In short, the need for effective security in the vicinity of the
White House is great, but the geographical position of the
Mansion renders it inherently insecure. Several federal agencies
have brought considerable experience and expertise to bear on the
problem of White House security; the regulations challenged here
are but one fruit of their endeavors.
[4] Considered as part of a larger effort to safeguard the
Mansion and its occupants, the sign provisions clearly represent
an appropriate means of promoting the substantial governmental
interest at stake. They are narrowly tailored to avert specific
forms of terrorism. [FN106] Thus, the size limitations are
designed to ensure that activities occurring on the sidewalk are
not obstructed from police view. The interest at
[102 A Quaker Action Group v. Hickel, 421 F.2d 1111, 1117
(D.C.Cir.1969); see also Watts v. United States, 394 U.S. 705,
707, 89 S.Ct. 1399, 1401, 22 L.Ed.2d 664 (1969) ("The Nation
undoubtedly has a valid, even an overwhelming, interest in
protecting the safety of its Chief Executive and in allowing him
to perform his duties without interference from threats of
physical violence"); White House Vigil for the ERA Comm. v.
Watt, 717 F.2d 568, 570 (D.C.Cir.1983) (" 'peculiar sensitivity
of ... the safety of the President' ").]
[103 A Quaker Action Group v. Morton, 516 F.2d 717, 729
(D.C.Cir.1975).]
[104 Id. at 725.]
[105 The twelfth story of a recently-completed office building
on 15th Street enjoys a "nearly unobstructed view" of the North
Portico of the White House. Wash. Post, 12 Sept. 1984, at C6,
col. 1. The Secret Service has reached an agreement with the
building's developer which will permit the Service to post agents
on the rooftop during special White House events and to oversee
the building's security system. Id.]
[106 There is no suggestion, of course, that appellees or
intervenors themselves would engage in activity that threatens
the White House or its occupants. So far as the record shows,
their demonstrations have always been conducted in a peaceful and
orderly fashion. We are concerned instead with persons who
harbor less beneficient intentions. See Heffron v. International
Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 652, 101
S.Ct. 2559, 2566, 69 L.Ed.2d 298 (1981) (justification for
regulation should not be measured solely with regard to
activities of persons before court).]
1534
stake is one which cannot be promoted solely through the
assignment of additional police officers to the sidewalk: no
matter how large the police presence, large signs make
observation and communication among officers more difficult. The
requirement that signs be constructed of non-rigid materials is
designed to prevent them from being used to scale the White House
fence, or turned upon police officers or other demonstrators as
weapons. The restriction on the composition of sign supports
similarly prevents their use as weapons, either in hand-to-hand
struggle or as a means of launching projectiles. The prohibition
on the leaning of signs against the White House fence ensures
that terrorists will not be able to hide explosives or other
deadly objects in the triangular area between the sign and the
fence ledge. Finally, the requirement that a demonstrator
maintain physical contact with his or her sign is another means
of ensuring that signs are not turned into weapons or used to
conceal dangerous items. [107]
[5] The measures adopted by the Park Service are clearly not the
only means by which that agency could have sought to deter
illegal activity on the sidewalk. There may even be options the
Service rejected which would have promoted its interests in a
more effective fashion. We are not at liberty, however, to
replace the agency's judgment with our own. It is sufficient
that the means selected be "narrowly tailored": that they lie
within the range of feasible options the agency was
constitutionally permitted to consider. The sign provisions
clearly satisfy this element of the time, place and manner test.
B. Center Zone Restriction
The challenged regulations provide in part that No signs or
placards shall be held, placed or set down on the center portion
of the White House sidewalk, comprising ten yards on either side
of the center point on the sidewalk; Provided, however, that
individuals may demonstrate while carrying signs on that portion
of the sidewalk if they continue to move along the sidewalk.
[108]
The asserted governmental interest in imposing additional
restrictions for demonstrations within the "center zone" is that
of preserving unimpaired the public's view of the Presidential
Mansion from Pennsylvania Avenue and Lafayette Park. [109] No
considerations of security or safety are at stake; the
governmental interest derives wholly from aesthetic concerns.
It is well established that the government's power to regulate
private affairs encompasses the power to promote aesthetic goals.
[110] While judgments based on aesthetic considerations are
inherently
[107 The district court erred when it required the government
to demonstrate a "probable danger" arising from the regulated
activity. White House Vigil for the ERA Comm. v. Clark, No.
83-1243, slip op. at 18 (D.D.C. 26 Apr. 1984) (emphasis in
original). Counsel for appellees conceded as much at oral
argument. Agencies charged with the protection of the President
must be permitted, within reason, to anticipate novel security
threats and to act to avert them. Common sense and the
experience of history recommend no less. See A Quaker Action
Group v. Morton, 362 F.Supp. 1161, 1169 (D.D.C.1973) ("No
President was ever killed in a theatre until Lincoln, in a
railway station until Garfield, in a reception line until
McKinley, or in an open car until Kennedy."), modified, 516 F.2d
717 (D.C.Cir.1975).]
[108 36 C.F.R. s 50.19(e)(9) (1983).]
[109 See 48 Fed.Reg. 28058, 28058 (1983). Tourists and
passersby are not the only beneficiaries of the center zone
restriction. To the extent the news media publishes or
broadcasts images of the White House, millions of Americans
benefit.]
[110 Berman v. Parker, 348 U.S. 26, 33, 75 S.Ct. 98, 102, 99
L.Ed. 27 (1954) ("It is within the power of the legislature to
determine that the community should be beautiful as well as
healthy, spacious as well as clean, well-balanced as well as
carefully patrolled."). The governmental regulation of aesthetics
has generated a considerable body of legal scholarship.
Representative pieces include Anderson, Architectural Controls,
12 SYRACUSE L.REV. 26 (1960); Aronovsky, Metromedia, Inc. v.
City of San Diego: Aesthetics, the First Amendment, and the
Realities of Billboard Control, 9 ECOLOGY L.Q. 295 (1981);
Bufford, Beyond the Eye of the Beholder: A New Majority of
Jurisdictions Authorize Aesthetic Regulations, 48 UMKC L.REV. 125
(1980); Costonis, Law and Aesthetics: A Critique and a
Reformulation of the Dilemmas, 80 MICH.L.REV. 355 (1982);
Crumplar, Architectural Controls: Aesthetic Regulation of the
Urban Environment, 6 URB.LAW. 622 (1974); Dukeminier, Zoning for
Aesthetic Objectives: A Reappraisal, 20 LAW & CONTEMP.PROBS. 218
(1955); Michelman, Toward a Practical Standard for Aesthetic
Regulation, 15 PRAC.LAW. 36 (1969); Rowlett, Aesthetic
Regulation Under the Police Power: The New General Welfare and
the Presumption of Constitutionality, 7 WAKE FOREST L.REV. 230
(1971); Williams, Subjectivity, Expression, and Privacy:
Problems of Aesthetic Regulation, 62 MINN.L.REV. 1 (1977);
Comment, Zoning, Aesthetics, and the First Amendment, 64
COLUM.L.REV. 81 (1964); Comment, The Reasonableness of Aesthetic
Zoning in Florida: A Look Beyond the Police Power, 10
FLA.ST.U.L.REV. 441 (1982); Note, Aesthetics and the
Constitution: Houston's Sign Ordinance, 18 HOUS.L.REV. 629
(1981); Note, Beyond the Eye of the Beholder: Aesthetics and
Objectivity, 71 MICH.L.REV. 1438 (1973); Note, Aesthetic
Nuisance: An Emerging Cause of Action, 45 N.Y.U.L.REV. 1075
(1970); Note, Architecture, Aesthetic Zoning, and the First
Amendment, 28 STAN.L.REV. 179 (1975); Note, Aesthetic Regulation
and the First Amendment, 3 VA.J.NAT.RESOURCES L. 237 (1984).]
1535
more subjective than other types of
decisions, they nonetheless reflect values of great significance
in everyday life. A decision to ban all billboards from a
residential neighborhood may be as important to the people who
live there as the assignment of additional police officers to the
area; the preservation of an historic building [111] may do
more to enhance the quality of life in a city than the
construction of a new freeway.
Recent decisions of the Supreme Court establish that aesthetic
considerations may justify otherwise reasonable time, place and
manner restrictions on speech. [112]
[111 See generally Note, Local Historic Preservation Measures
as an Alternative to Federal Preservation Efforts, 3
VA.J.NAT.RESOURCES L. 263 (1984) (recent survey of historic
preservation cases).]
[112 In Metromedia, Inc. v. City of San Diego, 453 U.S. 490,
101 S.Ct. 2882, 69 L.Ed.2d 800 (1981), the Court struck down a
municipal ordinance which imposed strict prohibitions on the
erection of outdoor billboards. All of the Justices agreed,
however, that purely aesthetic considerations may justify
restrictions on speech. 453 U.S. at 507-08, 510, 101 S.Ct. at
2892, 2893 (White, J., for the plurality); id. at 530-34, 101
S.Ct. at 2904-06 (Brennan, J., concurring in judgment); id. at
550, 551 n. 23, 552, 101 S.Ct. at 2914, 2915 n. 23, 2915
(Stevens, J., dissenting in part); id. at 559-61 (Burger, C.J.,
dissenting); id. at 570, 101 S.Ct. at 2924 (Rehnquist, J.,
dissenting). Continued]
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Case Listing --- Proposition One ---- Peace Park