THOMAS v. REAGAN

USDC Cr. No. 84-3552

61. Even when aesthetic and resource damage and threats to public safety were acknowledged, some commenters took the position that the Park Service is legally barred from addressing those concerns. See, for example, Admin. Rec. at III.A.3.28. The ACLU in particular argued that the exercise of First Amendment rights must predominate over other government interests. Id. Many of those opposed to the proposed regulations took the position that destruction of aesthetic quality must be tolerated to accommodate First Amendment rights. Admin. Rec. at III.A.3.65. Among these were numerous activist groups who signed a statement issued by a group called "Friends of First Amendment Rights in Lafayette and other Federal parks." Admin. Rec. at III.A.3.58.

62. Other comments focused upon specific restrictions contained in the proposed regulations. Several commenters opposed the size restrictions placed upon signs. Admin. Rec. at III.A.3.9, 31-33, 66-67, and 76. Those commenters argued that large signs are necessary in order to have their messages read from a long distance, especially from the White House, and are necessary for complex messages. Id. Further, the ACLU and the Sierra Club stated that they saw no reason for a limitation on the thickness of allowable signs. Admin. Rec. at III.A.3.33 and 76. Other commenters opposed the limitation on the number of signs that demonstrators could have in the Park at any one time. Admin. Rec. at III.A.3.35 and 87.

63. While generally agreeing that signs should be attended, most commenters opposing the proposed regulations disagreed with the requirement that a person stay within three feet of his/her sign. Admin. Rec. at III.A.3.34-35 and 76. The ACLU suggested

that there be exceptions for demonstrators who, for example, wish to cross the street to chat with passerbys, retrieve a hat blown off by the wind or go to the restroom. Admin. Rec. at III.A.3.34-35.

64. Several commenters also opposed the proposed prohibition on structures in Lafayette Park. Admin. Rec. at III.A.3.35-37, 76-77. The ACLU indicated that such a prohibition is not necessary and that it is overbroad. Admin. Rec. at III.A.3.35-37. While admitting that large, heavy structures such as desks, bookcases, and porcelain toilets "may" be inappropriate in Lafayette Park, the ACLU argued that present regulations are sufficient to keep these items out of the Park. Id.

65. Having considered the comments received on the proposed rulemaking, the National Park Service published a final rulemaking on March 5, 1986. Final Rule, 51 FR 7556; Admin. Rec. at II.A.1.

66. The final regulations adopted are as follows:

(11) The following are prohibited in Lafayette Park:

(i) The erection, placement or use of structures of any kind except for the following:

(A) Structures that are being hand- carried are allowed.

(B) When one hundred (100) or more persons are participating in a demonstration in the Park, a temporary speaker's platform as is reasonably required to serve the demonstration participants is allowed as long as such platform is being erected, dismantled or used, provided that only one speaker's platform is allowed per demonstrating group, and provided further that such speaker's platform is authorized by a permit issued pursuant to paragraph (b) of this section.

(C) When less than one hundred (100) persons are participating in a demonstration in the Park, a temporary "soapbox" speaker's platform is allowed as long as such platform is being erected, dismantled or used, provided that only one speaker's platform is allowed per demonstrating group, and provided further that the speaker's platform is no larger than three (3) feet in length, three (3) feet in width, and three (3) feet in height, and provided further that such speaker's platform is authorized a permit issued pursuant to paragraph (b) of this section.

(D) For the purpose of this section, the term " structure" includes props and displays, such as coffins, crates, crosses, theaters, cages, and statues; furniture and furnishings, such as desks, chairs, tables, bookcases , cabinets , platforms , podiums and lecterns; shelters, such as tents, boxes and other enclosures; wagons and carts; and all other similar types of property which might tend to harm park resources including aesthetic interests. Provided however that the term "structure" does not include signs; bicycles, baby carriages and baby strollers lawfully in the Park that are temporarily placed in, or are being moved across, the Park, and that are attended at all times while in the Park (the term "attended" is defined as an individual being within three (3) feet of his or her bicycle, baby carriage or baby stroller; and wheelchairs and other devices for the handicapped in use by handicapped persons.

(ii) The use of signs except for the following:

(A) Hand-carried signs are allowed regardless of size.

(B) Signs that are not being hand- carried and that are no larger than four (4) feet in length, four (4) feet in width and one-quarter (1/4) inch in thickness (exclusive of braces that are reasonably required to meet support and safety requirements and that are not used so as to form an enclosure of two (2) or more sides) may be used in Lafayette Park, provided that no individual may have more than two (2) such signs in the Park at any one time, and provided further that such signs must be attended at all times (the term "attended" is defined as an individual being

within three (3) feet of his or her sign(s), and provided further that such signs may not be elevated in a manner so as to exceed a height of six (6) feet above the ground at their highest point, may not be arranged or combined in a manner so as to exceed the size limitations set forth in this paragraph, and may not be arranged in such a fashion as to form an enclosure of two (?) or more sides. For example, under this provision, two four - foot by four - foot signs may not be combined so as to create a sign eight feet long and four feet wide, and three such signs may not be arranged to create a sign four feet long and twelve feet wide, and two or more signs of any size may not be leaned or otherwise placed together so as to form an enclosure of two or more sides, etc.

Final Rule, 51 FR 7566; Admin. Rec. at II.A.1.

7. Regulatory Changes

67. The final regulations do not ban demonstrations. Final Rule, 51 FR 7556; Admin. Rec. at II.A.1. Neither do they ban individual demonstrators or causes. Id. The final regulations allow all forms of traditional demonstrations, such as leafletting, marching, exhibiting signs, utilizing props and displays and having rallies. Id. The final regulations utilize time, place and manner restrictions to alleviate current problems that have arisen in the past two-years with the unprecedented use of numerous large signs and structures. Id.

68. Large signs and structures have not traditionally been part of demonstrations in Lafayette Park. Final Rule, 51 FR 7560; Admin. Rec. at II.A.S. The imposition of restrictions on the use of large signs and personal property on the White House sidewalk appears, in large part, to be the reason for the movement of large signs and structures to Lafayette Park. Id.; See also 36 CFR § 50.19(9) and (10). Once in Lafayette Park, the.

number and size of signs and structures grew until the Park Service was forced to consider additional regulatory limitations there also. Id.; See generally, Admin. Rec. at I.J.1-254.

69. The White House Sidewalk regulations, like the regulations here, do not prohibit leafletting, making a speech, having marches, exhibiting signs or engaging in any other traditional method of exercising First Amendment rights . See, 48 FR 28058-28063 (June 28, 1983). In fact, an individual may have a sign as long as twenty feet and as wide as three feet on the White House Sidewalk. 36 CFR § 50.19(e)(9).

70. The National Park Service has attempted to take a middle position in the final regulations that accommodates the exercise of free speech in the Park while still maintaining the aesthetic quality of the Park and meeting resource protection and safety concerns. Final Rule, 51 FR 7561; Admin. Rec. at II.A.6.

71. By promulgating these regulations, the National Park Service is responding to real problems now existing in Lafayette Park. See generally, Admin. Rec. at I.A.1-43; I.D.1-101; I.F.1 39; I.J.1-254; III.A.l.l-64; III.A.2.1-138. A handful of demonstrators have caused most of the problems in the Park and, therefore, will be impacted the most by the regulations addressing those problems. Id. However, the Park Service does not intend, by implementing these regulations; to prohibit those individuals from demonstrating. Final Rule, 51 FR 7560; Admin. Rec. at

72. Likewise, the Park Service has not allowed private citizens to interfere with those presently demonstrating in Lafayette Park, as charged by the ACLU with reference to Concepcion

Picciotto. Admin . Rec . at III.A.3.29-31. The Park Service examined Ms. Picciotto's complaints that the Park Police failed to stop private Individuals from damaging her signs. Final Rule, 51 FR 7560; Admin. Rec. at II.A.S. Police reports indicate that Park Police arrived only after the alleged damage was done in each of these incidents. Admin. Rec. at I.D.91-98. Having no authority to make arrests for misdemeanors not committed in their presence, the police appropriately referred Ms. Picciotto to the Citizens Complaint Bureau. Id.; see also, 16 U.S.C. ~ la-6.

73. In another incident not mentioned by the ACLU, the Park Police went to Lafayette Park in response to a complaint by Ms. Picciotto that she had been assaulted and one of her signs had been damaged. Final Rule, 51 FR 7560; Admin. Rec. at II.A.S. The alleged assailant, a member of the military, admitted to destruction of the sign. Id. He was then taken into custody and, pursuant to Park Police General Orders, turned over to military authorities. Id. The Park Police officer handling the complaint advised Ms. Picciotto to go to the Citizens Complaint Bureau to file a complaint and gave her a brochure on the Bureau. Id. The officer later went to the United States Attorney's Office to seek a warrant against the assailant. Id. That office declined to approve the application for a warrant. Id.

74. The final regulations limit the size of stationary signs permitted in Lafayette Park to the dimensions of four feet in length, four feet in width and one-quarter inch in thickness. Final Rule, 51 FR 7566; Admin. Rec. at II.A.11. Such a size limitation would prohibit large billboard-type signs that now occupy Lafayette Park. Id.

75. The proposed regulations were changed slightly to make it clear that the size and sign limitations apply to all signs that are not hand-carried. Final Rule, 51 FR 7563; Admin. Rec. II.A.8. Therefore, the limitations specified would be applicable to a sign placed on wheels when that sign is not being hand- carried. Id.

76. The National Park Service consulted its Service Sign System Specification Manual (hereinafter "Manual"} in order to arrive at a permitted sign size that fully accommodates the needs of demonstrators. Final rule, 51 FR 7563; Admin. Rec. at II.A.8. The Manual is utilized by National Park Service personnel to determine the sign size and lettering necessary to be adequately seen by pedestrian traffic. Admin. Rec. at I.G.38. The Park Service also consulted the Department of Transportation "Standard Alphabets" and the Transportation and Traffic Engineers Handbook. Admin. Rec. at I.G.1-36 and 51-55.

77. Utilizing standards set forth in the Manual, it was calculated that a sign four feet by four feet could contain at least ten lines of writing in a letter size that could be seen easily up to one hundred feet away from the sign. Final Rule, 51 FR 7563; Admin. Rec. at II.A.8. The Park Service recognizes that signs with that lengthy a message may not be readable from the White House or the White House sidewalk. Id. However in July of 1985, forty-four percent of the seventy-eight signs in Lafayette Park had a message consisting of ten words or less; of these, fifty percent had messages of five words or less. Admin. Rec. at I.F.1-39. In addition, signs up to three feet wide and twenty

feet long can be used on the White House Sidewalk itself. 36 CFR S 50.19(e>(9). Also, there is no limitation imposed on the size of hand-carried signs permitted in Lafayette Park. Final Rule, 51 FR 7566; Admin. Rec. at II.A.11.

78. The final regulations limit the thickness of stationary signs allowed in Lafayette Park to one-quarter inch. Final Rule, 51 FR 7566; Admin. Rec. at II.A.11. Without a thickness restriction, an individual could utilize a "sign" that was four feet long, four feet wide and four feet thick, thus defeating the structures prohibitions. Id.

79. A quarter-inch was chosen as the maximum thickness dimension because that is a standard size of plywood, the material most often used for signs in Lafayette Park, and is relatively light and easier to move than other plywood of greater thickness. Final Rule, 51 FR 7563; Admin. Rec. at II.A.8. Park Service employees indicated that quarter-inch plywood weighs half of what half-inch plywood weighs. Id. For example, a four-foot by eight-foot sheet of external plywood one-quarter inch thick weighs twenty-four pounds; the same sheet one-half inch thick weighs forty-eight pounds. Id.

80. Language was added to the final regulations to make it clear that the sign thickness limitation is not applicable to braces that are reasonably required to meet support and safety requirements. Final Rule, 51 FR 7566; Admin. Rec. at II.A.11. However, this exclusion is not intended to allow huge "A-Frame" type supports or other supports that are not reasonably required to support a four by four sign. Final rule, 51 FR 7564; Admin.

Rec. at II.A.9 In addition, braces may not be used to form an enclosure of two or more sides. Id. This requirement is added to assume that individuals do not use the exception to the thickness limitation to convert their signs into structures, shelters or places for storage of property. Id.

81. To accommodate individuals and groups who wish to have larger signs, the National Park Service exempted all hand-carried signs from the size limitations. Final rule, 51 FR 7564; Admin. Rec. at II.A.9. This allows demonstrators to have large signs, which includes banners, but assures that the signs will not cause damage to park resources because they will not be placed on the ground, will not create safety concerns because they will be held by demonstrators, and finally, will not create aesthetic problems because they can be easily moved and will not be permanent in nature. Id.

82. To avoid circumvention of the size limitations on stationary signs, the final regulations also prohibit a conforming size sign from being elevated to exceed a height of six feet above the ground. Final Rule, 51 FR 7566; Admin. Rec. at

The National Park Service allowed signs to be elevated in order to accommodate the use of supports and to allow demonstrators to make signs more visible. Final Rule, 51 FR 7564; Admin. Rec. at II.A.9.

83. Also to avoid circumvention of the size limitations, the final regulations prohibit the arrangement or combination of stationary signs so as to exceed the permitted size limitations. Final Rule, 51 FR 7564; Admin. Rec. at IL.A.9.

Memorandum Continued

Contents

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