USDC Cr. No. 83-1243 - Continued


In support of their claim that the regulations are not the product of any genuine security concerns, plaintiffs point to the following facts:

1. The preamble to the regulations begins by stating that "[r]ecent events in the Memorial Core Parks, as well as terrorist activities elsewhere, have highlighted security concerns for the White House and the President." It cites the incident in which Norman Mayer threatened to blow up the Washington Monument, the


bombing Of the American Embassy in Beirut, Lebanon, and a bombing at Fort McNair. The government witnesses also contended that these incidents prompted the development of the challenged regulations. Robbins, Tr. at 7; Parr, Tr. at 91. But they agree that there is no connection between these incidents and these regulations, other than generally to increase concern for the Safety of the President.

2. The photographs contained in the administrative record depict the activities of certain long-term demonstrators on the White House sidewalk, chiefly plaintiffs Concepcion Picciotto and Robert Dorrough; and when the government witnesses testified about the conditions on the sidewalk that prompted these regulations, they referred specifically to these same long-tern demonstrators.

3. Many of the exhibits offered by the government appear to be unrelated to these regulations. For example the government. introduced into evidence numerous Park Police reports concerning demonstrators "camping" on the White House sidewalk, which is not a subject addressed in the regulations. In addition, the "camping" problem was cited as prompting discussions on these regulations. In fact, other, regulations, not in issue, address the camping problem

4. Vehicles of various types regularly stood at the south curb of Pennsylvania Avenue in front of tie White House for substantial periods of time--with no driver or passengers in sight--a most obvious hazard in terms of explosives.

5. Hollow tubing in bicycles, baby carriages, canes, and dollies(carts) which are frequently on the sidewalk could contain



6. No restrictions on size or composition of signs or dimensions of sign supports, or the Presence of Parcels or any other property apply to the north side of Pennsylvania Avenue (Lafayette Park)--a mere 80 feet more away from the fence--and front door of the White House.

7. More than a little evidence indicates that the regulations have not been enforced from time to time under the very noses of policemen charged with the duty of enforcement. For example, on September 7, 1993 an organization known as the Collegiate Association for Research Principles (CARP) demonstrated on the sidewalk to protest the Soviet Union's downing of the ill- fated Korean airlines Flight 007. The demonstration lasted for 45 minutes, during which time the participants violated: the center zone regulation the prohibition against unattended signs, prohibition against signs leaned against the fence and signs within 3 feet of the fence the sign size limitations, and the parcels regulations. All these occurred under the gaze of Park Police officers, including supervisory personnel, who did nothing to enforce any provision of the regulations in issue, The testimony offered by way of explaining the police conduct is absolutely unworthy of belief, and the government's effort to ascribe it to some confusion and lack of communication about this Court's September 2, 1983 order which dissolved the injunction then in effect is not supported by the record of proceedings in this case. Most of the regulations which were violated by CARP had been in full force and effect since this court's order of


August 23, 1983 1483, issued pursuant to our Court of Appeals direction to modify this court's July 19, 1983 order. And prior to September 7, 1983 some of the provisions had actually been enforced by Park policemen. In addition to the disparity in enforcement policy among demonstrators there is substantial evidence indicating that demonstrators and non-demonstrators are treated differently under the parcel regulation.

8. Perhaps the most important indication that the "security concern" had little if anything to do with these regulations is reflected in the pattern of surveillance accorded the sidewalk by the Park Police. Lindsey, Tr. at 126-132 (Dec. 14, 1983). It has been constantly emphasized that without the regulations on signs and parcels effective observation of what was going on an the sidewalk was hampered, and also it was not easy to keep up With the presence Or absence of abandoned parcels. Allegedly, the regulations were specifically directed to these problems.

However, except on the occasion of special planned events, for nearly two years prior to August 23, 1983 the Park Police surveillance of the sidewalk was entrusted to one officer on a scooter who patrolled a beat consisting of Lafayette Park, the Ellipse, and the White House sidewalk. This type of almost casual surveillance over an area which allegedly was the focal point of high level anxiety about the security of the President and the White House is incredible. And this court indicated as much in some the earlier proceedings. Lindsey, Tr. at 75-78 (May 3, 1983). Thereafter, on August 23, 1983, the Park Police assigned a foot patrolman for the purpose of surveilling the White House


sidewalk and Lafayette Park. The explanation as to why no close surveillance was instituted up to that date is that the court's modified injunction issued on August 23, 1983 indicated that the police "now had some specific tools [regulations] to meet our obligations there that were going to be in effect"; and that there was 'no need to assign an officer until that time that we had some clarification from the courts to indicate that we would have some tools that would be in force for a period of time." Lindsey, Tr. at 127-132 (Dec. 14, 1983)

It seems clear that anyone genuinely concerned about the security of the White House and the President and apprehensive about the potential of the conditions on the sidewalk would keep close watch on the-sidewalk. The nonexistence of regulations which are satisfactory to the Park Police is hardly a justification for virtually ignoring what may occur on the sidewalk. It would appear that the situation would call for more manpower rather than almost none.

In light of these facts, plaintiffs claim that a memo from Secretary Watt, and subsequent contacts between Assistant Solicitor Robbins, a principal drafter of the regulations, and Secretary and the White House take on added significance. On January 13, 1983, a memo from Secretary of Interior James G. Watt requested a 'briefing on the regulations that allow demonstrations and protesters in Lafayette Park and in front of the White House on Pennsylvania Avenue. My intention is to prohibit such activities and require that they take place on the Ellipse. Plaintiff's exhibit 140. When Assistant Solicitor Robbins spoke


to Secretary Watt about the development of the regulations in March 1983, the Secretary told Mr. Robbins to "keep up the good work." Robbins, Tr. at 112. "There was also contact with the White House to inform White House counsel of the status of the regulations. Additionally, plaintiffs urge that the key fact that both versions of the regulations just happened to proscribe all of the plaintiffs' then current activities on the sidewalk cannot be regarded as mere coincidence.

In the circumstances it would appear that plaintiffs' claim in this regard in no wise can be characterized as frivolous however in light of this court's disposition of this case, it need not resolve this particular issue.

So far as the court is aware, prior to the promulgation of the regulations, there had been no terrorist activity on the White House sidewalk, despite the fact that large and impassioned demonstrations have been conducted there over the years. Obviously, however, there is no guarantee that terrorist activity will not be contemplated in the future--either from the White House sidewalk or other locations in the vicinity. No one who has lived through the past two decades can doubt the importance of protecting our presidents from those who would do them harm, and no reasonable person can dispute that some restrictions on freedom of expression may be tolerated in pursuit of this pressing public interest. The Supreme Court has stated: "The Nation undoubtedly has a valid, even an overwhelming, interest. in protecting the safety of its Chief Executive," Watts v. United States, 394 U.S. 705, 707 (1969); and our Court of Appeals has referred to the


safety of the President as "a paramount interest", A Quaker Action Group v. Nickel, 421 F.2d 1111, 1117 (D.C. Cir. 1969). Consistent with this realization, we have come to rely upon the alertness and innovativeness of those entrusted with the responsibility of protecting the President, and ordinarily their assessments are given deference. But this deference is not quite as complete as the government suggests in urging that:


This contention clings rather tenaciously to a concept which our Court of Appeals has rejected more than one occasion. A Quaker Action Group v. Morton ("A Quaker Action IV"), 546 F.2d 717, 723- 24 (D.C. Cir. 1975); Women Strike for Peace v. Morton, 472 F.2d 1273, 1299 (D.C. Cir. 1972); A Quaker Action Group v. Morton, 460 F.2d 854, 859-60 (D.C. Cir 1971); A Quaker Action Group v. Hickel, 421 F.2d at 1113. In Quaker Action IV, Judge Leventhal put this rejection In unmistakable terms:




It is clear that when the question arises "as to whether the officials involved have transformed this concern into an excessive preoccupation with security that is achieved at the unnecessary expense of first amendment freedoms," A Quaker Action Group v. Morton, 460 F.2d 854, 860 (1971), the final judgment on this issue rests with the courts.

For resolution of this often delicate question of when and under what circumstances the state may restrain first amendment activities, the Supreme Court and the Circuit Courts over the years have hammered out a line of cases which reiterate in varying terms one single concept: "the First Amendment right of access to public places for expression of views --- subject, of course, to reasonable regulations narrowly drawn to protect other competing interests." Women Strike for Peace v. Morton, 472 F.2d at 1275 (citing authorities).

As the defendants point out, the regulations at issue in this case, do not attempt to ban demonstrators from the White House sidewalk or to regulate the content of their messages. The regulations simply regulate the manner in which demonstrations may be conducted. Additionally the defendants emphasize that the first amendment does not give demonstrators the right to choose


the most effective method of communicating their message. See Vietnam Veterans Against the War v. Morton, 506 F.2d 53, 58 n.14 (D.t. Cir. 1974).

At the same time, the government may not restrict the manner of demonstrations unless it fulfills the strict requirements set forth in United States v. O'Brien, 391 U.S. 367 (1968). In that case the Supreme Court held:


Under this test the government must satisfy each of its regulations in the context of substantial governmental interests. Merely asserting this interest does not suffice, In this case the government must show at least a probable danger to the security of the President and the White House created by the plaintiffs' activities. That is to say, it must establish a nexus between the activity it would proscribe and a threat to presidential security. As the plaintiffs point out, if the nexus is not shown, that ends the matter -- the regulation is invalid. If the nexus is established then the regulation is examined to determine whether it is unnecessarily restrictive for the purpose it is designed to serve. This requires close scrutiny by the court, See Women Strike for Peace v. Morton, 472 F.2d at 1256 G, Taking a different view of the authorities, the government


contends that "O'Brien does not contemplate ad hoc regulatory supervision by the courts over the details of an administrative scheme, and that in fact, the Supreme Court has warned that '[t]he logic of ... elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all [regulatory] powers' (United State v. Martinez-Fuerte, 428 U.S. 543, 557, n.12 (1976)." (Defendant's post-trial brief at 66.) it appears that reliance on Martinez-Fuerte is misplaced. It is a search and seizure case; and the actual words used by Justice Powell where the government brackets its own term are "search and seizure'. The fourth amendment's protection against unreasonable searches and seizures obviously makes room for a much more flexible standard of judicial review than is required of regulations which abridge the right of the people peaceably to assembler and to petition the Government for a redress of grievances in the face of the first amendment's flat prohibition against the making of such a law. The role of the court in applying the O'Brien standards cannot be characterized as "free- floating judicial review." (Defendant's post-trial brief at 66.) It is a constitutional necessity.

Final Order Continued

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