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the regulations, and modified the others, in an unpublished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).]
1522
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.]
1523
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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Case Listing --- Proposition One ---- Peace Park