White House Vigil for ERA v. Clark

746 F.2d 1518

[12. Continued. The Court reaffirmed the proposition in Members of the City Council of Los Angeles v. Taxpayers for Vincent, --- U.S. ----, 104 S.Ct. 2118, 80 L.Ed.2d 772 (1984). There it upheld a municipal ordinance prohibiting the posting of signs on public property. Justice Stevens wrote for the majority that [t]he problem addressed by this ordinance--the visual assault on the citizens of Los Angeles presented by an accumulation of signs posted on public property--constitutes a significant substantive evil within the City's power to prohibit. "[T]he city's interest in attempting to preserve [or improve] the quality of urban life is one that must be accorded high respect." 104 S.Ct. at 2130 (quoting Young v. American Mini Theatres, Inc., 427 U.S. 50, 71, 96 S.Ct. 2440, 2452, 49 L.Ed.2d 310 (1976)). Appellees attempt to distinguish Taxpayers for Vincent on the ground that it concerned the long-term display of unattended signs, rather than face-to-face communicative activity of the type involved here. It is true that Justice Stevens, in his majority opinion, used words to that effect in the course of distinguishing Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939); see Taxpayers for Vincent, 104 S.Ct. at 2131. The Court in Schneider struck down an ordinance that prohibited handbilling on the streets; it held that the municipality's aesthetic interest in avoiding litter could have been protected through an ordinance which penalized persons who actually litter. We believe, however, that the basis of Justice Stevens's discussion of Schneider is not the distinction urged by appellees, but rather the distinction explicitly adopted by the Justice in another passage of his opinion: With respect to signs posted by appellees ... it is the tangible medium of expressing the message that has the adverse impact on the appearance of the landscape. In Schneider, an anti-littering statute could have addressed the substantive evil without prohibiting expressive activity, whereas application of the prophylactic rule actually employed gratuitously infringed upon the right of an individual to communicate directly with a willing listener. Here, the substantive evil--visual blight--is not merely a possible by-product of the activity, but is created by the medium of expression itself. In contrast to Schneider, therefore, the application of ordinance in this case responds precisely to the substantive problem which legitimately concerns the City. The ordinance curtails no more speech than is necessary to accomplish its purpose. 104 S.Ct. at 2132. The visual blight in the present case is "created by the medium of expression itself"--stationary protests within the center zone, which obstruct the view of the White House and its grounds. The conduct addressed by the Park Service regulations is therefore more like that proscribed by the municipal ordinance in Taxpayers for Vincent than that proscribed by the ordinance in Schneider.]

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Because the interests at stake are inherently subjective, however, they must be "carefully scrutinized to determine if they are only a public rationalization of an impermissible purpose." [113]

We are convinced that the restriction challenged here does not mask constitutionally improper motives. Three factors are relevant to our analysis. First, the government has regulated for the benefit of the public rather than for the promotion of its own aesthetic preferences. It is the view of the White House, not from it, which is being preserved. Whatever would be our ruling in the latter case, the purpose of the regulation here is clearly proper. In order to establish the constitutionality of an aesthetic regulation of speech, the government must show that the regulation was enacted for purposes other than the effectuation of its drafters' personal tastes. Some resort must be had to societal preferences. To be sure, the preference ultimately embraced need not be that held by a majority of the populace. The government is entitled to rely on the expert judgment of artists, architects, urban planners, design consultants, historians, and other professionals; it is not limited to the prevailing style, but may embrace the innovative and the avantgarde. The aesthetic judgment it makes need not sit well with all citizens, for the debate sparked by an unconventional choice often leads to a richer and more complex appreciation of what is aesthetically pleasing. [114] In short, the government need not endorse that which is popular or prevalent, but it must always act on society's behalf rather than its own. [115]

Arbitrariness or capriciousness in the selection of aesthetic goals may indicate the presence of an impermissible motive either to enact the preferences of individual government officials or to burden unreasonably the exercise of free speech. [116] A requirement that all signs carried on the White House sidewalk be of a certain color, for example, would be suspect because it appears to serve no legitimate social interest in aesthetics. For similar reasons the center zone restriction would be suspect were it shown that the public regards the presence of stationary signs directly in front of the White House as aesthetically pleasing. This in essence is what appellees argue; they contend that for many tourists the "White House experience" includes the presence of stationary demonstrations in

[113 Metromedia, 453 U.S. at 510, 101 S.Ct. at 2894.]

[114 One notable example outside the first amendment context is the adoption of Maya Lin's design for the Vietnam Veterans' Memorial in Washington, D.C. Compare Wolfe, Art Disputes War: The Battle of the Vietnam Memorial, Wash.Post, 13 Oct. 1982, at B1, col. 4 (criticizing design), with Goldberger, Vietnam Memorial: Questions of Architecture, N.Y. Times, 7 Oct. 1982, at C25, col. 1 (praising design).]

[115 Judge Wald's opinion questions the utility of our distinction between aesthetic regulations which enact societal preferences and those which enact the preferences of individual government officials. Such a distinction, Judge Wald suggests, may run afoul of the principle that the first amendment protects unpopular minorities from the prejudices of hostile majorities. Op. at 1551. The approach we adopt today, however, is not blind to the fact that majority tastes sometimes mask disapproval of the substantive content of expressive activities. Our analysis does nothing to alter the familiar proscription of content-based restrictions. See supra pp. 1549-1550. That element of the constitutional test applies with unqualified force to government regulations which derive their ostensible legitimacy from the aesthetic preferences of popular majorities.]

[116 See Metromedia, 453 U.S. at 510, 101 S.Ct. at 2894 (one consideration is whether the aesthetic judgment is so unusual as to raise suspicions in itself).]

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the center portion of the sidewalk. This may be true, although why signs in the center zone as well as for more than a hundred yards on either side are essential for some visitors' "White House experience" has not been explained. As the public comments reveal, however, many other tourists believe that the proliferation of stationary signs within the center zone substantially detracts from their ability to view the White House and its grounds. The Park Service was therefore required to choose between two conflicting views of what is aesthetically pleasing. [117] Its decision to preserve twenty yards of the White House sidewalk was not unreasonable; the Service could conclude that most Americans share the latter aesthetic preference, and that stationary protests block more of the White House view than do mobile ones. [118] Far from being arbitrary, the Service's decision represented an exercise of informed discretion based upon what a sizable portion of society regarded as aesthetically significant.

The second factor we must consider in assessing the center zone restriction is the extent to which it burdens speech. The more restrictive an aesthetic regulation, the closer a court must look to determine if it is based on constitutionally improper motives. The center zone restriction burdens speech only in an indirect and insubstantial way. Protestors are free to engage in a wide variety of expressive activities within the center zone; they are only precluded while there from engaging in stationary protest. The center zone occupies no more than seven percent of the total length of the sidewalk; protestors may remain stationary along any portion of the remainder. Appellees contend, however, that the regulation makes it more difficult for them to attract media attention to their cause. They assert that the center zone of the sidewalk is a particularly evocative site for symbolic protest, and that stationary demonstrations there are given preferential coverage by the news media. To deny

[117 "Aesthetically pleasing" in this context refers not so much to that which is considered visually beautiful as to that which promotes or enhances the cultural identity of an area. The debate over the "White House experience" is essentially a debate over cultural identity; as such, it is more susceptible to objective resolution than a disagreement over which of two views is more "pleasant" or "beautiful." See Costonis, supra note 110. It is not at all clear why appellees and intervenors regard stationary protest within the center zone as essential to the White House experience. Surely the additional cultural significance of stationary protest over mobile protest is, at most, insignificant. The government's decision to allow only mobile protest within the zone enhances the White House experience for many (and perhaps most) tourists, while it diminishes that experience for other tourists in only an insubstantial and indirect fashion.]

[118 The concurrence-dissent contends that the center zone restriction is unnecessary to further the government's aesthetic interests; in doing so, however, the opinion seriously underestimates the degree to which stationary demonstrations within the center zone have the potential to obscure the view of the White House. While the size restrictions and the prohibition on unattended signs reduce that potential to some extent, a proliferation of hand-held signs of legal dimensions may well obscure a significant portion of the White House view. For example, the height limitation applies only to signs themselves and not to their supports; some signs may therefore be considerably higher than others. Because different signs can obscure different levels of view, the cumulative effect may be to block vision for a significant range of height above the sidewalk. Such problems are far less pronounced when demonstrators are required to remain moving within the center zone: stationary signs have the potential of blocking considerably more of the White House view than do mobile signs. Nor is it any mystery why the Park Service decided to allow non-stationary protests within the center zone, even though such protests will admittedly obscure some of the White House view. Assuming arguendo that a ban on non- stationary protests would have been constitutional, the effect of instituting such a ban would be to demarcate a "no man's land" in the middle of the sidewalk. Protestors on either side of the zone would have considerable difficulty communicating with one another, for they would be prohibited from carrying their signs across the demarcated area. The regulation the Park Service adopted represents a reasonable effort to accommodate the needs of such protestors.]

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them the opportunity to engage in such protest, they argue, is to deny them effective access to the media. We find appellees' contentions unpersuasive for two reasons. First, the government introduced into evidence several photographs which show that the Mansion can clearly be seen from non-central locations on the sidewalk. Second, and more importantly, our caselaw does not recognize a constitutional right to attract media attention to one's cause. As this court stated in Vietnam Veterans Against the War v. Morton, [119] "What the litigant's press agent seeks and what the public interest requires differ widely. Although every man is entitled to make his remonstrance, no man is entitled to make such a remonstrance that it will be carried on all three television networks." [120]

The final consideration relevant to our analysis is that the center zone restriction is not an isolated attempt to regulate the aesthetics of the White House view. If it were we might engage in a more searching inquiry to ensure that the agency has regulated for genuinely aesthetic reasons and not for the purpose of curtailing protected expression. The regulation here, however, is but one element of a continuing effort by the Park Service to preserve and enhance the view of the White House for tourists and passersby. The White House and its grounds are maintained year-round in a scrupulously manicured condition; indeed, only this summer the north facade of the Mansion underwent extensive restoration. The White House lawn is designed and maintained such that tourists on the sidewalk are afforded an excellent view of the Mansion. The fence which separates the sidewalk from the White House grounds is designed to facilitate rather than obstruct that view. It is obvious that the Park Service has promoted, in a number of ways, the ability of Americans to enjoy the beauty of the White House and its grounds. The center zone restriction is only one example of the Service's commitment to aesthetic values and their effective implementation. [121]

[6] We find no evidence that the center zone restriction was enacted for any purpose other than the preservation and enhancement of the White House view for tourists and passersby. Because the Park Service based its aesthetic judgment on societal preferences rather than the preferences of individual officials, because the regulation it adopted is not unduly restrictive of free expression, and because the regulation constitutes part of a comprehensive effort to preserve the aesthetics of the White House view, we conclude that the provision is constitutional.

C. The Parcels Restriction

The regulations provide that

[119 506 F.2d 53 (D.C.Cir.1974) (per curiam).]

[120 Id. at 58; see also Heffron v. International Soc'y for Krishna Consciousness, Inc., 452 U.S. 640, 647, 101 S.Ct. 2559, 2563, 69 L.Ed.2d 298 (1981) (first amendment does not guarantee right to communicate one's views at all times and places or in any manner that may be desired); Community for Creative Non-Violence v. Watt, 703 F.2d 586, 618-19 (D.C.Cir.1983) (en banc) (Wilkey, J., dissenting) (first amendment does not guarantee right to deliver message in the most effective manner possible, nor does it guarantee media attention), rev'd, --- U.S. ----, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984); Concerned Jewish Youth v. McGuire, 621 F.2d 471, 474 (2d Cir.1980) (first amendment does not guarantee news publicity), cert. denied, 450 U.S. 913, 101 S.Ct. 1352, 67 L.Ed.2d 337 (1981); United States v. Kiger, 297 F.Supp. 339, 343-44 (S.D.N.Y.1969) (first amendment does not protect violation of a criminal statute in order to get one's views carried in the press and on the air), aff'd per curiam, 421 F.2d 1396 (2d Cir.), cert. denied, 398 U.S. 904, 90 S.Ct. 1693, 26 L.Ed.2d 63 (1970).]

[121 The fact that the regulations permit stationary protest outside the center zone does not suggest that the center zone restriction is a regulatory aberration. The decision to set aside only the central twenty yards of the sidewalk represents a healthy compromise between the interests of those who wish to view the White House and those who wish to demonstrate on the sidewalk.]

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No parcel, container, package, bundle or other property shall be placed or stored on the White House sidewalk ... Provided, however, that such property, except structures, may be momentarily placed or set down in the immediate presence of the owner on those sidewalks. [122]

The district court found this prohibition "clearly overbroad and unreasonable." [123] It rewrote the rule to provide that "parcels or other property be in the immediate presence of the owner, where 'immediate presence' shall be defined as within 5 feet of the owner." [124] Appellees urge this court to affirm the modifications. [125] They argue that the original provision makes it more difficult for protestors such as the elderly and handicapped, or mothers with small children, to take part in prolonged demonstrations. These protestors, they contend, must have available to them such items as medical supplies and infant necessities to be able to remain on the sidewalk for any extended period of time. The government, by contrast, seeks reinstatement of the original language. [126]

We are not entirely convinced that the first amendment protects the conduct proscribed by the parcels restriction. [127] That amendment only protects activity which may be fairly characterized as speech. Courts have correctly recognized that some forms of conduct are sufficiently expressive to warrant constitutional protection, [128] but by no means all conduct which is intended by the actor to express an idea is speech. [129] Intent is but one half the calculus; [130] a court must also consider whether "in the surrounding circumstances the likelihood was great that the message would be understood by those who viewed it." [131] Those types of conduct which the Supreme Court has held are within the ambit of the first amendment--most notably, demonstrating, [132] marching, [133] picketing, [134] wearing

[122 36 C.F.R. ss 50.7(h)(2), 50.19(e)(10) (1983).]

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

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

[125 Brief of Appellees at 54. Appellees do not suggest that we invalidate the parcels restriction in its entirety; indeed, such an argument would run counter to their consistent reliance on Rule 52(a).]

[126 Brief for Appellants at 42-43.]

[127 Appellees concede that the first amendment is not directly implicated by the parcels restriction. See Brief of Appellees at 50 ("the mere carrying or setting down of parcels on the White House sidewalk may not itself be squarely within the protection of [the] First Amendment"). So, too, does the district court. See White House Vigil for the ERA Comm. v. Clark, No. 83-1243, slip op. at 26 (D.D.C. 26 Apr. 1984) ("the placing of such containers on the sidewalk near a demonstrator cannot be characterized as a first amendment activity per se").]

[128 See, e.g., Spence v. Washington, 418 U.S. 405, 409-11, 94 S.Ct. 2727, 2729-30, 41 L.Ed.2d 842 (1974) (per curiam). A number of constitutional scholars have questioned the utility of a rigid distinction between speech and conduct. See, e.g., Baker, Scope of the First Amendment Freedom of Speech, 25 U.C.L.A. L.REV. 964, 1010 (1978); Ely, Flag Desecration: A Case Study in the Roles of Categorization and Balancing in First Amendment Analysis, 88 HARV.L.REV. 1482, 1495 (1975); Henkin, The Supreme Court, 1967 Term--Foreward: On Drawing Lines, 82 HARV.L.REV. 63, 79 (1968).]

[129 United States v. O'Brien, 391 U.S. 367, 376, 88 S.Ct. 1673, 1678, 20 L.Ed.2d 672 (1968).]

[130 Moreover, the intent must be that of conveying a "particularized message." Spence v. Washington, 418 U.S. at 410-11, 94 S.Ct. at 2730.]

[131 Id. at 411, 94 S.Ct. at 2730.]

[132 See, e.g., Edwards v. South Carolina, 372 U.S. 229, 83 S.Ct. 680, 9 L.Ed.2d 697 (1963).]

[133 See, e.g., Shuttlesworth v. City of Birmingham, 394 U.S. 147, 89 S.Ct. 935, 22 L.Ed.2d 162 (1969).]

[134 See, e.g., Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940).]

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armbands, [135] leafletting, [136] and affixing a peace symbol to the American flag [137]--clearly satisfy both the subjective and objective requirements of the constitutional test. [138]

By contrast, the activity at issue here--placing parcels on the sidewalk-- appears to satisfy neither. Appellees have made no credible claim that such activity is "inten[ded] to convey a particularized message"; [139] nor have they shown that onlookers would regard their conduct as communicative. [140] Parcels are, of course, inherently less expressive than signs; while the requirement that demonstrators maintain physical contact with their signs directly implicates expressive activity, the parcels restriction does not. [141]

At most, the activity proscribed by the parcels restriction facilitates expression. [142] The first amendment protects facilitative activity only insofar as its restriction imposes burdens on expression itself. [143] Neither the Supreme Court nor the lower federal courts, however, have enunciated a test for determining how substantial a burden on expression is necessary before the first amendment is implicated. [144] While it is obvious that not just any minimal effect will do, this court is left without

[135 See, e.g., Tinker v. Des Moines Indep. Community School Dist., 393 U.S. 503, 89 S.Ct. 733, 21 L.Ed.2d 731 (1969).]

[136 See, e.g., Schneider v. State, 308 U.S. 147, 60 S.Ct. 146, 84 L.Ed. 155 (1939).]

[137 See, e.g., Spence v. Washington, 418 U.S. 405, 94 S.Ct. 2727, 41 L.Ed.2d 842 (1974) (per curiam).]

[138 In Community for Creative Non-Violence v. Watt, 703 F.2d 586 (D.C.Cir.1983) (en banc) (per curiam), rev'd, --- U.S. ----, 104 S.Ct. 3065, 82 L.Ed.2d 221 (1984), this court held that sleeping can, in certain circumstances, be "speech" within the meaning of the first amendment. The Supreme Court reversed on the grounds that the challenged regulation was a reasonable time, place and manner restriction. In doing so, the Court assumed, but did not decide, that sleeping may be expressive conduct. 104 S.Ct. at 3068-69. Because the Court was able to resolve the case on other grounds, the constitutional status of sleep remains uncertain. No matter how the issue is finally resolved, however, it is clear that the overnight sleeping at issue in CCNV lies much nearer the scope of constitutional protection than the placing of parcels on the White House sidewalk.]

[139 Spence v. Washington, 418 U.S. at 410-11, 94 S.Ct. at 2730.]

[140 Id. at 411, 94 S.Ct. at 2730. Onlookers would, of course, regard many other elements of the typical White House vigil as communicative. But the fact that demonstrating, chanting, or carrying signs is inherently expressive does not mean that the depositing of parcels on the sidewalks is as well. Because the regulations deal with segregable activities, so, too, must our analysis.]

[141 It is clear that the Park Service did not intend for the parcels restriction to apply to signs or banners. See White House Vigil for the ERA Comm. v. Watt, No. 83-1243, slip op. at 6 n. 5 (D.D.C. 19 July 1983); 48 Fed.Reg. 28058, 28059 (1983). Demonstrators may place signs on the sidewalk so long as they maintain physical contact with them. See 36 C.F.R. s 50.19(e)(9) (1983) (physical contact requirement). Our decision should not be read as holding that activity of the type engaged in here is inherently non-expressive. In other circumstances the placing of items on the ground may be considered expression; we hold only that the demonstrators here have failed to establish the expressive content of their activity. See Clark v. Community for Creative Non-Violence, 104 S.Ct. at 3069 n. 5.]

[142 Cf. id. at 3070 ("[A]lthough we have assumed for present purposes that the sleeping banned in this case would have an expressive element, it is evident that its major value to this demonstration would be facilitative.").]

[143 This is a corollary of the principle that the first amendment protects expression rather than all human activities.]

[144 Justice Marshall proposed a test in his dissenting opinion in Clark v. Community for Creative Non-Violence: "[F]acilitative conduct that is closely related to expressive activity is itself protected by First Amendment considerations." 104 S.Ct. at 3077 n. 7 (Marshall, J., dissenting) (emphasis added). Besides the fact that Justice Marshall's test was proposed in dissent and therefore carries no precedential weight, a "close relationship" standard would be too amorphous for objective application. Moreover, Justice Marshall would apparently apply the first amendment to some restrictions of facilitative activity that have no effect on expression itself; this result runs counter to the fundamental principle that expression is what is protected by the first amendment.]

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guidance for determining whether the alleged burden in this case is sufficient to trigger constitutional protection.

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