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.
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.
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)
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.
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:
The question for this Court is whether the government has adopted a regulatory scheme that fairly and substantially matches ends and means, not whether the Court can conjure up a set of detailed regulations that, in the Court's opinion, are a shade more liberal than the government's. It is the Secretary of the Interior, and not this Court, who has been entrusted with the responsibility to formulate regulations designed to safeguard the national parks, including the White House area, for their multifarious uses. That is particularly true where Presidential security is so fundamentally involved and the Secret Service, the acknowledged experts on that subject, has been closely consulted. Defendants' post-trial Brief at 67.)
As we have stressed in our prior rulings, this case is not a normal review of an executive action or administrative proceeding. When the executive or the administrative process abridges constitutional
rights, it is subject to closer scrutiny than otherwise, and ultimately it is the court rather than the agency that must balance the competing interests. The question in this case is not whether some support for ...the regulations may be adduced, by reference to evidence in the record and a claim of reasonable inferences and concerns, but is whether the regulations a' issue here are "unnecessarily restrictive for the purpose they are designed to serve." (515 F.2d at 723-24.]
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).
that a government regulation is sufficiently justified if it is within the constitutional power of the Government; if it furthers an important or 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. [Id, at 37.)
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