THOMAS v. REAGAN

USDC Cr. No. 84-3552

84. The proposed regulations were revised slightly to prohibit the arrangement of signs so as to form an enclosure of two or more sides. Final Rule, 51 FR 7564; Admin. Rec. at II.A.9. This requirement, like the Parallel requirement for sign bracing, is an attempt to prevent the use of signs for noncommunicative purposes such as for structures , shelters, and storage spaces. Id.

85. In an attempt to avoid the problem of one individual utilizing a great deal of space with unlimited numbers of signs and to avoid an accumulation of signs in the Park, the final regulations limit the number of stationary signs that a single individual can have in Lafayette Park at one time. Final Rule, 51 FR 7564; Admin. Rec. at II.A.9. The final regulations limit each person to two stationary four-foot by four-foot signs at any one time in Lafayette Park. Id. This provision was included to diminish the aesthetic impact that a few individuals could have if allowed to accumulate unlimited numbers of signs. Id.

86. In addition to limiting the number of signs that an individual may have in Lafayette Park, the final regulations require that stationary signs in the Park be attended. Final Rule, 51 FR 7566; Admin. Rec. at II.A.11. The term "attended" is defined in the regulations as being within three feet of a sign. Id. This requirement was included to assure that demonstrators take responsibility for their signs. Final Rule, 51 FR 7564; Admin. Rec; at II.A.9. Specifically, the attendance requirement is intended to assure that signs can be readily identified with specific individuals so that safety problems can be quickly

rectified, so that signs can be moved temporarily for routine park maintenance such as grass cutting, trimming and watering, and so that Park Service personnel can tell which signs are abandoned. Id.

87. The three-foot distance requirement was first suggested by the Court of Appeals for the District of Columbia Circuit. White House Vigil for the ERA Committee v. Watt, No. 83-1775 (D.C. Cir., Order issued Aug. 8, 1983). In the course of reviewing a preliminary injunction against enforcement of the White House Sidewalk regulations, the Court modified the Park Service's definition of the term "attended" to require individuals to be within three feet of their signs. Id. While the Court finally approved the original definition, i.e., in physical contact, for· the White House Sidewalk, the Park Service adopted a three-foot requirement for Lafayette Park to enable demonstrators to move a short distance from their signs to carry on other activities such as engaging in discussions with others or passing out leaflets or other. publications. Final Rule, 51 FR 7564; Admin. Rec. at II.A.9.

88. The Park Service does not believe that requiring only that an individual be somewhere in the seven-acre Park, as suggested by one commenter, would meet the need to identify specific individuals with specific signs. Final Rule, 51 FR 7564; Admin. Rec. at II.A.9. Likewise, a regulation allowing individuals to leave the Park to eat or use the bathroom or chat with persons on the White House Sidewalk, as suggested by other commenters, would also defeat any efforts toward accountability and would be impossible to enforce. Id.

89. The National Park Service believes that the sign limitations described will together solve many of the problems that have arisen in the Park. Final Rule, 51 FR 7564; Admin. Rec. at II.A.9. No restriction alone meets all of the Government's interests. Id. For example, a prohibition of unattended signs alone would not necessarily prevent an individual from utilizing a disproportionate amount of space in the Park. Id. Without corresponding size and number limitations, that individual could surround him/herself with a number of large signs and still be within three feet of some part of each sign. Id. Sign size and number restrictions, without a requirement that the signs be attended, would result in the numerous problems associated with absentee owners, as described above. Id.

90. The National Park Service initially considered a total ban on all structures in Lafayette Park. Final Rule, 51 FR 7565; Admin. Rec. at II.A.10. However, to avoid working a hardship on large demonstration groups that require a platform so that speakers can be heard and seen effectively by demonstration participants, the Park Service made an exception for temporary speaker's platforms that are reasonably necessary when a demonstrating group numbers one hundred or more persons. Id. For a group numbering less than one hundred persons, a small, temporary "soapbox" platform is allowed. Id.

91. In addition, so as not to prohibit altogether symbolic structures sometimes used by demonstrators, the National Park Service has revised the proposed regulations to allow any structures in Lafayette Park that, in fact, are being handcarried Final Rule, 51 FR 7565; Admin. Rec. at II.A.10. The final regulations

allow demonstrators to carry various props and symbolic structures such as effigies, coffins and crosses. Id. The Park Service made this change in response to commenters., such as the ACLU, who pointed out that the proposed regulations prohibited some structures the use of which would have minimal impact on park resources, public Safety, and aesthetic interests. Id.

92. Several changes were made in the structures provisions to clarify their intent and narrow their scope. First, the final regulations require that one hundred or more persons actually attend a demonstration before a large speaker's platform can be used. Final Rule, 51 FR 7565; Admin. Rec. at II.A.10. This avoids the situation in which a group claims to have one hundred persons "involved" in a demonstration but only five show up. Id. Second, the final regulations allow speaker's platforms only when those platforms are being erected, dismantled or used. Id. These restrictions were added so that unattended speaker's platforms would not become commonplace in the Park. Id. Third, the regulations were revised to allow soapbox platforms as large as three feet long, three feet wide, and three feet high. Id. Finally, the Park Service extended the provision requiring that structures in the Park be authorized by permit to soapbox structures. Id.

93. In addition, the National Park Service revised the proposed regulations so as to define the term "structure" by example in the final regulations. Final Rule, 51 FR 7565; Admin. Rec. at II.A.10. This revision responded to a suggestion by a commenter and to a recent District Court ruling in a criminal

case finding that the term "structures" in the current regulations as applied to the White House Sidewalk is unconstitutionally vague. United States v. Snyder, Cr. Nos. 85-0~22 and 85-0306 (D.D.C. Opinion filed Dec. 6, 1985).

94. The final regulations define the term "structure" by giving examples of categories of items included within the term, i.e., props and displays, furniture and furnishings, shelters, and wagons and carts, and then giving further examples of items included within the categories. Final Rule, 51 FR 7566; Admin. Rec. at II.A.11. The list of categories was compiled from Park Service reports and staff observations of structures that have been used in Lafayette Park and that create the problems. Final Rule, 51 FR 7565; Admin. Rec. at II.A.10; See generally, Admin. Rec. I.D.1-101 and I.5.1-254. For example, desks and chairs have been used extensively in the Park, creating several outdoor office spaces. Admin. Rec.at I.J.67, 69, 86, 94-95, 114, and 159. Various shelters have been created, off-times out of large signs, in which persons have been found sleeping. Admin. Rec. at I.5.63, 70, 108, 139, 149, 175-176, and 247. Props and displays have included such items as a toilet, chests, doors, and primitive buildings of unsafe construction. Admin. Rec. I.J.5859, 76-77, 89-90, 100-104, 112, 121-122, 125-126, 136-137, 163, 230-233, 249, and 253-54. Carts have been filled.with trash and left in the Park as symbolic structures. Admin. Rec. at I.J.55, 72, 105, 110, 156, 177-178, 225, and 235. These types of items, especially when stationary in the Park, have caused physical damage to the Park as well as substantially diminishing its aesthetic quality, while communicating little. See generally, Admin. Rec. at I.J.1-254.

because it is not possible to list every structure that might cause damage in Lafayette Park, a "catch-all" phrase was added to the examples to include "all other similar types of property which might tend to harm park resources including aesthetic interests." Final Rule, 51 FR 7566; Admin. Rec. at II.A.11.

95. The final regulations state that certain items are not included within the definition of the term "structure". Final rule, 51 FR 7566; Admin. Rec. at II.A.11. These include means of transport and devises used by infants and handicapped persons. Id. The final regulations indicate that wheelchairs and other devices for the handicapped in use by handicapped persons will not be considered to be structures. Id. Further, the final regulations except bicycles and baby carriages and strollers temporarily placed in or being moved across the Park as long as these items are attended (defined as an individual being within three feet of the bicycle, baby carriage, or stroller). Id. Finally, to avoid any misunderstanding, the final regulations make clear that signs are not included within the definition of the term "structures". Id.

Respectfully submitted,

JOSEPH E. DIGENOVA, DC BAR #073320

United States Attorney

ROYCE C. LAMBERTH, DC BAR #189761

Assistant United States Attorney

JOHN D. BATES DC BAR #934927

Assistant United States Attorney

MICHAEL L. MARTINEZ DC BAR #347310

Assistant United States Attorney

Contents

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