MR. LAWRENCE; "Your Honor, that was an overall challenge to
the regulations at issue. I am not sure exactly where the Quakers
-- it is my understanding that for a while they conducted a vigil
on the White House sidewalk."
(CCNV v. WATT CA- 81-2844, TRO HEARING, JUDGE RICHEY, NOVEMBER 25,
1981, pg. 21, see also Tr. B. para. , see also Complaint para.
22, 23, 24 and 108).
Notwithstanding those representations, on June 4, 1982
defendant Fish suspended the 30 day delay of effectiveness of
regulations provided for in 5 USC 553(d) (Tr. B. para 28), and
although plaintiff had been using no temporary shelters, breaking
ground, making fires, preparing food or otherwise creating
"impacts the area cannot sustain," plaintiff was arrested on June
17, 1982, in a prearranged operation attended by defendants
Lindsey, Bangert, and Robbins (Tr. Ex. 71). Although plaintiff
tried to communicate to defendants the fact that his activity was
protected, defendants refused to listen. (Tr. B. para e.g. 31-37,
see also Complaint para 42-47).
"The disposition of this case reveals a mistaken assumption
regarding the motives and behavior of government officials who
create and administer content neutral regulations... There are
facts in this case that raise a substantial possibility that the
impetus behind this revision derived less from concerns about wear and tear on parks,
than on other, more 'political' concerns (CCNV v. Clark, June 26,
1984, dissent at 14-15).
". . .The political dynamics likely to lead officials to a
disproportionate sensitivity to regulatory as opposed to First
Amendment interests can be discerned in the background of this
case. . . (M)y intention is to illustrate concretely that
government agencies by their very nature are driven to
over-regulate public forums to the detriment of First Amendment
rights, that facial viewpoint-neutrality is no shield against
unnecessary restrictions on unpopular ideas or modes of expression,
and that in this case in particular there was evidence readily
available that should have impelled the Court to subject
Government's restrictive policy to something more than minimal
scrutiny" (ibid at 15-16).
Thomas alleged defendants realized there was no possibility of
using regulatory semantics to "color" his person out of the park,
so they decided instead to concentrate on removing his signs to
some location where they would attract less attention, and be
easier to ignore (Tr. B. para 68, 69, 75, 92 see also, Amended
Complaint para 16).
7
"(I)t must be noted that petitioner's presence was
unquestionably lawful. It was a public facility, open to the
public... But there is another and sharper answer which is called
for. We are here dealing with an aspect of a basic Constituitonal
right -- the right under the First and Fourteenth Amendments
guaranteeing freedom of speech and of assembly and freedom to
petition the Government for a redress of grievances... As this
Court has repeatedly stated, these rights are not confined to
verbal expression. They embrace appropriate types of action which
certainly include the right in a peaceable and orderly manner to
protest by silent and reproachful presence in a place where the
protestant has every right to be" (Brown v. Louisanna, 383 Us 131
(1966)).
Subsequently the Park Service acted to restrict picketing on
the sidewalk in front of the White House. see White House Vigil,
746 F2d 1518. Although the Appeals Court did not scrutinize the
factual matters at issue in that case, the Court did note that:
"On the circumstances existing during the relevent time here
a strong argument could have been made that a regulation
(promulgated under a conspiracy with the intent of) banning all
(effective methods of expression open to William Thomas,
individuals, or groups of 25 or less, in the Park) would have been
unconstitutional." ERA v. Clark, U.S. App. 84-5283, Opinion filed
October 26, 1984, at 16 [parenthesis added]).
The trial court approached the threshold of this question in a
decision which was reversed ). However that reversal came on
legal rather than factual grounds leaving that "particular issue"
unresolved (inter alia at 13.
As the majority of the Supreme Court footnoted:
"The fact that the ordinance is capable of valid
application does not necessarily mean that it is valid as applied
to these litigants. We may not simply assume that the ordinance
will always advance the asserted state interests sufficiently to
justify its abridgement of expressive activity. Landmark
Communications, Inc. v. Virginia, 345 US 829, 844 (1978). See
also Brown v. Social Workers, 74 Camp.Comm. 459 US 87 (1983);
Police Department of Chicago v. Mosley, 408 US 92 (1972); NAACP
v. Alabama, 347 US 449 (1958); et al." (Members of City Council
v. Taxpayers for Vincent 104 S.Ct. 2128 (1984).)
The fact that the suppression of expression in Lafayette Park
(and if there, where not?) may have been been approached one step
at a time hardly cleanses the rules of their illegitimate purpose.
The regulations currently at issue might reasonably be seen as the
culmination of an active campaign to drive demonstrators away from
the front of the White House. As a result the alternative channels
of communication which must exist if the regulations are to be
upheld are severly limited.
When the Supreme Court upheld the anti-camping regulations in
Clark it found unimpaired alternative means of communication
because the rules "otherwise left the demonstration intact with its
8
symbolic city, signs and the presence of those who were willing to
take their turns in a day-and-night vigil." 52 U.S.L.W. 4988.
Likewise the D.C. Circuit declined to strike down limitations
on the size and placement of signs on the White House sidewalk
because the protesters "may always carry their demonstration
immediately across Pennsylvania Avenue to Lafayette Park." White
House Vigil 746 F2d 1528. Both of these alternatives would be cut
off by the proposed regulations. This fact alone renders
constitutionally suspect the Park Service proposal. There is ample
reason for this Court to examine very carefully the motives
underlying the rulemaking, and, if shown to be impermissable, dam
the errosion of free expression at this juncture.
"As (previous Supreme Court decisions) demonstrate, there are
some purported interests -- such as a desire to suppress support
for a minority party or an unpopular cause, or to exclude the
expression of certain points of view from the market place of ideas
-- that are so plainly illegitimate that they would immediate
invalidate the rule. The general principle that has emerged from
this line of cases is that the First Amendment forbids the
government from regulating speech in ways that favor some
viewpoints and ideas at the expense of others. See Bolger v.
Youngs Products Corp., 103 S.Ct. 2875, 2879 (1983); Consolidated
Edison Company v. Public Service Comm'n, 447 US 530, 535-536
(1980); Carey v. Brown, 447 US 455, 462-463 (1980); Police
Department of Chicago v. Mosley, 408 US 92, 95-96 (1972)."
(Members of City Council v. Taxpayers for Vincent 104 S.Ct. 2128
(1984).).
"That general rule has no application to (Taxpayers for
Vincent). For there is not even a hint of bias or censorship in
the city's enactment or enforcement of this ordinance. There is no
claim that the ordinance was designed to suppress certain ideas the
city finds distasteful or that it has been applied to appellees
because of the views that they express." (Ibid.; emphasis added.)
Unfortunately, in the case presently before the Court, it
cannot seriously be said that there is "not even a hint of bias or
censorship" in the enactment of 36 CFR 50.19(e)(11)(12) ("the
Regultion"). In Taxpayers for Vincent, the Court found that the
signs prohibited by the ordinance do constitute visual clutter and
blight, and by banning those signs, the city did no more than
"eliminate the exact source of the evil it sought to remedy."
"In light of these facts, plaintiff's claim that a memo
from Secretary Watt, and subsequent contacts between Assistant
Solicitor Robbins, a principle drafter of the regulations, and the
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.'
"When Assistant Solicitor Robbins spoke to Secretary Watt
about development of the regulations in March of 1983, the
9
Secretary told Mr. Robbins to 'keep up the good work.' There was
also contact with the White House to inform White House counsel of
the status of the regulations. Additionallly 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 co-incidence.
"In the circumstances it would appear that plaintiff's claim
in this regard can in no wise be charactorized as frivilous;
however in light of this court's disposition of this case, it need
not resolve this particular issue." (Memorandum opinion, J.
Bryant ERA v. Watt, USDC CA 83-1243, filed April 26, 1984, Tr. B.
para 132).
Certain stipulations can be made with regard to 36 CFR
50.19(e)(11)(12), the regulation Constitutionally challenged here.
These stipulations do not support the premise that the rule will
rectify the "evil it sought to remedy."
Case Listing --- Proposition One ---- Peace Park