THOMAS v. REAGAN

USDC Cr. No. 84-3552

70. "The ACLU questioned the motives of the Park Service in promulgating the regulations at issue and concluded that the proposed restrictions went beyond what was necessary to achieve government purposes." (e.g. Ad.Rec. III.A.3.23-31; see also Ad.Rec. A.3.112; compare "FACTS" para. 58.)

71. "Many of the commenters opposing the proposed regulations ... took the position that either there is no problem in Lafayette Park or that the problem can be handled under existing regulations. The ACLU, for example, stated that the Park Service has misrepresented the current situation and that visitors to the Park find the ongoing demonstrations to be 'a thrilling example

of their democracy in action'." (Fed.Reg. March 5, 1986; see Ad. Rec. III.A.3.27-25.) (Compare "FACTS" para. 59.)

72. At least one commenter disputed the safety problems and resource damage allegedly done by large signs, although the regulation writers seemed to ignore him. (Ad.Rec. III.A.3.104- 108; attachment missing from Record (see "Notice of Filing Amendment to the Administrative Record" filed this date); compare Defendants' "FACTS" para. 60.)

73. Many of those opposed to the proposed regulations took the position that "destruction of aesthetic quality" is a convenient euphemism which might be utilized by people who desire to restrict First Amendment rights. (Ad.Rec. III.A.3.65; compare "FACTS" para. 61.)

74. Some comments opposed the size restrictions placed upon signs because large signs are necessary in order to have their messages read from any reasonable distance. · Some complained that restricting demonstrators to two (2) signs would unnecessarily hamper, interfere with, or deter those who had a lot to say. Others said the thickness regulation lacked reason. (Compare "FACTS" para. 62.)

75. Generally everyone agreed that signs should be attended; some commenters, however, felt that the requirement that a person stay within three feet of his/her sign was extremely arbitrary. (compare "FACTS" para. 63.)

76. Several commenters also opposed the proposed prohibi- tion on structures in Lafayette Park (Ad.Red. III.A.3.35-37), indicating that such a prohibition is not necessary and that it is overbroad, and that present regulations are sufficient. to

administer any "structure problems" which might arise. (Compare "FACTS" para. 64.)

77. It would appear that the Park Service did not even consider the wealth of reasonable observations critiquing their proposed rulemaking, because the final rulemaking of March 5, 1986 was, save for an increase of 1'xl'xl' in size of soapbox, just as restrictive as that published August 20, 1985. (Compare "FACTS" para. 65.) (See also Federal Register November 13, 1981, Fish 8/21/86 Deposition Exhibit; Trial Exhibit No. 8.)

78. The final regulations adopted prohibited:

i) The erection, placement or use of structures' of any kind except:

A) Structures that are being handcarried,
B) A temporary speaker's platform for a group of one hundred or more persons participating in a demonstration,
C) A "soapbox" speaker's platform (no bigger than three feet by three feet by three feet) when less than one hundred persons are demonstrating,
D) The term "structure" includes "statues." (ii) The use of signs except:

A) Hand-carried signs,
B) Signs that are no larger than four feet by four feet by one quarter inch, provided that no individual may have more than two such signs, and provided further that a person must be within three feet of such signs at all times and provided further that such signs may not be elevated to exceed a height of six feet above the ground, or to form an enclosure of two or more sides. (Compare "FACTS" para. 66.)

79. The final regulations ban and/or place unnecessarily burdensome and overbroad restrictions on all traditional forms of conduct available to an individual, which would have effect or propensity to attract a crowd or onlookers. (Compare "FACTS" para. 67.)

80. Large signs and structures have traditionally been part of demonstrations in Lafayette Park. In fact the ruling in ERA v, Clark, USDC CA 93-1243 (X Document. at p. 29) recognized that fact, and the Federal Register explained the reason for the movement of large signs and structures from the south sidewalk of Pennsylvania Avenue to the north sidewalk in Lafayette Park appeared to be at least in part as a result of the White House sidewalk regulations. (Fed.Reg. March 5, 1986, p. 7560.) Now the Park Service has imposed additional regulatory limitations to deal with the identical situation that had purportedly been dealt with on the White House sidewalk under 36 CFR 50.19(e)(9)(10.) (Compare "FACTS" para. 68.)

81. Although defendants have shown they are capable of making the representation that the "White House sidewalk regulations ... do not ... prohibit ... any ...' traditional method of exercising First Amendment rights" (compare "FACTS" para. 69), the record of this case illustrates that those regula- tions can and have been utilized to prohibit such traditional exercise (e.g. Restatement of Claim para. 82, 83).

82. Factually what the National Park Service has done is to prohibit large signs which have effectively, harmlessly, and traditionally communicated a message which was in opposition to a basic administrative (nuclear weapons) policy. The Park Service has effected this prohibition ·'to, purportedly, address "real problems," and the National Park Service has attempted to appear as if they are taking a "middle position ... that accommodates the exercise of free speech." (Compare "FACTS" para. 70, 71.)

83. In promulgating these regulations, the NPS does not

even purport co respond to any novel "real problems." (Signs and structures, of course, have been allowed consistently by various decisions of local federal courts; see Defendants' Answer, para. 73, filed July 31, 1986, compare Restatement of claim, para. 73.) defendants merely make the representation that they need sign size limitations to deal with "real problems" allegedly caused by a "handful of demonstrators" who, it is claimed, "have caused most of the problems in the park, and therefore, will be impacted most by the regulations." (Compare "FACTS" para. 71.)

84. Plaintiffs claim that William Thomas , Concepcion Picciotto, and Ellen Thomas were the "handful of demonstrators" "impacted most by these regulations," and deny that they "caused most of the problems in the Park." (Ibid.)

85. Further, Thomas and Concepcion are the "two indiv- iduals" mentioned by defendants Robbins and Bangert in the Federal Register of April 22 and May 17, 1983 as·examples of why sign size limitations were necessary on the White House sidewalk. (Ibid.) (See Fish 8/21/86 deposition exhibits.)

86. Independent of this action the American Civil Liberties Union has charged that the National Park Service allowed private citizens to interfere with those presently demonstrating in Lafayette Park. (Compare "FACTS" para. 72.)

87. Defendants offer police reports to support their representations as to what happened on certain occasions. Plaintiffs would present a different account.

88. Defendants admit that on one occasion an individual physically assaulted Concepcion Picciotto, and that eventually ... an officer went to the U.S, Attorney to seek a

warrant, but that the U.S. Attorney declined to issue a warrant. (Compare "FACTS" para. 73; see also Motion for Joinder of Parties, filed August 27, 1986.)

89. The final regulations would "prohibit large billboard- type signs" which have traditionally been used by demonstrators in Lafayette Park, and which, in themselves, have caused no "real problem" with "resource damage" or "public safety," and which are not widely considered to be a "visual blight" outside circles which support administration policy, or which get paid to enforce that policy. (Compare "FACTS" para. 74.)

90. The proposed regulations were changed ... for no apparent reason ... to insure that it would be physically impossible for an individual to have a sign large enough to "attract a crowd or onlookers" for longer than a very short period of time. (Compare "FACTS" para. 75.)

91. National Park Service consultations with its Service Sign System Specification Manual did not arrive at a sign size that comes anywhere close to accommodating the needs of demonstrators. (Compare "FACTS" para. 76; see Thomas Affidavit filed June 19, 1986.)

92. The Park Service recognizes that signs with ten lines of writing "may not" be readable from the White House sidewalk. Plaintiffs believe that is one of the intentions of this regulation. (Compare "FACTS" para. 77.)

93. Again defendants remind the court that the White House sidewalk regulations ostensibly allow signs 3 x 20 feet, but fail to note the fact that plaintiffs have had signs much smaller than that confiscated by police, without probable cause. (Compare

"FACTS" para. 77; compare Restatement of Claim, para. 82, 83.)

94. There are, obviously, many physical limitations imposed on the size of hand-held signs. (Compare "FACTS" para. 77, 81.)

95. The "thickness provisions" of permissible signs is, apparently, arbitrary and capricious. (Compare "FACTS" para. 78 also 79.)

96. Language was added to the "thickness provisions" which illustrates that they are arbitrary and capricious, and simply reiterate (literally) the provisions of previously existent regulations ... e.g. 36 CFR 50.27 and 50.7. (Compare "FACTS" para. 80.)

97. It would appear that defendants have simply articulated various pretexts to assure that individuals will be unnecessarily denied the ability ... previously recognized as a right ... to have large signs in a public forum on a symbolic, long-term basis. (Compare "FACTS" para. 81.) Compare letter from the House of Representatives:

"...(W)hy wasn't this stopped after the Vietnam war? This has been going on far too long.

"I bet those people are being paid to protect those signs. The people who actually promote such topics should have to LIVE there." (Emphasis in the original.) (Ad.Rec.)

98. Defendants have devoted considerable effort to insuring that individuals could not "circumvent the size limitations on stationary signs." (Compare "FACTS" para. 82 and 83.)

99. The proposed regulations were arbitrarily and capri- ciously "revised slightly" to prohibit situations prohibited in previously existent regulations ... e.g. 36 CFR 50.27 and 50.7. (Compare "FACTS" para. 84.)

100. Arbitrarily and capriciously defendants have limited individuals to having two 4' x 4' foot signs, which may not be arranged to make one 4' X 8' foot sign. (Compare "FACTS" para. 85.)

101. Arbitrarily and capriciously defendants have required individuals to be within three feet of a sign. (Compare "FACTS" para.

102. The "three foot attendance distance" helps to demon- strate the progressive, cumulative, precedent-setting trend of unreasonable, oppressive, and burdensome regulations. (Compare "FACTS" para. 87.)

103. Under the pretext of meeting the "need to identify specific individuals with specific signs" the Park Service has arbitrarily and capriciously passed a regulation requiring an individual to be within three feet of a sign. (Compare "FACTS" para. 88.)

104. The National Park Service purports that this regulation solves "problems" ... e.g. "numerous problems associated with absentee owners" ... which it had previously identified as not being problems. (Compare "FACTS" para. 89; compare Ad.Rec. I.A.22-23.) (Supra. 50.)

105. The National Park Service has passed a regulation which "works a hardship" on any "group numbering less than a hundred persons" by arbitrarily and capriciously limiting their ability to "attract a crowd or onlookers," while exempting groups over 100 persons from that hardship. (Compare "FACTS" para. 90.)

106. The proposed regulation was revised so that structures which would not have the effect or propensity to attract a crowd

or onlookers (3'x3'x3' soapbox platforms) would not be prohibited by the regulations. (Compare "FACTS" para. 91.)

107. The proposed regulation was revised to clarify the intent of the regulation: that none hundred or more persons actually attend (sic) a demonstration" before being allowed a speaker's platform which might have the effect or propensity to "attract a crowd or oniookers." (Compare "FACTS" Fara. 92.)

108. In response to a suggestion by a commenter and ts a zecent District Court ruling in a criminal case (USA v. Snyder, CR 85-0222, 85-0306), the final regulations define the term "structure" to include many items which a) have traditionally been used in demonstrarions at Lafayette Park, for decades, le.g. chairs, tables for literature) (supra . 54) and b) the Park Service has previously proven not to be a "real problem" by having removed them under then-currently existent, regulations. (Supra. 31, 48.) (Compare "FACTS" para. 93, 94.)

For these reasons and others set out in the accompanying Memorandum of Points and Authorities in Support of Plaintiffs' Motion for Consolidation of Trial on the Merits with Hearing on Preliminary Injunction against 36 CFR 50.19(e)(11)(12), the regu- lations are invalid and unconstitutional and their continued enforcement should be enjoined.

Respectfully submitted this 22 day of September 1986.

WHITE HOUSE ANTINUCLEAR VIGIL, by

William Thomas, Plaintiff ProSe

1440 N Street NW, #410

Washington, DC 20005

(202) 462-3542

PEACE PARK ANTINUCLEAR VIGIL, by,

Ellen B. Thomas

P.O. Box 27217

Washington, DC 20038

(202) 462-3542

Contents

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