USDC Cr. No. 84-3552

Nonetheless, precedent in this area teaches that the potentially unconstitutional vagueness of a regulation may be ameliorated through procedures providing an avenue whereby an authoritative interpretation of the restriction may be obtained before an individual hazards conduct that may fall within its proscriptive scope. In Village of Hoffman Estates v. Flipside, Hoffman Estates. Inc., 455 U.S. 489 (1982), the Supreme court rejected a pre-enforcement facial challenge on First Amendment overbreadth and vagueness


grounds to a municipal ordinance that required businesses wishing to sell drug paraphernalia to secure a license to do so. Sale of such items without a license exposed the vendor to daily fines. Reversing a Court of Appeals decision that the regulation was unconstitutionally vague, the Court observed:

The degree of vagueness that the Constitution tolerates -- as well as the relative importance of fair notice and fair enforcement -- depends in part on the nature of the enactment.
Id. at 498. The Court listed several factors that should be considered when evaluating the constitutional significance of a regulation's vagueness. Included among these was whether
the regulated enterprise may have the ability to clarify the meaning of the regulation by its own inquiry, or by resort to an administrative process.
Id. (footnote omitted).

Similarly, in Letter Carriers, the Court upheld against a vagueness challenge a regulation implementing the Hatch Act's restrictions on political activity by federal civil servants , Acknowledging that "[t]here might be quibbles about the meaning of" particular phrases defining the proscribed political activity, 413 U.S. at 577-78, the Court determined that the challenged regulations met constitutional standards of clarity. The Court emphasized the availability to individual civil servants of interpretive rulings regarding the permissibility of particular forms of


political activity:

It is also important in this respect that the Commission has established a procedure by which an employee in doubt about the validity of a proposed course of conduct may seek and obtain advice from the [Civil Service] commission and thereby remove any doubt there may be as to the meaning of the law, at least insofar as the Commission itself is concerned.
Id. at 580, Cf. Houston v. Hill, 107 S. Ct. 2502, 2513 (1987) (holding invocation of Pullman abstention doctrine inappropriate where local ordinance's language "is plain and its meaning unambiguous").

As there was for the civil servants in Letter Carriers and for the drug paraphernalia vendors in Hoffman Estates, there exists in the present situation an avenue for particularized interpretation of the regulations restricting the time, place, and manner of plaintiffs' First Amendment activity in Lafayette Park. Department of the Interior regulations establish a permit procedure whereby those who wish to demonstrate in areas designated as the "National Capital Region parks,* which areas include Lafayette Park and other memorial sites, may apply for and receive authorization to carry out a specific activity within those areas.

Although not required to obtain a permit because their vigil involves fewer than twenty-five participants, see 36 C.F.R. 7.96(g) (2) (i), plaintiffs could pursue this avenue


and have in the past availed themselves of the permit procedure for finite periods. Moreover, they have gained authorization thereby to conduct their demonstration according to standards that refine the rather amorphous definition of "camping" found in the regulation itself. See Permit Application Form attached as Appendix A Specifically, the standard permit application requests "[p]lans for the proposed activity,' including "the complete time schedule for the activity." Id. at para. 10. In addition, the application directs potential demonstrators to "[l]ist all props, stages, sound equipment, and other items to be provided . (Include approximate number and size(s) of supports, standards, necessary medical/sanitary facilities and other similar items)." Id. at para. Il(a). The permit that is ultimately issued if such an application is granted, as was the case with plaintiffs' permit in December of 1987, bears the same reference number that appears on the application and would seem ta reflect authorization of the particular demonstration described by the applicants in the application itself. See Permit attached as Appendix B.

The permit procedure reflects a fact-specific communication between a potential demonstrator and the law enforcement agency that carries the responsibility as well as the authority to enforce the time, place, and manner regulations that constitute the background rules for all demonstrations in National Park areas. Hence, the permit


procedure provides a mechanism for generating practical and comprehensible standards for plaintiffs' conduct of a twenty four hour vigil. As indicated, the application itself invites a detailed catalogue of the type and quantity of personal property the demonstrator wishes to possess in the park. Moreover, the ~applicant may indicate the length of time he or she desires to continue the expressive activity. In the course of processing these applications, the Park Service has the opportunity to reject certain aspects of the proposed demonstration and to authorize only those belongings or the duration of demonstration that the Department of the Interior deems appropriate under the regulations.

Given the availability of this individualized interpretative mechanism, the Lafayette Park camping regulation, although certainly less than clear when considered in isolation, escapes the twin evils of vagueness examined in Kolender. Not only may plaintiffs and other prospective demonstrators conform their prospective conduct to a standard that is specific and comprehensible, but they should be shielded by grant of a specific permit from arbitrary and discriminatory enforcement in the form of "'a standardless sweep (that) allows [Park Police], prosecutors, and juries to pursue their personal predilections." Kolender, 461 U.S, at 358 (quoting Smith, 415 U.S. at 575).

An example is the permit system implementing regulations that address demonstrations on the grounds of


the U.S. Capitol. Community for Creative Won-Violence v. Carvino, 660 F. Supp. 744 (D.D.C. 1987), approved a regulation issued by the Capitol Police Board creating a penmit system for demonstrations requiring props on Capitol grounds. Permits issued under that regulation required demonstrators to absent themselves and to remove their props from the demonstration site for some time during each twenty four hour period as evidence that they were not installing themselves on the grounds in a continuous or permanent way. So here, plaintiffs may wish to include in their permit applications, or defendants may wish to include in the permits ultimately issued, some condition relating to a period of time each week during which the demonstrators will remove themselves from Lafayette Park and a specific list of the quantity or dimension of each item in the possession of each demonstrator. Such a permit conditioned on an itemized list of possessions and a prescribed period of absence from the park could provide a crystal clear basis for determination by plaintiffs, law enforcement authorities and courts as to whether or not a particular plaintiff (or a person similarly situated) is "us[ing] park land for living accommodation purposes" and, therefore, "camping" there under the terms of 36 C.F.R. 7.96(i). Plaintiffs in the present actions may pursue definitive interpretation of the camping proscription as it relates specifically to their twenty-four hour vigil through the existing permit procedure.


The permit application's acceptance or rejection will reflect the Department of the Interior's authoritative ruling that the demonstration plaintiffs describe does or does not constitute "camping." Thus, the grant of that permit could operate as a commitment by the agency and by the Park Police that, at least during the period covered by the permit, the plaintiffs' activity, if confined within the bounds described in the application, will not constitute a "camping" violation. Refusal of a particular permit could be tested in court in a civil context, a forum much more appropriate than criminal court for adjudication of the delicate balance required by the Constitution in cases of this kind.

Until plaintiffs have applied for such a permit and the Department of Interior or its delegate have acted on such a permit, plaintiffs' constitutional challenge to the Lafayette Park regulations on vagueness grounds must fail. Accordingly, an accompanying Order dismisses both complaints, without prejudice.

(SIGNED) Louis F. Oberdorfer
DATE : September 16, 1989

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