White House Vigil for ERA v. Clark

746 F.2d 1518

WHITE HOUSE VIGIL FOR the ERA COMMITTEE, et al.

Appellees,

v.

William P. CLARK, Secretary of the Interior, et al.
Appellants.

No. 84-5271.
United States Court of Appeals, District of Columbia Circuit.

Argued 25 July 1984.
Decided 26 Oct. 1984.

Government appealed from the judgment of the United States District Court for the District of Columbia, William B. Bryant, J., striking down on constitutional grounds most of regulations promulgated by National Park Service to restrict demonstrations and other activities on sidewalk directly in front of the White House. The Court of Appeals, Wilkey, Circuit Judge, held that regulations, which restricted size, construction, and placement of signs on White House sidewalk, restricted, but did not prohibit, demonstrations within "center zone" of sidewalk, and prohibited placement of parcels, except momentarily, on sidewalk, were reasonable time, place and manner restrictions as originally written.

Reversed.

Wald, Circuit Judge, concurred in part, dissented in part, and filed an opinion.

1. CONSTITUTIONAL LAW 90(3)

Where a regulation restricts time, place or manner of speech, feasibility of regulation is not enough; regulation must also satisfy First Amendment requirement that it be narrowly tailored.
U.S.C.A. Const.Amend. 1.

2. CONSTITUTIONAL LAW 38

Like "zone of reasonableness" in administrative law, zone of constitutionality is an abstract quality represented by an area rather than a pinpoint.

3. CONSTITUTIONAL LAW 90(3)

If regulation restricting time, place or manner of speech lies within zone of constitutionality prescribed by First Amendment it is constitutional and must be affirmed as such by a court before which it is challenged.
U.S.C.A. Const.Amend. 1.

4. CONSTITUTIONAL LAW 81

Agencies charged with protection of the President must be permitted, within reason, to anticipate novel security threats and to act to avert them.

5. CONSTITUTIONAL LAW 90.3

National Park Service regulations restricting size, construction and placement of signs on sidewalk in front of White House, primary purpose of which was to prevent signs from being used as weapons, as concealment for explosives, or as a means of breaching White House fence, were reasonable time, place, and manner restrictions as originally drafted.
U.S.C.A. Const.Amend. 1.

6. CONSTITUTIONAL LAW 90.1(4)

National Park Service regulations restricting, but not prohibiting, demonstrations within center portion of sidewalk in front of White House, comprising ten yards on either side of center point on sidewalk, enacted for solely aesthetic reason of preserving unimpaired public's view of the White House from street and adjoining park, were nevertheless reasonable time, place, and manner restrictions as originally drafted, since restrictions represented an exercise of informed discretion based upon what a sizable portion of society regarded as aesthetically significant, any protesters were precluded only from engaging in stationary protest in "center zone" of sidewalk, and restrictions were not an isolated attempt to regulate aesthetics of White House view.
U.S.C.A. Const.Amend. 1.

7. CONSTITUTIONAL LAW 90.1(4)

National Park Service regulation prohibiting placement of parcels, except momentarily, on sidewalk in front of White House, enacted to deal with security problem of possible concealment of explosive devices within parcels left unattended on sidewalk, was a reasonable time, place, and manner restriction as originally drafted.
U.S.C.A. Const.Amend. 1.


1519

Appeal from the United States District Court for the District of Columbia (Civil Action No. 83-01243).

John D. Bates, Asst. U.S. Atty., Washington, D.C., with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Mitchell R. Berger, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellants.

John Vanderstar, Washington, D.C., with whom Lyle Jeffrey Pash, David H. Remes, Arthur B. Spitzer, Elizabeth Symonds, Washington, D.C., and Sebastian K.D. Graber, Alexandria, Va., were on the brief, for appellees, Beall, et al.

Lena S. Zezulin, Washington, D.C., with whom Thomas J. Hart, Washington, D.C., was on the brief, for appellee, Nat. Organization for Women.

Before WILKEY, WALD and STARR, Circuit Judges.

Opinion for the Court filed by Circuit Judge WILKEY.

Opinion concurring in the judgment in part and dissenting in part filed by Circuit Judge WALD.

WILKEY, Circuit Judge:

This appeal concerns the constitutional validity of regulations promulgated by the


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National Park Service to restrict demonstrations and other activities on the sidewalk directly in front of the White House. The district court struck down most of the regulations, and modified the others, in an unpublished opinion of 26 April 1984. On appeal the plaintiff-appellees and intervenors contend that the district court's findings are not "clearly erroneous," and that this court should defer to those findings in what is essentially a factual dispute. The government, as defendant-appellant, urges reinstatement of the original regulations. It defends the regulations as reasonable time, place and manner restrictions which further substantial governmental interests, most notably the security of the President and the aesthetics of the White House view. We agree with the latter position and uphold the regulations as originally written.

The restrictions embodied in the regulations are of three types. The first set governs the size, construction, and placement of signs on the White House sidewalk. The primary purpose of the sign restrictions is to prevent signs from being used as weapons, as concealment for explosives, or as a means of breaching the White House fence. In light of recent Supreme Court cases which clarify the role of judicial review in the first amendment context, we conclude that the sign restrictions are reasonable as originally drafted. A second type of regulation restricts, but does not prohibit, demonstrations within the "center zone" of the sidewalk. We conclude that this restriction, too, is constitutional as a reasonable means of regulating the place of demonstrations. The government's interest in preserving a relatively unobstructed view of the White House for tourists and passersby constitutes a legitimate aesthetic goal which is not outweighed by the insubstantial infringement on the demonstrators' ability to engage in expressive activities. Moreover, while unrestricted access to the center zone might provide demonstrators with optimal media exposure, appellees have no first amendment right to such exposure. The third type of regulation prohibits the placing of parcels, except momentarily, on the sidewalk. Such activity has no expressive content; at most, it may be said to facilitate expression. It is unclear whether the facilitative activity proscribed here implicates the first amendment. Even if it does, however, the parcels restriction is constitutional as a reasonable restriction on the manner in which speech may be exercised: it is narrowly tailored to prevent the concealment of explosive devices within parcels left unattended on the sidewalk.

I. BACKGROUND

In late 1982 representatives of the National Park Service, the Park Police, the Secret Service and the Department of Justice met to consider ways of protecting the White House and its occupants from terrorist attack. [1] The need for increased presidential security had been tragically illustrated by the events of 8 December 1982, when Norman Mayer, a regular protestor on the White House sidewalk, was killed by police officers after threatening to blow up the Washington Monument. [2] While the agencies reviewed existing regulations and drafted new ones, [3] terrorist activity continued at an alarming rate both at home [4] and abroad. [5]


[1 Robbins Tr. at 6-8, 12.]

[2 See 48 Fed.Reg. 28058, 28058 (1983); N.Y. Times, 9 Dec. 1982, at A1, col. 1.]

[3 The agencies initially considered a non-regulatory approach, Parr Tr. at 17, 20-22; J.A. 210-11, but rejected it because it did not adequately address security concerns, id.; Robbins Tr. at 18-22, 69-70.]

[4 See 48 Fed.Reg. at 28058. On 23 April 1983, a ground-floor office in the Department of Justice building was firebombed. N.Y. Times, 25 Apr. 1983, at A1, col. 2. Three days later, a bomb concealed in a flowerpot exploded on the front steps of the National War College at Fort McNair. Id., 27 Apr. 1983, at A18, col. 4. On 18 October 1983, security officers at the Capitol apprehended a visitor to the House gallery who had concealed a homemade bomb under his shirt. Id., 2 Nov. 1983, at A22, col. 1.
Less than a month later, a terrorist bomb exploded on the Senate side of the Capitol. Id., 8 Nov. 1983, at A1, col. 3. The recent terrorist incidents have sparked increased concern for the protection of federal buildings in Washington. Extensive security measures have been instituted at the Capitol in response to the November 1983 bombing. See N.Y. Times, 21 Jan. 1984, at 19, col. 1 (bulletproof steel plates installed in Members' chairs on House floor); Wash. Post, 6 Jan. 1984, at A4, col. 1 (concrete barriers and new metal detectors); N.Y. Times, 9 Nov. 1983, at A1, col. 4 (new security regulations). Officials have taken similar steps to secure the State Department building, id., 18 Dec. 1983, s IV, at 1, col. 1 (concrete barriers), and the Pentagon, id., 21 July 1984, at 19, col. 2 (metal detectors); id., 17 Dec. 1983, at 9, col. 1 (closing of traffic tunnels under Pentagon). The regulations challenged here are but one of a number of security measures recently taken to protect the White House and its occupants. Visitors who wish to tour the Mansion must now pass through a "garden pavillion," where they are checked for guns and other weapons. Id., 18 Mar. 1983, at A15, col. 2; see also id., 17 Mar. 1984, at 12, col. 5 (new security measures for visitors and press). Workers have erected concrete barriers along the White House sidewalk to prevent "truck bombings" of the type that destroyed American installations in Lebanon. Id., 4 Jan. 1984, at B6, col. 2; id., 22 Dec. 1983, at A12, col. 1; id., 4 Dec. 1983, s I, at 31, col. 1.]

[5 See 48 Fed.Reg. at 28058.]


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The National Park Service published interim regulations on 22 April 1983; [6] they were to become effective immediately. [7] The regulations required that signs and placards displayed on the White House sidewalk [8] be hand-held by individuals. [9] In addition, they prohibited the deposit of parcels on the sidewalk for longer than one hour and provided that parcels placed on the sidewalk were subject to inspection by police officers. [10]

On 27 April officers of the United States Park Police arrested three long-time protestors on the White House sidewalk [11] for failing to comply with the interim regulations. Those arrested, along with other regular White House demonstrators, filed suit in U.S. District Court two days later seeking declaratory and injunctive relief on the ground that the regulations infringed their first amendment rights of free expression. [12] Following an evidentiary hearing on plaintiffs' motion for a temporary restraining order, Judge William B. Bryant concluded that the Park Service had failed to show "good cause" for dispensing with the notice and comment requirements of the Administrative Procedure Act [13] when it issued the interim regulations. [14] He enjoined enforcement of the regulations pending publication of a final rule. [15]

The Park Service complied immediately. It republished the regulations as a proposed rulemaking on 17 May 1983, with a public comment period extending to 31 May. [16] The Service received fifteen comments, seven of which supported the regulations as proposed and eight of which opposed some portion of them. [17] The Service studied the comments, modified its interim regulations and published a "final rule" on


[6 48 Fed.Reg. 17352 (1983).]

[7 Id. at 17352. The interim regulations provided for public comment until 23 May 1983. Id.]

[8 The White House sidewalk is defined as "the south sidewalk of Pennsylvania Avenue, N.W., between East and West Executive Avenues, NW." 36 C.F.R. s 50.19(a)(5) (1983).]

[9 48 Fed.Reg. 17352 (1983).]

[10 Id.]

[11 The three were Edward Saffron, Conception Picciotto, and Robert Dorrough.]

[12 Complaint for Declaratory Judgment and Injunctive Relief, reprinted in J.A. at 16-25. The National Organization for Women later intervened. White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 27 July 1983).]

[13 5 U.S.C. s 553(b)(B) (1982). See generally Jordan, The Administrative Procedure Act's "Good Cause" Exemption, 36 AD.L.REV. 113 (1984) (surveying cases).]

[14 White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 3 May 1983).]

[15 Id. Judge Bryant later extended the injunction to 23 May 1983. White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 10 May 1983).]

[16 48 Fed.Reg. 22284 (1983) (proposed 17 May 1983).]

[17 48 Fed.Reg. 28058, 28059 (1983).]


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17 June 1983. [18] The plaintiffs amended their complaint seven days later to take account of the new provisions. [19]

The regulations impose three types of restrictions on activities conducted on the White House sidewalk. The first set of provisions governs the construction, size and placement of signs carried by demonstrators and other individuals. Signs must be constructed of cardboard, posterboard or cloth, while sign supports must be made of wood. [20] Signs can be no larger than three feet in height, [21] twenty feet in length, and one-quarter inch in thickness, while sign supports must have cross-sectional dimensions of no greater than three-quarters of an inch. [22] All signs on the sidewalk must be "attended," a requirement which is met only if the sign is in physical contact with a person. [23] Stationary signs may be no closer than three feet to the White House fence, [24] and no sign may be leaned against or attached to the fence or other structure on the sidewalk. [25]

A second type of restriction concerns the "center zone," an area defined as the central twenty yards of the sidewalk.[26] Within the center zone, signs may not be held, placed or set down, but "individuals may demonstrate while carrying signs ... if they continue to move along the sidewalk." [27]

The third type of restriction prohibits the deposit of parcels and other property on the ground. An exception is made for items which are "momentarily placed or set down in the immediate presence of the owner." [28]

The Park Service prefaced its final regulations with a concise explanation of the governmental interests they were designed to serve. Those interests were threefold: "to minimize potential threats to the [White House] and its occupants and visitors ... to provide opportunities to the visitor to view the White House, and to maintain the free flow of pedestrian and emergency traffic." [29] The Service described in detail the manner in which its regulations were designed to accomplish those ends; in doing so, it relied on its own experience as


[18 48 Fed.Reg. 28058 (1983). The regulations are codified at 36 C.F.R. ss 50.7(h)(2), 50.19(e)(9)-(10) (1983). In its preamble to the regulations, the Park Service stated that "[t]he need to address immediate security concerns in the White House area" constituted "good cause" for dispensing with the thirty-day delay period normally required before a new rule can become effective. 48 Fed.Reg. at 28058-59; see 5 U.S.C. s 553(d)(3) (1982) (good cause exception to thirty day delay requirement). The Park Service set 5 July as the date on which the regulations would become effective. Upon challenge by the plaintiffs, the district court held that the government had failed to substantiate its determination that good cause existed. White House Vigil for the ERA Comm. v. Watt, No. 83- 1243 (D.D.C. 1 July 1983). In two successive temporary restraining orders, the court enjoined enforcement of the regulations until 17 July. Id.; White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 8 July 1983).]

[19 Amended Complaint for Declaratory Judgment and Injunctive Relief, reprinted in J.A. at 31-38.]

[20 36 C.F.R. s 50.19(e)(9) (1983).]

[21 The regulation uses the term "width," id., but it is obvious that the reference is to the vertical dimension.]

[22 Id.]

[23 Id.]

[24 Id. The three foot mark is readily identifiable because the pavement joints in the sidewalk occur every one and one-half feet from the fence. 48 Fed.Reg. at 28061. The second joint, therefore, marks the line established by the regulation.]

[25 36 C.F.R. s 50.19(e)(9) (1983).]

[26 Id. ("ten yards on either side of the center point"). Unlike the three foot zone, see supra note 24, the center zone does not appear to be demarcated by actual landmarks on the sidewalk.]

[27 36 C.F.R. s 50.19(e)(9) (1983). In short, the regulations prohibit stationary, but not moving, protest within the center zone.]

[28 36 C.F.R. ss 50.7(h)(2), 50.19(e)(10) (1983). Sections 50.7(h)(2) and 50.19(e)(10) are substantively identical.]

[29 48 Fed.Reg. at 28058.]


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well as that of other federal agencies charged with the protection of the White House and its grounds. The Park Service discussed at length the objections which various commentators had registered to the interim regulations, and it noted modifications which it had made in the regulations to take account of criticisms it found valid.

Following an evidentiary hearing the district court entered a preliminary injunction against enforcement of many of the restrictions on 19 July 1983. [30] In the court's view, "the governmental interests served by the regulations could be attained through alternative means which are less intrusive on first amendment freedoms." [31] The court proceeded to "finetune" the regulations: not only did it uphold some restrictions and reject others, it modified the content of individual provisions by substituting its factual judgment for that of the agency. The court approved the twenty foot limit on the length of signs, but created a special exception for those held parallel to the fence. [32] It endorsed the concept of restricting sign and parcel placement, but held that the "physical contact" requirement for signs and the prohibition on parcel placement were unnecessarily restrictive. [33] In their place, the court fashioned a rule which allowed signs and parcels to be placed on the sidewalk if they were "attended at all times," with "attendance" defined to mean "in the immediate presence of the owner." [34] The court approved without modification only three provisions: the restriction on sign materials, [35] the center zone restriction, [36] and the absolute prohibition on the placement of structures on the sidewalk. [37]


[30 White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 19 July 1983) (order).]

[31 White House Vigil for the ERA Comm. v. Watt, No. 83-1243, slip op. at 14 (D.D.C. 19 July 1983).]

[32 Id. at 20.]

[33 Id. at 17-18.]

[34 Id. The regulation bars the placement of parcels on the sidewalk except "momentarily ... in the immediate presence of the owner." 36 C.F.R. ss 50.7(h)(2), 50.19(e)(10) (1983). The substantive effect of the district court's order was to delete the word "momentarily" from the regulation. As a practical matter this is a change of significance. Guards can at once spot a package on the sidewalk. If it is not immediately picked up by its purported owner, under the original regulation the guards can move to seize it. Under the district court's modification, the guards have no right to inspect or seize a parcel on the sidewalk; ten minutes after depositing it, the "owner" may be impossible to identify among the shifting crowds on the sidewalk.
In a worst case scenario, the "owner" may be some distance away, running for his life. This is but one of many possible examples of why security experts are experts and judges are not.]

[35 White House Vigil for the ERA Comm. v. Watt, No. 83-1243, slip op. at 16 (D.D.C. 19 July 1983).]

[36 Id. at 20-21.]

[37 White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 19 July 1983) (order). The prohibition of structures is a part of the parcels restriction.]
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