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.]
1525
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).]
1526
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.
II. THE LEGAL STANDARD
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.]
1527
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.]
1528
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).]
1529
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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Case Listing --- Proposition One ---- Peace Park