White House Vigil for ERA v. Clark

746 F.2d 1518

The Supreme Court reversed. [86] Assuming but not deciding that sleep may be an expressive activity, [87] it noted the substantiality of the government's interest in "maintaining the parks in the heart of our capital in an attractive and intact condition." [88] It concluded that the Park Service regulation was a reasonable restriction on the time, place and manner of speech. [89] In doing so it criticized the majority of this court for second-guessing the Park Service's judgment:

We are unmoved by the Court of Appeals' view that the challenged regulation is unnecessary, and hence invalid, because there are less speech-restrictive alternatives that could have satisfied the government interest in preserving park lands. There is no gain-saying that preventing overnight sleeping will avoid a measure of actual or threatened damage to Lafayette Park and the Mall. The Court of Appeals' suggestion that the Park Service minimize the possible injury by reducing the size, duration, or frequency of demonstrations would still curtail the total allowable expression in which demonstrators could engage, whether by sleeping or otherwise, and these suggestions represent no more than a disagreement with the Park Service over how much protection the core parks require or how an acceptable level of preservation is to be attained. We do not believe, however, that either United States v. O'Brien or the time, place, and manner decisions assign to the judiciary the authority to replace the Park Service as the manager of the Nation's parks or


[86 Clark v. Community for Creative Non-Violence, 104 S.Ct. 3065.]

[87 Id. at 3068-69.]

[88 Id. at 3070.]

[89 Id. at 3069-72; see id. at 3071 ("If the Government has a legitimate interest in ensuring that the National Parks are adequately protected, which we think it has, and if the parks would be more exposed to harm without the sleeping prohibition than with it, the ban is safe from invalidation under the First Amendment as a reasonable regulation on the manner in which a demonstration may be carried out.").]


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endow the judiciary with the competence to judge how much protection of park lands is wise and how that level of conservation is to be attained. [90]

From this the concurrence-dissent concludes that Clark stands for the following proposition: "a challenger to a time, place, and manner restriction cannot win by merely conjuring up an alternative regulation that does not prohibit its conduct, regardless of the alternative regulation's effects on the expression of others." Op. at 1546 (emphasis in original). This interpretation is unnecessarily restrictive. There is nothing in Justice White's majority opinion to suggest that he intended the quoted passage to limit or qualify his analysis.

In Regan v. Time, Inc. [91] the Court considered a federal statute which made criminal the publication of photographs of United States currency in color or within a specified size range.

The Court upheld the color and size requirements as reasonable restrictions on speech. [92] In doing so Justice White and a plurality of the Court again rejected the notion that courts may arbitrarily substitute their judgment for that of legislative or administrative institutions:

Time contends that although the color restriction serves the Government's interest in preventing counterfeiting, it is nonetheless invalid because it is not narrow enough. Time asserts that the color restriction applies to an illustration of currency regardless of its capacity to deceive and is thus broader than is necessary to achieve the Government's interest in preventing counterfeiting. However, Time places too narrow a construction on the Government's interest and too heavy a burden on those enacting time, place, and manner regulations.... It is ... sufficiently evident that the color limitation serves the Government's interest in a substantial way. That the limitations may apply to some photographs that are themselves of no use to counterfeiters does not invalidate the legislation. The less-restrictive- alternative analysis invoked by Time has never been a part of the inquiry into the validity of a time, place, and manner regulation. It is enough that the color restriction substantially serves the Government's legitimate ends. [93]

Justice Stevens expressed a similar view in his concurrence: It may well be, as Time argues, that "Congress can do a much better job in preventing counterfeiting than the


[90 Id. at 3072. The concurrence-dissent relies on the brief passage in which the Court notes that proposed alternatives "would still curtail the total allowable expression in which demonstrators could engage." Id. at 3072, quoted in Op. at 1545.]

[91 104 S.Ct. 3262 (1984).]

[92 Id. at 3271-72. The Court struck down a provision which specified legitimate purposes for which photographs might be published. Id. at 3267.]

[93 Id. at 3271-72 (plurality). The concurrence-dissent's interpretation of Justice White's opinion is unjustifiably narrow. Judge Wald contends that Justice White qualified his explicit rejection of less-restrictive-alternative analysis in a footnote, in which he wrote that "[i]f Time is exempted from the color requirement, so must all others who wish to use such reproductions. While Time may consistently use negatives and plates that are of little use to counterfeiters, there is no way of ensuring that others will adhere to that practice." Id. at 3272 n. 12. From this passage Judge Wald derives the principle that "[a] time, place, and manner regulation is not unconstitutional as applied to situations that do not threaten the governmental interest at stake if that application is an unavoidable consequence of regulating other conduct that does threaten the interest at stake." Op. at 1544 (emphasis in original). According to the opinion, Regan stands for this and nothing more. What the opinion fails to mention, however, is that Justice White was merely applying in his footnote the familiar principle that "the effectiveness of [a] regulation should not be measured solely by the adverse consequences of exempting a particular plaintiff from the regulation." 104 S.Ct. at 3272 n. 12 (citing Clark, 104 S.Ct. 3065, 3070-71; Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 652-53, 101 S.Ct. 2559, 2566, 69 L.Ed.2d 298 (1981)). In short, Justice White's footnote does not limit or qualify his textual discussion because the two passages deal with completely different constitutional principles.]


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present 474 and 504," Br. for Appellee 46. The question for us, of course, is not whether Congress could have done a better job, but whether the job it did violates Time's right to free expression. It does not.... [94]

[1][2] Clark v. CCNV and Regan v. Time clarify the respective institutional roles of administrators and judges. The expertise of administrators lies in selecting policy goals and in devising techniques with which to pursue them. In the course of performing their twin roles administrators consider evidence which is predominantly factual in nature. Such inquiries, however, seldom lead to a single, determinate result. More often they suggest a number of feasible alternatives, each of which is capable of accomplishing the agency's goals within acceptable parameters of accuracy and effectiveness. Where a regulation restricts the time, place or manner of speech, however, feasibility is not enough: the regulation must also satisfy the first amendment requirement that it be "narrowly tailored." The Supreme Court's test defines a subset of regulatory options which are both feasible and constitutional; it is within this zone of constitutionality that agencies are permitted to exercise discretion in selecting regulatory initiatives. [95]

[3] The expertise of courts lies in determining whether an agency's decision is within the zone of constitutionality, not in choosing between options within that zone. [96] A court may not require that the agency adopt the "least restrictive alternative," thereby substituting its judgment for that of the regulators. [97] In short, if the regulation lies within the zone prescribed


[94 104 S.Ct. at 3296 (Stevens, J., concurring in part and dissenting in part).]

[95 Like the "zone of reasonableness" in administrative law, the zone of constitutionality is "an abstract quality represented by an area rather than a pinpoint." Montana-Dakota Utils. Co. v. Northwestern Pub. Serv. Co., 341 U.S. 246, 251, 71 S.Ct. 692, 695, 95 L.Ed. 912 (1951).]

[96 Judge Wald praises the district court for engaging in a de novo review of factors underlying the challenged regulations. Such a review she finds consistent with this court's earlier decision in A Quaker Action Group v. Morton, 516 F.2d 717 (D.C.Cir.1975); see Op. at 1542-1543. Whether Judge Wald's reading of that case is correct or not, judicial review of time, place and manner restrictions must now proceed under the framework established by the Supreme Court in Clark and Regan. See Clark, 104 S.Ct. at 3072 (time, place, and manner decisions do not assign to the judiciary the authority to replace the Park Service as the manager of the Nation's parks), quoted supra pp. 1552-1553. It is axiomatic that government regulations which restrict the exercise of free speech are subject to closer scrutiny than other types of administrative decisions, and that courts, not agencies, are the ultimate arbiters of constitutionality. It by no means follows, however, that courts are required or permitted to duplicate the extensive factual inquiries undertaken by agencies when they draft regulations. Not only is such duplication highly inefficient, it reflects a lack of judicial respect for the unique expertise of administrative agencies. The agency may as well not have engaged in exhaustive and detailed fact-finding if a court before which the agency's regulation is challenged takes it upon itself to do the same thing de novo.]

[97 We agree with Judge Wald that Clark and Regan "refine but do not revamp settled principles in first amendment law." Op. at 1542. What those decisions do is establish once and for all that least-restrictive- alternative analysis is not a part of the constitutional inquiry for determining the validity of time, place and manner restrictions. Because the Supreme Court has never considered that analysis to be an integral element of the constitutional test, see Regan, --- U.S. ----, 104 S.Ct. 3262, 3271-72, 82 L.Ed.2d 487 (plurality), Clark and Regan settle but do not revamp first amendment law. The "zone of constitutionality" analysis which we adopt today is nothing more or less than the doctrinal reverse of least-restrictive-alternative analysis. Only if one incorrectly assumes that the latter form of analysis was historically a part of the time, place and manner test can one conclude, as Judge Wald does, that our approach accords the government "greater latitude than previously to burden protected expression." Op. at 1542. Judge Wald also contends that United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702, 75 L.Ed.2d 736 (1984), sanctions the result reached by the district court in the present case. Op. at 1546. The challenged statute in Grace prohibited the "display [of] ... any flag, banner, or device designed or adapted to bring into public notice any party, organization, or movement," in the "Supreme Court Building or grounds." 40 U.S.C. s 13k (1982). The Supreme Court grounds encompassed, inter alia, the public sidewalks surrounding the Court building, see 40 U.S.C. s 13p (1982); those sidewalks are a public forum, Grace, 103 S.Ct. at 1708. Because the statutory restriction did not substantially serve the government's interests, the Court held that the statute was unconstitutional as applied to the sidewalks, id. at 1708-10, even though the statute did not specifically distinguish between the sidewalks and other parts of the Supreme Court grounds. Judge Wald's opinion equates the Court's decision in Grace to focus exclusively on public sidewalks with the district court's creation of a "five foot rule" for parcel and sign placement in the present case, concluding that "[i]f one was 'rewriting,' so was the other." Op. at 1547. This fails to appreciate, however, the crucial distinction between what the Supreme Court did in Grace and what the district court did here. The reason the Grace Court considered s 13k exclusively in the context of public sidewalks was that it could thereby avoid a needless constitutional inquiry into the status of the other parts of the Supreme Court grounds and building. There was no need to determine whether those areas were also public forums, because "the controversy presented by appellees concerned their right to use the public sidewalks." 103 S.Ct. at 1706 (emphasis added). Early in its opinion, therefore, the Court stated that it would "address only whether the proscriptions of s 13k are constitutional as applied to the public sidewalks." Id. It is beyond dispute that courts are permitted to assess the constitutionality of a statute or regulation by drawing distinctions that are not explicitly embraced within the text of the provision. What courts may not do is substitute their factual judgment for that of the politically responsible body when that institution's judgment lies within the parameters of first amendment constitutionality. The district court here did precisely that when it arbitrarily rewrote the Park Service's regulations. The difference between Grace and the district court's opinion is therefore not only great, it is of constitutional dimensions.]


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by the first amendment it is constitutional and must be affirmed as such by a court before which it is challenged.

We turn, then, to an examination of the individual regulatory measures adopted by the Park Service, bearing in mind that the expertise of several federal agencies, including that of the Secret Service, contributed to their content.

III. THE REGULATIONS

A. Sign Restrictions

The first set of regulatory provisions governs the construction, size and use of signs carried on the White House sidewalk. They prohibit persons from a. leaning or attaching signs against the fence; b. demonstrating with signs that are not "attended," with attendance defined as the maintenance of physical contact; c. holding stationary signs closer than three feet to the fence; d. holding signs not made of cardboard, posterboard or cloth; e. holding signs larger than three feet in height, twenty feet in length, and one-quarter inch in thickness; f. using sign supports not made of wood with cross-sections larger than three-quarters of an inch by three-quarters of an inch. [98]

The district court permanently enjoined the enforcement of all but two of the sign provisions. It upheld the one-quarter inch limitation on the thickness of signs; [99] it also approved the requirement that signs be "attended," but redefined "attendance" to mean "within 5 feet of the persons responsible for controlling them." [100] Appellees defend the trial court's modification; appellants urge us to reinstate the original language.

While the Park Service advanced other governmental interests as a justification for the sign provisions, [101] it is clear that the principal interest they are designed to serve is that of presidential security. This court has described the safety of the President


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

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

[100 Id.]

[101 48 Fed.Reg. 28058, 28058 (1983). Those interests include pedestrian safety and traffic and the preservation of the White House view.]


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as a "paramount interest"; [102] we have held that the protection of the White House and its occupants justifies "a greater limitation than would be applicable generally to use of public streets and parks." [103]

Just as the White House area is a "unique situs" for first amendment activity, [104] it is also a unique situs for considerations of presidential and national security. Despite the significant amount of time modern Presidents spend travelling, they and their families are in residence at the White House far more than they are away. Not only the President, but the Vice- President, the White House Chief of Staff and other high Administration officials have their offices in the Mansion. The White House is the nerve center for America's national security network, with facilities for coordinating the activities of American diplomats, intelligence agents and military personnel around the globe. Indeed, it is not surprising that the "hot line" and the Situation Room, both located within the Mansion, have become two of the most evocative symbols of national security in an increasingly dangerous age of nuclear tension.

For a structure of such obvious significance to presidential and national security, the White House is singularly exposed to potential terrorist attack. It is located in the middle of a densely populated metropolitan area. A major thoroughfare, Pennsylvania Avenue, runs alongside the White House sidewalk, while busy E Street bounds the Mansion's lawn to the south. Although airplanes are legally prohibited from flying over the White House, the presence of the National Airport flyway a mile to the west presents a latent security danger. So, too, does the construction of tall office buildings within a few blocks of the Mansion. [105]

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).]


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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).]


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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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