White House Vigil for ERA v. Clark

746 F.2d 1518

The government appealed the district court's order, and its appeal was heard on an expedited basis. In a brief per curiam opinion this court modified the preliminary injunction to take greater account of the government's interest in presidential security. [38] It noted that review of a preliminary injunction ordinarily proceeds under the abuse-of-discretion standard, [39] but that an appellate court has greater authority to modify such an injunction where the security of the President is at stake. [40] The modifications which this court undertook to make, however, were of the same genre as those which the district court itself had

[38 White House Vigil for the ERA Comm. v. Watt, 717 F.2d 568 (D.C.Cir.1983) (per curiam).]

[39 Id. at 571; see Doran v. Salem Inn, Inc., 422 U.S. 922, 931- 32, 95 S.Ct. 2561, 2567-68, 45 L.Ed.2d 648 (1975).]

[40 White House Vigil, 717 F.2d at 572 ("[W]here the security of the President is involved, our decisions have established that we may modify a preliminary injunction in extreme circumstances even when there has been no abuse of discretion below."); see A Quaker Action Group v. Hickel, 421 F.2d 1111, 1118-19 (D.C.Cir.1969).]


made earlier. [41] An "attended" sign was now defined as one "within three feet of the person responsible for controlling it"; [42] no explanation was given for the arbitrary three-foot figure and no attempt was made to define "control." Signs could be leaned against, or placed within three feet of, the White House fence, but the district court was instructed to set a limit "as to the size, number, and spacing" of such signs. [43] Hollow metal tubes were to be permitted as sign supports, but only if their ends were "permanently secured." [44] The parcels restriction was allowed to stand, but plaintiffs were permitted to request an exemption for "a reasonable inventory of pamphlets, leaflets and similar writings." [45]

This court's modifications only applied to the preliminary injunction; they did not preclude de novo consideration of the merits. [46] On 23 August the district court modified its order to take account of this court's decision and set the case for trial on an expedited basis. [47]

At trial the court heard testimony from more than twenty witnesses. Among those who testified for the government were several Secret Service and Park Police officials with special expertise in the field of White House security. [48] Those officials testified at length as to the security rationales underlying each regulation; they emphasized the need to anticipate ingenious and unprecedented forms of terrorism.

On 26 April 1984, the district court issued the decision and order appealed from

[41 This court ordered the district court to modify its preliminary injunction in the following respects: (1) A limit shall be set as to the size, number, and spacing of signs leaned against the White House fence or ledge, or placed in a stationary position within three feet of the fence, at any one time to the extent reasonably necessary to permit surveillance of both sides of the signs by a combination of officers stationed inside and outside the White House fence; (2) Any sign or placard placed on the White House sidewalk, leaned against the White House fence, or placed upon or leaned against the ledge, shall be attended at all times by being within three feet of the person responsible for controlling it; (3) Any sign support or frame made of hollow metal tubing shall be permanently secured at both ends in a manner which will prevent the insertion of any object into the tubing or the ejection of any object from the tubing; (4) The regulations in 36 C.F.R. ss 50.19(e)(10) and 50.7(h)(2) pertaining to the placement or storage of parcels, containers, packages, bundles or other property on the White House sidewalk may be enforced. Any such enforcement shall be without distinction between demonstrators and others, and without prejudice to consideration by the District Court on remand of this Order, or in the plenary trial, of a claim for an exception to these requirements for the benefit of any plaintiff claiming a right to have on the White House sidewalk under the immediate physical control of that plaintiff a reasonable inventory of pamphlets, leaflets and similar writings for distribution there. 717 F.2d at 569-70.]

[42 Id. at 569, 572.]

[43 Id.]

[44 Id.]

[45 Id. at 569-70; see id. at 573.]

[46 Id. at 570, 573. Nor do they constitute the law of the case. See United States v. United States Smelting Refining & Mining Co., 339 U.S. 186, 198-99, 70 S.Ct. 537, 544, 94 L.Ed. 750 (1950); Lewis v. Creasey Corp., 198 Ky. 409, 413, 248 S.W. 1046, 1048 (1923).]

[47 White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 23 Aug. 1983). The district court originally set 20 September as the trial date. Id. Appellees indicated to the court that they would not be able to prepare for trial on such short notice. The court refused to grant an extension of time unless appellees agreed to the vacating of the preliminary injunction. Over intervenor NOW's objections, appellees agreed "with great reluctance" to the arrangement. Motion to Vacate Preliminary Injunction and to Reschedule Trial, reprinted in J.A. at 113- 15. The district court set 6 December as the new trial date. White House Vigil for the ERA Comm. v. Watt, No. 83-1243 (D.D.C. 2 Sept. 1983).]

[48 They included Jerry S. Parr, the Assistant Director of the Office of Protective Research, United States Secret Service; Edward P. Walsh, the Deputy Assistant Director of the same office; John B. Flinn, Chief of the Munitions Counter-measures Section, Technical Security Division of the same office; and James C. Lindsey, Deputy Chief (Operations) of the Park Police.]


here. [49] It invalidated virtually all of the restrictions on the ground that they did not advance the government's interest in security. In order to prevail, the court wrote, "the government must show at least a probable danger to the security of the President and the White House created by the plaintiffs' activities. That is to say, it must establish a nexus between the activity it would proscribe and a threat to presidential security." [50] The court found that the demonstrators' activities posed no direct threat to the safety of the President. [51] Despite the fact that "security measures should be predicated on a 'better safe than sorry' premise," [52] the court described the challenged regulations as "totally ineffective" and "demonstrably too restrictive." [53] Its analysis of individual provisions was equally conclusory. The ban on wooden signs was "unjustified," and any testimony to the contrary was "incredible." [54] The requirement that protestors maintain physical contact with their signs, and the prohibition on stationary signs within three feet of the fence, was "oppressive." [55] The government's fear that terrorists might conceal explosives or rockets inside hollow metal supports was "grossly exaggerated." [56] The center zone restriction was "not justified on any score," [57] while a flat ban on the deposit of parcels was "clearly overbroad and unreasonable." [58]

Having concluded that the regulations as originally written were in violation of the first amendment, [59] the district court proceeded to reject some provisions and to rewrite others. The government had argued that "[United States v. ] O'Brien [391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d 672 (1968) ] does not contemplate ad hoc regulatory supervision by the courts over the details of an administrative scheme, and that in fact, the Supreme Court has warned that '[t]he logic of ... elaborate less-restrictive-alternative arguments could raise insuperable barriers to the exercise of virtually all [regulatory] powers' (United States v. Martinez-Fuerte, 428 U.S. 543, 557, n. 12, 96 S.Ct. 3074, 3082, n. 12, 49 L.Ed.2d 1116 (1976)." [60] The district court rejected the applicability of Martinez-Fuerte. Because that case dealt with the fourth amendment's protection against unreasonable

[49 White House Vigil for the ERA Comm. v. Clark, No. 83-1243 (D.D.C. 26 Apr. 1984).]

[50 Id., slip op. at 18 (emphasis in original).]

[51 Id. at 20-21.]

[52 Id. at 21.]

[53 Id.]

[54 Id. at 23.]

[55 Id. at 24.]

[56 Id.]

[57 Id. at 25. The court's characterization of the center zone restriction was directly at odds with its earlier discussion of the provision. In its opinion of 19 July 1983, the court had noted that [t]he defendants have been somewhat timid in advancing aesthetic considerations to support the regulations. However, the court has no difficulty in accepting that such considerations are legitimate: visitors to the Nation's Capital are entitled to a clear view of the sights they come from such great distances to see. The court accordingly finds no objection to the special restrictions which the regulations place on the use of the central portion of the sidewalk. The court agrees with the defendants that a 20-yard restricted zone is not unreasonable given that the total length of the sidewalk exceeds 700 feet. White House Vigil for the ERA Comm. v. Watt, No. 83-1243, slip op. at 20-21 (D.D.C. 19 July 1983).]

[58 White House Vigil for the ERA Comm. v. Clark, No. 83-1243, slip op. at 26 (D.D.C. 26 Apr. 1984).]

[59 The specific first amendment right relied upon by the district court was not the free speech guarantee, but rather the right of petition and assembly. Id. at 19; see U.S. CONST. amend. I ("Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.").]

[60 Defendant's Post-Trial Brief at 66, quoted in White House Vigil for the ERA Comm. v. Clark, No. 83-1243, slip op. at 19 (D.D.C. 26 Apr. 1984).]


searches and seizures, the court concluded that it did not state the standard of judicial scrutiny to be applied in first amendment cases. As a matter of "constitutional necessity," courts should engage in a much more stringent review of governmental action when first amendment interests are at stake. [61]

The court permanently enjoined the enforcement of every provision as written except for the one-quarter inch limitation on the thickness of signs. [62] The requirement that signs be attended and the restriction on the deposit of parcels also survived, but in significantly different form from that which the agency had adopted. Signs were considered "attended" when they were within five feet of the person controlling them. [63] Parcels were permitted on the sidewalk when they were within the "immediate presence" of the owner; the same five-foot rule was to be applied in determining "immediate presence." [64]

The government appealed to this court. While the case was pending and before oral argument the Supreme Court decided two cases of major import for the reasonable restriction of free speech within public fora. [65] It is primarily responsibility on this appeal to determine what significance these and other recent Supreme Court decisions have for the regulation of demonstrations on the White House sidewalk.


Certain types of places are so vital to a healthy and robust public discourse that they are accorded special status under the first amendment. The government cannot constitutionally prohibit all expressive activities in these public fora; [66] access to them is a small but invaluable part of every American's heritage.

The public sidewalk here is one such forum. [67] Sidewalks, like streets and parks, are places whose title has "immemorially been held in trust for the use of the public." [68] As such, they occupy a privileged

[61 White House Vigil, slip op. at 19.]

[62 White House Vigil for the ERA Comm. v. Clark, No. 83-1243 (D.D.C. 26 Apr. 1984) (order).]

[63 Id.]

[64 Id.]

[65 Regan v. Time, Inc., --- U.S. ----, 104 S.Ct. 3262, 82 L.Ed.2d 487 (1984); Clark v. Community for Creative Non-Violence, --- U.S. ----, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984).]

[66 See Perry Educ. Ass'n v. Perry Local Educators' Ass'n, 460 U.S. 37, 45, 103 S.Ct. 948, 954, 74 L.Ed.2d 794 (1983). The classic statement of the public forum doctrine is found in Justice Roberts's opinion in Hague v. CIO, 307 U.S. 496, 59 S.Ct. 954, 83 L.Ed. 1423 (1939): Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens. The privilege of a citizen of the United States to use the streets and parks for communication of views on national questions may be regulated in the interest of all; it is not absolute, but relative, and must be exercised in subordination to the general comfort and convenience, and in consonance with peace and good order; but it must not, in the guise of regulation, be abridged or denied. 307 U.S. at 515-16, 59 S.Ct. at 964. While the government may not prohibit all communicative activity in a public forum, it may enforce a content-based exclusion if the regulation is necessary to serve a compelling state interest and is narrowly drawn to achieve that end. Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. at 954. The government has not attempted to impose such an exclusion in the present case.]

[67 See A Quaker Action Group v. Morton, 516 F.2d 717, 724-25 (D.C.Cir.1975); cf. United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 1708, 75 L.Ed.2d 736 (1983) (sidewalk in front of Supreme Court, like other public sidewalks, is a public forum).]

[68 Hague v. CIO, 307 U.S. at 515, 59 S.Ct. at 964; see United States v. Grace, 103 S.Ct. at 1708.]


position in the hierarchy of first amendment jurisprudence. [69]

The government is not precluded, however, from regulating expressive activities conducted on the White House sidewalk. [70] It may adopt reasonable "time, place and manner" restrictions on the exercise of free speech, so long as the restrictions are content-neutral, are narrowly tailored to serve a significant governmental interest, and leave open ample alternative channels of communication. [71]

The regulations challenged here are clearly not based "upon either the content or subject matter of speech." [72] There is nothing in the text or the history of the regulations to suggest that one group's viewpoint is to be preferred at the expense of others. They meet the test of being content- neutral. Appellees contend that the Park Service has applied the regulations in a discriminatory fashion, favoring demonstrators who espouse Administration views and disfavoring those with contrary positions, but we find the evidence for such discrimination speculative and unpersuasive. The government has offered cogent explanations for the handful of instances in which the regulations were applied unevenly; we conclude that those aberrations were the product of happenstance and unavoidable circumstances rather than of improper motives. Needless to say, no court will tolerate any attempt to discriminate among protestors on the basis of viewpoint or subject matter.

Nor do we believe that the purpose underlying the regulations was to ban speech entirely. Appellees direct our attention to a memorandum, dated 13 January 1983, from then-Secretary of the Interior James Watt to an aide, Moody Tidwell. Watt requested "a briefing on the regulations that allow demonstrations and protestors 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." [73] In March 1983 Watt received a briefing from the principal drafter of the new regulations and told him to "keep up the good work." [74]

On the circumstances existing during the relevant time here, a strong argument could have been made that a regulation banning all demonstrations on the White House sidewalk and in Lafayette Park would have been unconstitutional. [75] But the institution of a total ban is not the approach the Park Service took; indeed, it is one the Service explicitly rejected. In its preamble to the final regulations, the Service stated that "legal precedent in the District of Columbia Circuit would prevent prohibiting demonstrations altogether on the White House sidewalk." [76] More relevant now may be recent precedent in the Supreme Court, [77] but, whether currently accurate as a statement of law or not, this is but one of several indications that the Park Service dealt with constitutional values with scrupulous care.

[69 United States v. Grace, 103 S.Ct. at 1708.]

[70 Hague v. CIO, 307 U.S. at 515-16, 59 S.Ct. at 964.]

[71 See Regan v. Time, 104 S.Ct. at 3266-67; Clark v. Community for Creative Non-Violence, --- U.S. ----, 104 S.Ct. at 3069; Members of the City Council of Los Angeles v. Taxpayers for Vincent, --- U.S. ----, 104 S.Ct. 2118, 2129, 80 L.Ed.2d 772 (1984); United States v. Grace, 103 S.Ct. at 1707; Perry Educ. Ass'n, 460 U.S. at 45, 103 S.Ct. at 954; Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647-48, 101 S.Ct. 2559, 2563-64, 69 L.Ed.2d 298 (1981); United States v. O'Brien, 391 U.S. 367, 377, 88 S.Ct. 1673, 1679, 20 L.Ed.2d 672 (1968).]

[72 Consolidated Edison Co. v. Public Serv. Comm'n, 447 U.S. 530, 536, 100 S.Ct. 2326, 2332, 65 L.Ed.2d 319 (1980).]

[73 Note from James G. Watt to Moody Tidwell (13 Jan. 1983), reprinted in J.A. at 174.]

[74 Robbins Tr. at 112.]

[75 See supra note 66.]

[76 48 Fed.Reg. 28058, 28061 (1983).]

[77 See Regan v. Time, 104 S.Ct. 3262; Clark v. Community for Creative Non-Violence, 104 S.Ct. 3065; Taxpayers for Vincent, 104 S.Ct. 2118.]


The regulations also clearly satisfy the constitutional requirement that they leave open ample alternative channels of communication. Demonstrators on the sidewalk are free to engage in a rich variety of expressive activities: they may picket, march, hand out leaflets, carry signs, sing, shout, chant, perform dramatic presentations, solicit signatures for petitions, and appeal to passersby. The content of the message they espouse is theirs and theirs alone; they may express views and employ verbal formulae that would be punished as seditious libel, blasphemy or obscenity in less free societies. Although they may not engage in stationary protest within the center zone of the sidewalk, they are in no way precluded from engaging in other forms of expression there, and they may stand still on the remaining 93% of the sidewalk. Should they find the government's regulations too restrictive they may always carry their demonstration immediately across Pennsylvania Avenue to Lafayette Park. In short, the regulations leave unaffected a multitude of possibilities for meaningful protest on the sidewalk and within a few yards in adjoining areas.

The regulations also clearly serve a "substantial governmental interest." No one can deny the substantiality or the significance of America's interest in presidential security. [78] At stake is not merely the safety of one man, but also the ability of the executive branch to function in an orderly fashion and the capacity of the United States to respond to threats and crises affecting the entire free world. Nor is the interest in pedestrian safety and traffic insubstantial; the value of sidewalks as public fora would be considerably vitiated were the state unable to provide for the orderly passage of those persons who use them. [79] Finally, the government has a substantial interest in the preservation and enhancement of the human environment; aesthetics are a proper focus of governmental regulation. [80]

As in most "time, place and manner" cases, the decisive inquiry here is as to the requisite narrowness of the means employed by the government to advance its substantial interests. [81] Appellees contend that this is primarily a factual matter, and that an appellate court should refrain from overturning the decision of the trial court unless that decision is "clearly erroneous." [82] Furthermore, appellees suggest that a trial court has the power to substitute its factual judgment for that of an agency where the agency has chosen not to adopt the "least restrictive" regulatory alternative.

We reject both contentions. The issue for decision on this appeal is not factual, it

[78 See, e.g., Watts v. United States, 394 U.S. 705, 707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969); White House Vigil for the ERA Comm. v. Watt, 717 F.2d 568, 570, 572 (D.C.Cir.1983) (per curiam); A Quaker Action Group v. Morton, 516 F.2d at 729; A Quaker Action Group v. Hickel, 421 F.2d 1111, 1117 (D.C.Cir.1969).]

[79 See Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 101 S.Ct. 2559, 69 L.Ed.2d 298 (1981); Cox v. New Hampshire, 312 U.S. 569, 574, 576, 61 S.Ct. 762, 765, 85 L.Ed. 1049 (1941).]

[80 See Taxpayers for Vincent, 104 S.Ct. at 2129-30; Metromedia, Inc. v. City of San Diego, 453 U.S. 490, 507-08, 101 S.Ct. 2882, 2892, 69 L.Ed.2d 800 (1981); Berman v. Parker, 348 U.S. 26, 75 S.Ct. 98, 99 L.Ed. 27 (1954).]

[81 We feel constrained to point out an ambiguity in the Supreme Court's latest formulation of the "time, place and manner" test. In Regan v. Time, the Court recited the standard requirements of content-neutrality and alternative channels of communication, but stated only that a regulation "must 'serve a significant governmental interest.' " 104 S.Ct. at 3266- 67 (quoting Heffron, 452 U.S. at 649, 101 S.Ct. at 2565). No reference is made to the requirement that the regulation be narrowly tailored. We decline to interpret Regan and Heffron as establishing a more lenient standard than that followed by the Court in other recent cases. Had the Court meant to alter the test which it had recognized only four days earlier in Clark v. Community for Creative Non-Violence, we believe that it would have done so in a more explicit fashion.]

[82 The "clearly erroneous" standard is set forth in FED.R.CIV.P. 52(a).]


is legal: did the Park Service draft regulations that were "narrowly tailored to serve a significant governmental interest"? The agency in this case was the institution charged with the principal resolution of factual issues; the court's role was limited to determining whether the regulations which the agency adopted were within the boundaries of constitutionality prescribed by the first amendment. If they were, it is not the province of the court to "finetune" the regulations so as to institute the single regulatory option the court personally considers most desirable. Courts possess no particular expertise in the drafting of regulatory measures; [83] their role is to uphold regulations which are constitutional and to strike down those which are not.

Our analysis is informed by recent Supreme Court interpretations of the "narrowly tailored" requirement. In Clark v. Community for Creative Non- Violence [84] the Court upheld a Park Service regulation which prohibited camping in certain parks in Washington, D.C. The Service had used the regulation to deny plaintiffs' request for permission to sleep in Lafayette Park and the Mall as part of a vigil symbolizing the plight of the homeless in America. This court, sitting en banc, held by a six to five vote that application of the regulations so as to prevent sleeping in the parks would infringe the demonstrators' first amendment rights. [85]

[83 One reason for judicial lack of expertise: courts are not in a position to evaluate the feasibility of administration and enforcement of regulations, as are the agencies, who are therefore properly charged with drafting them. This is demonstrated by the impracticality of some of the "finetuning" done by the district court. See, e.g., supra note 34.]

[84 104 S.Ct. 3065 (1984).]

[85 Community for Creative Non-Violence v. Watt, 703 F.2d 586 (1983) (en banc) (per curiam).]
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