parcels and other personal
property on the White House sidewalk which were promulgated on
June 17, 1983, Plaintiffs--two organizations and several
individuals who regularly demonstrate on the sidewalk----claim
that the regulations violate their first amendment rights, and
seek a judgment which declares the regulations unconstitutional,
and, enjoins their enforcement by the defendants, the Secretary
of the Interior and his subordinates.
1
On April 22, 1983, the Park Service published new interim
regulations regarding demonstrations and the placement of
property on the White House sidewalk. 48 Fed. Reg. 17352.
Although promulgated without prior public notice or opportunity
for comment, these interim regulations were effective
immediately. On April 27, 1983, two of the plaintiffs in this
case were arrested for violating the interim regulations. Two
days later the instant suit was filed challenging the regulations
on both procedural and constitutional grounds.
On May 3, 1993, an evidentiary hearing was held on the
the plaintiffs first motion for a temporary restraining order
enjoining enforcement of the regulations. At the conclusion of
this hearing, the court granted the motion on the ground that
good cause had not been shown for waiving the notice and
comment requirements for informal rulemaking set forth in the
Administrative Procedure Act, 5 U.S.C. § 533. Subsequently, on
May 17, the interim regulations were republished by the National
Park Service as a proposed rulemaking with an additional comment
period extending to Hay 31. 48 Fed. Reg. 22234. A number of
comments were received, including some from the plaintiffs and
their counsel. After considering the public comments and
redrafting the regulations, the Park Service published the "final
rule" now before the court. la Fed. Reg. 25058 (June 17,
1883) These final regulations were to become effective 18 days
2
later on July 5.
On June 24, 1983, the plaintiffs filed an amended
complaint· They again alleged that the regulations were both
procedurally and constitutionally defective and again moved the
court for a temporary restraining order enjoining enforcement of
the regulations. A hearing was held on June 30, and on July 1
the court issued a Memorandum and Order granting the motion on
the ground that "good cause" had not been shown for shortening
the 30-day delay in effectiveness required by the Administrative
Procedure Act, 5 U.S.C. § 553(8). Following another hearing, this
temporary restraining order was extended until July 17, 1983 --
the date on which the 3O-day delay period would expire, On July
12, an evidentiary hearing was held on the merits of the
plaintiffs' first amendment challenge the regulations. On the
afternoon Before this hearing, the National Organization for
Women ("NOW") moved to intervene as a plaintiff in this action,
and was later allowed to do so.
In a July 19, 1983 order this court enjoined the enforcement
of a substantial part of the regulations because in its view they
were much more restrictive than necessary to adequately serve the
articulated governmental interests.
Defendants appealed the July 19, 1983 order, and on August
18, 1983 our U.S. Court of Appeals directed certain modifications
of that order; and also an expedited trial on the merits. This
court modified its July 19, 1984 order accordingly, and set trial
for September 20, 1983.
Shortly thereafter plaintiffs indicated that the September
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20, 1983 date allowed them too short a period of time within
which to prepare adequately for trial, and moved for a
continuance, at the expense of dissolving the injunction in the
interim. This motion was granted and trial was set for December
6, 1963. During trial the court was exposed to the testimony of
over twenty witnesses, and hundreds of exhibits; and has had the
benefit of extensive oral and written submissions from counsel
The challenged regulations amend 30 C.F.R. § 50.19(e)(5) as
follows:
a. No signs or placards shall be permitted on
the White House sidewalk except those made of
cardboard, posterboard or cloth [the "sign
materials regulation" having dimensions no greater
than three feet in width, twenty feet in length,
and one-quarter inches in thickness [the "sign
dimensions regulation"]. No supports shall be
permitted for signs or placards except those made
of wood having cross-sectional dimensions no
greater than three-quarter of an inch by three-
quarter of an inch [the "sign support
regulation"l, Stationary signs or placards shall
be no closer than three feet from the White House
sidewalk fence [the "three-foot regulation"]. All
signs and placards shall be attended at all times
that they remain on the White House sidewalk.
Signs or placards shall be considered to be
attended only when they are in physical contact
with a person [the "attended sign regulation"]. No
signs or placards shall be tied, fastened, or
otherwise attached to or leaned against the White
House fence, lamp posts or other structures on the
White Rouse sidewalk [the "leaned sign
regulation"]. No signs or placards shall be held,
placed or set down on the center portion of the
White House sidewalk, comprising ten yards on
either side of the center point on the sidewalk;
Provided, however, that individuals may demonstrate
while carrying signs on that portion of the
sidewalk if they continue to move along the
sidewalk [the "center zone regulations"].
The regulations amend § 50.19(e) by adding subsection (10)
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the parcels regulation.]: [1]
No parcel, container, package, bundle or other
property shall be placed or stored on the White
House sidewalk or on the west sidewalk of East
Executive Avenue, N.W., between Pennsylvania
Avenue, N.W., and E Street, N.W., or on the north
sidewalk of E Street, N.W., between East and West
Executive Avenues, N.W.; Provided, however, that
such property except structures may be momentarily
placed or set dawn in the immediate presence of the
owner on those sidewalks.
The preamble to the regulation that appears in the Federal
Register states that the "changes are necessary in order to
minimize potential threats to the structure and its occupants and
visitors, as well as to provide opportunities to the visitor to
view the White House, and to maintain the free flow of pedestrian
and emergency traffic." 48 Fed. Reg. 28056. In a lengthy
statement of "supplementary information" published along with the
regulations, the defendants drew attention to several disturbing
incident which had occurred within the previous half year. In
this statement they noted that in December 1982 an individual who
had been a frequent protester at the White House sidewalk
threatened to blow up the Washington Monument,thereby temporarily
paralyzing the entire city. 48 Fed. Reg. 28038, The statement
also noted that in April 1983 a terrorist bomb attack killed
scores of people at the American Embassy in Beirut, Lebanon, and
that another bomb exploded in front of the War College] at Fort
McNair in Washington. The statement further noted that in March
[1 The regulations also add 36 C.F.R. S 50.7(h):2), the text of
which is identical to that of 36 C.F.R. S 50.19(e(10).
]
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1983 a large structure used by a frequent demonstrator on the
White House sidewalk (who is not a party to this action) caught
fire, causing damage to the fence.
According to the statement these occurrences raised the
level of concern for the security of the President and the White
House, and the National Park Service and U.S. Secret Service
decided that
two areas of major concern should be addressed
immediately by regulatory chances--signs or
placards stationed on the White House sidewalk and
parcels, containers, packages, bundles and other
property placed or stored on the White House
sidewalk and other sidewalks surrounding the White
House.
It was stated that signs may block the view of tourists looking
at the White House, and at the same time obscure the view of
security personnel from inside the fence. Also noted was the fact
that signs have been used as weapons, and may be used to conceal
explosives or to scale the fence. In addition to the potential to
conceal explosives and to scale the fence, it was thought that
parcels, on the sidewalk could prevent the free flow of traffic.
The preamble further outlines the careful consideration
given to the various comments, and the painstaking efforts of the
defendants to strike a proper balance between their great concern
for Presidential and White House security and the visitor's
experience in viewing the White House on the one hand, 2nd "the
demonstrator's ability to convey a message" on the other hand.
The term "White House sidewalk" is defined at 36 C.F.R. §
50.19(a)(5) (1982) as "the south sidewalk of Pennsylvania Avenue,
between East and West Executive Avenues NW." The White House
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sidewalk ("the sidewalk") is directly across Pennsylvania Avenue,
which is 80 feet wider from Lafayette Park. It is about 770 feet
long and 33 feet wide--that is to say, much wider than a standard
city sidewalk--and is bordered by a 10 foot high fence which
consists Of iron bars set into a low concrete ledge. The distance
from the center point of the sidewalk fence he North Portico
of the White House is 230 feet, and one looking through the
center portion of the fence has an unimpeded view of the
structure. The sidewalk is generally open to the public, is often
crowded with tourists and with workers from nearby office
buildings, and historically has been the site where countless
demonstrations have occurred,
Prior to the effective date of the regulations at issue, the
White House Vigil for the ERA Committee, which was founded in 1980
conducted demonstrations in support of the Equal Rights Amendment
(ERA) almost every Wednesday afternoon from 11:30 a.m. until 1:30
p.m. for over two years., Plaintiff Mary Ann Beall, one of the
founders of this organization, is a frequent participant in these
activities. These demonstrations, which have been conducted under
a permit issued by the Park Police, varied in size from 3 to 30
people and involved the displaying of large cloth banners and the
distributing of literature. The Vigil Committee's customary
demonstration would violate the current regulations in that (a)
the banners are more than three feet wide and are supported by
hollow metal poles, about 1 1/4 inches in diameter - the allowable
wooden supports will not hold their banners, (5) the participants
store pamphlets and extra banners in a duffle bag which they set
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down on the sidewalk, and (c) the participants who hold the long
banners stand less than three feet from the sidewalk fence.
Plaintiff Edward Saffron, who is 66 years old, has been
demonstrating on the White House sidewalk for 14 years in support
of various causes. His latest activities have been in support of
worldwide nuclear disarmament. He usually demonstrates at least
three days a week from one to one-and-a-half hours each day. His
manner of demonstrating was to carry two signs sandwich-board
style, but because of his age and physical condition, he rested
from tine to time by sitting on the ledge of the fence. This
conduct would violate the amended regulations because when
plaintiff Saffron sits down, he leans his signs against the ledge
next to him. If he set his signs on the sidewalk they would have
to be three feet from the fence and he could not reach them. He
also placed a packet of literature down beside him on the
sidewalk.
Plaintiff Concepcion Picciotto has been conducting an around-
the-clock vigil on the White House sidewalk since August 1981.
Plaintiff Robert Dorrough has seen demonstrating for an average
of 14 hours a day since February 1983. Both of those plaintiffs'
activities have been in support of world-wide disarmament. Their
demonstrations would violate the regulations in that: (a) their
signs are made of plywood in order to withstand the weather and
they also exceed the size restrictions, (b) like plaintiff
Saffron, they sometimes sit on the ledge with their signs, (c)
they place bags containing pamphlets, food, water, or extra
clothes next to them on the sidewalk, and they sometimes fail
8
to remain in physical contact with their signs.
The National Organization for women (NOW)--the plaintiff-
intervenor--has about 250,000 members nationwide and is dedicated
to improving the status of women in ell aspects of American
life. Since 1972, NOW has conducted periodic demonstrations on
the White House sidewalk in support of the ERA, and plan to
continue these activities. NOW's demonstrations are larger than
those of the Vigil Committee and attract demonstrators from as far
away as New Jersey, Pennsylvania, and West Virginia. These
demonstrators typically come to the White House sidewalk for the
entire day and often include elderly persons and mothers with
small children. NOW's demonstrations are conducted under a Park
Police permit and are patrolled by "facilitators' trained by
NOW. The demonstrations take place at the center point of the
sidewalk. Two large cloth banners are displayed by demonstrators
standing next to the fence facing Pennsylvania Avenue. In front
of them, other demonstrators carry individual banners, hand out
leaflets, or ask interested passers-by to sign petitions. NOW's
demonstrations would violate the challenged regulations in that:
(a) Both the long banners and the individual banners violate the
restrictions on sign dimensions, (b) the banners contain metal
and are supported by small hollow metal poles, (c) NOW's
demonstrators place strollers, diaper jugs, water containers,
food sacks, coats, leaflets, and other property on the sidewalk,
(d)elderly and infirm demonstrators and demonstrators with small
children often rest on the ledge, and (e) the banners are held
stationary within three feet of the fence and within the central
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portion of the sidewalk.
Plaintiffs urge that these new restrictions on the size,
composition, location and construction of signs, and the
placement of packages and personal items on the sidewalk are
unrelated to any bona fide security concerns, and are thus
unnecessary and unjustifiable encroachments on their otherwise
lawful first amendment activities. In addition, plaintiffs
suggest that the regulations in their current form were more than
likely inspired by an effort to accommodate the wishes of then
Interior Secretary Watt, who had no thoughts about security. The
defendants contend that the regulations really do not constitute
any encroachment on first amendment rights inasmuch as they are
content-neutral, and merely prescribe the place and manner or
form which the activity must take; and in fact are reasonable in
light of the stated objectives of the agency. They flatly deny
any input from Secretary Watt, or any influence from the White
House.
Final Order Continued
Case Listing --- Proposition One ---- Peace Park