USDC Cr. No. 83-1243 - Continued

The relationship of peaceful demonstrations to the democratic process is generally well-known. They are perhaps the most readily available and dramatic forms of expressing views and "to petition the Government for a redress of grievances" --the specific right guaranteed by the first amendment. With the advances in media techniques, especially television coverage, demonstrations have become an effective devise for persons to make their


positions known to the government and others throughout the country. As a matter of fact, for those of modest means, or with little or no assets, a demonstration is often the only affordable tool for effective protest. The two-fold purpose of a demonstration is "to try to impress a target" and at the same time "publicize the cause to others." Concerned Jewish Youth v. McGuire, 621 F.2d 471, 482 (2d Cir. 1980) (Mansfield, J., dissenting).

The uniqueness and importance of the Nation's Capital [2] --and specifically the White House sidewalk--for the exercise of first amendment rights is apparent when we consider that in most cases-- perhaps all--there is a direct relationship between the demonstration's message and the presidential administration. Frequently the message of those who have journeyed to the seat of power is severely critical of the administration's policy, and the demonstration figuratively--indeed almost literally--takes on aspects of a highly publicized confrontation in which the administration has a definite stake. Historically this has been "the nature of the place." [3]

It should be noted that the conduct proscribed by these

[2 "The general concepts of First Amendment freedoms are given added impetus as to speech and peaceful demonstration in Washington, D.C. by the clause of the Constitution which assures citizens of their right to assemble peaceably at the seat of government and present grievances. A Quaker Action Group v. Morton, 460 F.2d at 858.]

[3 The Court has recognized that "[t]he nature of the place, 'the pattern of its normal activities, dictate the kinds of regulations of time, place, and manner that are reasonable.'" Grayned v. City of Rockford, ·'38 13,S, 10?, 116 (1972).]


regulations has no discernible direct effect on presidential security. It merely raises the level of anxiety among the security forces. That is to say, the conduct was not directed toward the White House or the President as a threat ta the safety of either. It was conceded at trial that demonstrators are not suicidal. The contemplated danger as to what some terrorist might do via exploiting the lawful activity of these demonstrators was all speculation. This, in itself, is not to be criticized, inasmuch as any security measures should be predicated on a "better safe than sorry' premise. But, inherent in such an approach is the probability of overbreadth in the choice of countermeasures. It appears to the court that this is such a case.

In light of their stated purposes these regulations, for,the most part, are totally ineffective; and to the extent that certain aspects of them could conceivably implement the asserted purposes they are demonstrably too restrictive.

Except for a problem presented by the space between the bottom of a sign resting on the sidewalk and ledge of the fence, the evidence adduced at trial did not support the defendants' claim that the restrictionS on the size and placement of signs were necessary to neutralize an impairment to their ability to adequately observe the sidewalk and Pennsylvania Avenue. From the Secret Service's point of view, the interference is virtually nonexistent, and as a matter of fact, their witnesses conceded that some of the signs prohibited by the regulations posed no problem in this regard. The Secret Service maintains


elevated observation posts which allow them to look down on the sidewalk and across Pennsylvania Avenue and into Lafayette Park even when signs 10 feet tall are on the sidewalk. And closed- circuit television affords constant surveillance of the White House grounds and the sidewalk. A requirement that the bottom edge of the signs held or set down within 3 feet of the ledge of the fence be at least 18-24 inches above the sidewalk level would eliminate the problem of concealment of items close to the ledge. While the Secret Service primarily operates from the grounds inside the fence, it is obvious that whatever problem of observation that might remain could be adequately dealt with by simply stationing someone on the sidewalk side of the fence, either Secret Service personnel or Park Police. Defendants assert some reticence about placing uniformed officers on the sidewalk in any number because they did not want to present the image of a 'banana republic.' A plainclothesman here and there could solve all of the problems of observation from the sidewalk side as well as the image problem.

The defendants' claim that large signs are likely to be used to scale the White House fence fell apart at the trial. There was no evidence that any sign belonging to the plaintiffs or anybody else had ever been used to scale the fence. The fence is constructed in such a way that it is relatively easy to climb over into the White House yard. There are iron cross bars between some of the railings and the scroll portion in the very center of the fence amounts almost to a ladder. In recent years over 60 persons, almost all deranged, have scaled the fence without using


any device of any kind to help them over. One person, according " to the testimony, used the help of a structure of some sort.

Structures are prohibited by other regulations not in issue here. Apparently, getting over the fence is no great Problem for anyone who wants to do so. Equally apparent is that the Secret Service is not particularly worried about it because it is well equipped to deal with such persons. In fact as recently as March 15, 1984 a man approached and jumped the middle portion of the fence into the north grounds of the White House complex and was promptly arrested, The White House grounds are thoroughly and regularly patrolled; and in addition even if no officer is observing the fence, a fence jumper would be detected immediately --even before he got over it. All persons who have ventured over the fence have been very quickly apprehended and the Secret Service indicates its capability to apprehend and deal with as many as 10 or 20, or more fence jumpers at any given time. As a matter of fact, Mr. Parr who is directly responsible for the protection of the First Family and its residence, concedes that the White House is the safest place in the world for them to be. Parr, Tr. at 50-51 (July 7, 1983).

The total ban on signs made of wood is unjustified. It appears clear to the court that any sign with a thickness not exceeding 1/4 inch, including one made of wood, would be of no assistance to anyone bent upon scaling the fence. As a matter of fact, it would be an impediment and utterly foolhardy for one to attempt to make use of such a sign for that purpose. Contrary testimony is incredible. The possibility that sheet explosives


might be concealed in wooden signs is adequately dealt with by the thickness requirement of not more than 1/4 inch on all signs. The testimony is that the thinnest sheet explosive is itself 1/4 inch, and that a sign of that thickness regardless of its composition has no capacity to conceal such explosives.

The requirement that a demonstrator maintain actual physical contact with a sign is oppressive, and has little or nothing to do with security or any other governmental interest.

The prohibition against holding a sign in a stationary position less than 3 feet from the ledge is of similar character. As a matter of fact, Mr. Parr, the Secret Service official charged with the duty of protecting the President, admitted as much--characterizing the 3 feet provision as arbitrary. Parr, Tr. at 60 (Dec. 14, 1983). Furthermore, it is obvious that when demonstrators stand closer to the fence the tendency to interfere with pedestrian traffic is lessened.

The defendants' claim that hollow metal supports could be used to conceal explosives, rockets, or other devices is grossly exaggerated; and while this may be theoretically possible, it is plainly not a probable threat that justifies the burdensome restrictions regarding sign supports. There is no meaningful danger, as defendants suggest that a terrorist will be able to use an unsuspecting demonstrator's hollow sign support to launch a rocket or conceal an explosive or weapon. According to government witnesses, so long as the sign support is under the control of the demonstrator it would be impossible to the necessary modification. Hollow sign supports permanently closed at both


ends would completely eliminate the possibility of hollow supports being used to transport explosives or other dangerous devices. And it has already been noted that hollow tubing of various sorts are not prohibited.

The prohibition against having a stationary sign within the sc-called central portion of the sidewalk is not justified on any score. Admittedly it has no bearing on security. Its purported rationale, in the light of the evidence, is flawed. The sole purpose of this provision, according to defendants, is to give tourists an unobstructed view of the White House or as they put it to preserve the opportunity for tourists to enjoy the White House experience, which they define as an unobstructed view of the front of the White House. However, "the White House experience" is not restricted to an unobstructed view of the structure for some tourists who prefer it. There is evidence in the record that many tourists, including classes of school children, seek to have their photographs taken while standing in front of the demonstrators in the center zone, with the White House as a background. This is "the White House experience" insofar as this latter group is concerned. And of course there is "the White House experience" cherished by demonstrators. The evidence establishes that the center portion of the fence with the White House clearly in the background is the prime focus of media coverage, and many demonstrators seek to take advantage of this. The government discounts this as a relevant factor by pointing out that demonstrators have no right to "maximize press coverage" by displaying stationary signs in the center portion of the sidewalk,


and that "the First Amendment simply does not guarantee news publicity for speakers and demonstrators." (Defendants' post- trial brief at 80.) While the court does not dispute this contention, it must also note that the government should not be allowed to deprive demonstrators of the opportunity to acquire publicity afforded by the center zone unless it can be established that some governmental interest cannot be served otherwise· In the court's view this has not been done. At any rate, it appears that any conceivable governmental purpose could well be served by allowing stationary signs, at least momentarily, in the center portion of the sidewalk. Thus all concepts of "the White House experience" would have a chance for enjoyment.

The flat ban on the placement of any parcel on the sidewalk except momentarily is clearly overbroad and unreasonable. Containers of supplies such as pamphlets, literature, and necessities not only facilitate, but in some cases enable demonstrators to covey their messages, e.g., mothers with young children and those persons conducting around-the-clock vigils. Although the placing of such containers on the sidewalk near a demonstrator cannot be characterized as a first amendment activity per se, it is. conduct which normally attends undisputed first amendment activity. And although characterized as a mere "time, place. or manner' restriction," the parcel regulation effectively eliminates most of plaintiffs' activities on the sidewalk. The efficacy of this parcel regulation as a security measure is at best very dubious. At the trial this matter was probed in depth and the evidence fell far short of justifying it, The regulation


does not appear to enhance in any meaningful fashion the ability to identify abandoned parcels. The overall effect according to the government's testimony regarding the parcel regulation, is that the security people feel more comfortable with it.

But a more critical reason why this regulation should not be condoned is that the bona fides of the asserted purpose of the regulation is severely undercut by the fact that it is not enforced even-handedly against demonstrators and non-demonstrators alike. And yet -- more intolerable--is the fact that even among demonstrators the regulation is enforced on a selective basis.

The defendants emphasize and reemphasize that these regulations are content neutral and are merely reasonable "time, place and manner" restrictions on first amendment behavior of the type which courts have repeatedly condoned. Additionally, the defendants point to the availability of Lafayette Park, the Ellipse and the Mall as alternative sites for the plaintiffs' activities. These circumstances, according to the defendants, should weigh heavily in the court's assessment of the validity of the regulations in issue, and entitle them to be measured by some standard a bit more relaxed than the "least restrictive means" test. This court, however, does not interpret any of the authorities to imply that the existence of "ample alternative means-- if they in fact do exist-- absolves the government of the responsibility to narrowly tailor its` regulations to serve asserted interests.

On the contrary, whenever it can be demonstrated that the result of the government's rule or policy is to limit in some significant degree the ease or


effectiveness with which a speaker can reach a specific audience with a particular message the government should lose the case unless it can establish that an important public objective unrelated to the message would be sacrificed by any less restrictive alternative. (L. H. Tribe, American Constitutional Law, at 686.]

And in speaking of first amendment activities on streets, Professor Tribe specifically observes that: "more focused regulations of 'time, place, or manner' are constitutionally compelled--even if the regulation challenged as invalid leaves would-be speakers or paraders with ample alternatives for communicating their views." Id. at 689 (footnotes omitted) (citing Schneider v. State, 308 U.S.147, 163 (1939) and quotation of Schneider in Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546, 556 (1976) 'one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised in source other place,").

Finally the court reemphasizes that it In no way discounts any apprehension about terrorism; and it is vexing to try to contemplate all of the dire possibilities. But it does not seem proper that peaceful demonstrators should be made to forego their activities in order to allay the fears of security forces which are based on remote possibilities of the type that were developed during the course of the trial of this case.


For the reasons stated in the foregoing memorandum the court


declares that certain portions cf the regulations in issue are unconstitutional and that the defendants be enjoined from the enforcement thereof

ORDER accordingly,

(signed, William B. Bryant)

Date:. April 26, 1984

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