Judge Leventhal offered a balanced appraisal of judicial
responsibility in first amendment cases. [T]his case is not a
normal review of an executive action or administrative
proceeding. When the executive or the administrative process
abridges constitutional rights, it is subject to closer scrutiny
than otherwise, and ultimately it is
1543
the court rather
than the agency that must balance the competing interests. The
question in this case is not whether some support for the
regulations may be adduced, by reference to evidence in the
record and a claim of reasonable inferences or concerns, but is
whether the regulations at issue here are "unnecessarily
restrictive for the purpose they are designed to serve." We now
have ... a judicial determination based upon factual evidence
adduced at a trial, indeed at a rather extensive and complete
trial. To this determination we owe greater deference than to
the untested administrative judgments with which we have been
previously confronted. This decision being appealed was rendered
by a district judge after consideration of both constitutional
considerations, for which a judge has special concern, and the
security considerations brought forward by the government
officials. Moreover, the district judge had the benefit of the
live testimony of the various witnesses whose assertions could be
tested and probed on cross-examination. Thus, unless we discern
clear error in the district court's findings of fact, or a
mistake in its legal approach, we have no warrant for reversal. A
Quaker Action Group v. Morton, 516 F.2d 717, 723-24
(D.C.Cir.1975) (footnote omitted) (quoting A Quaker Action Group
v. Morton, 460 F.2d 854, 860 (D.C.Cir.1971)); see also Women
Strike for Peace v. Morton, 472 F.2d 1273, 1289 (D.C.Cir.1972)
(opinion of Wright, J.). [1]
In this case, the district court conducted a trial de novo,
during which it exhaustively reviewed evidence relevant to the
constitutionality of the regulations, including evidence offered
by the governmental agencies. It was required to give the
government's witnesses the attention their expertise warranted.
But that evidence still had to undergo the judge's independent
appraisal and judgment, and his factual findings deserve our
approval unless clearly erroneous.
B
As the majority rightly notes, time, place, and manner
restrictions must be justified without regard to the content of
the message expressed; must be narrowly tailored to serve a
significant government interest; and must leave open ample
alternative channels of communication. See, e.g., Clark v.
Community for Creative Non-Violence, --- U.S. ----, 104 S.Ct.
3065, 3069, 82 L.Ed.2d 221 (1984). The crux of this case
involves the second element of the test.
United States v. O'Brien, 391 U.S. 367, 88 S.Ct. 1673, 20 L.Ed.2d
672 (1968), required that the incidental restrictions a
regulation imposes on protected expression be no broader than is
essential to the furtherance of the governmental interest at
stake. Id. at 382, 88 S.Ct. at 1681. [2] That standard has
been further broken down into two subsidiary inquiries. First,
the challenged regulation must not unnecessarily contain
provisions that entirely fail to advance the relevant
governmental interest. If a regulation prohibits an identifiable
class of expressive activity that does not pose any threat of the
evil against which the regulation is directed, the courts will
declare the
[1 See also Pullman-Standard v. Swint, 456 U.S. 273, 285-88,
102 S.Ct. 1781, 1788-89, 72 L.Ed.2d 66 (1982) (reaffirming
doctrine that factual findings, including findings on so-called
"ultimate" facts, are reviewable on appeal only under "clearly
erroneous" standard). Some constitutional questions, however,
present special problems. Cf. Bose Corp. v. Consumers Union, ---
U.S. ----, 104 S.Ct. 1949, 80 L.Ed.2d 502 (1984).]
[2 O'Brien concerned a restriction on what was arguably
symbolic speech. See 391 U.S. at 376-77, 88 S.Ct. at 1678-79.
However, the Supreme Court has held that the O'Brien standard
governs time, place, and manner restrictions as well. See Clark
v. Community for Creative Non-Violence, --- U.S. ----, 104 S.Ct.
3065, 3071 & n. 8, 82 L.Ed.2d 221 (1984); id. 104 S.Ct. at 3076
n. 6 (Marshall, J., dissenting).]
1544
regulation unconstitutional as it applies
to that class of expression. See Ely, Flag Desecration: A Case
Study in the Roles of Categorization and Balancing in First
Amendment Analysis, 88 Harv.L.Rev. 1482, 1485-90 (1975).
The second aspect of O'Brien 's "narrow tailoring" requirement
looks to see if an alternative regulation would serve the
government's interest nearly as efficiently but would be
demonstrably less intrusive on protected expression. Of course,
any regulation could be made a little less intrusive on speech,
at the cost of a little more protection for first amendment
concerns. In this case, for example, adding six inches to the
maximum permissible sign dimensions would surrender some marginal
protection for security interests for a marginal benefit to free
expression, but this sort of whittling is not what the "narrowly
tailored" requirement is about. Instead, the court must look to
see if the burden on speech is approaching an unreasonable level,
or a serious loss to speech is being imposed for a
disproportionately small governmental gain. [3]
The government here offers two purposes for its regulations: a
compelling interest involving security of the White House
occupants and the law enforcement officers and individuals on its
sidewalks, and a more limited aesthetic interest in an
unobstructed view of the White House for visitors.
Before considering the regulations in detail, however, I want to
register my disagreement with an insistent theme in the majority
opinion that the Supreme Court's recent decisions have changed
the character or the mood of appropriate judicial scrutiny for
time, place, and manner restrictions. See, e.g., Maj. Op., text
at n. 95. I believe those decisions are consistent with the
O'Brien framework outlined above.
The recent Supreme Court pronouncements in Clark v. Community for
Creative Non-Violence, --- U.S. ----, 104 S.Ct. 3065, 82 L.Ed.2d
221 (1984) and Regan v. Time, Inc., --- U.S. ----, 104 S.Ct.
3262, 82 L.Ed.2d 487 (1984), emphasize that a time, place, and
manner regulation is not unconstitutional simply because some
alternative regulation would, on the facts of the case before the
court, satisfy the government's aims equally well and yet not
restrict the expressive rights of that particular challenger.
Regan yields a corollary to that principle: 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. In other words, if a regulation cannot reasonably be
drafted so as to prohibit all the conduct the state really needs
to suppress, without marginally prohibiting some expressive
activity that is harmless, it will pass muster. It seems to me
the majority's approach to interpreting Clark and Regan blurs
these well- defined principles into a far more diffuse deference
to the government.
In Clark, demonstrators for the homeless challenged the
constitutionality of a Park Service regulation forbidding
overnight camping in the park. The Court rejected the argument
that the Park Service should be required to adopt some other
regulatory scheme to protect the parklands from overuse without
forbidding sleeping by those demonstrators, such as restricting
the size, duration, or frequency of demonstrations.
[3 The handbilling cases are the classic examples: banning the
public distribution of leaflets is an effective method of litter
control, but its high cost to free speech and the existence of
feasible alternatives, such as a prohibition on littering itself,
make the tradeoff impermissible. See, e.g., Schneider v. State,
308 U.S. 147, 161-62, 60 S.Ct. 146, 150- 51, 84 L.Ed. 155 (1939); see also Schad v. Mount Ephraim, 452 U.S. 61, 67-71 & 70 n. 8,
101 S.Ct. 2176, 2181-84 & 2183 n. 8, 68 L.Ed.2d 671 (1981)
(discussing cases). These cases are also discussed in Ely, Flag
Desecration: A Case Study in the Roles of Categorization and
Balancing in First Amendment Analysis, 88 Harv.L.Rev. 1482,
1485-90 (1975).]
1545
The Court observed that such measures "would still curtail the
total allowable expression in which demonstrators could engage,
whether by sleeping or otherwise," and concluded that "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." Id. 104
S.Ct. at 3072. The proposed alternative regulations were less
speech-restrictive on the facts presented in Clark; but viewed
more generally, they were simply another regulatory scheme that
would have allowed more expressive activity in some situations,
and less expressive activity in others.
In Regan, Time magazine challenged an anti-counterfeiting statute
prohibiting, among other things, reproducing United States
currency in color. See id. 104 S.Ct. at 3264-65 (quoting 18
U.S.C. s 474 P 6, s 504). The Court rejected Time's arguments
that the color ban was too broad because it included photographs
so distorted that they were entirely incapable of aiding
counterfeiting. Id. at 3274 & nn. 14-15.
Writing for a plurality of four, Justice White commented: 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. Id. at 3271-72 (footnote omitted). In a footnote to this
paragraph, Justice White stated 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. [4] In sustaining the color provision, Justice
White thus relied on the notion that the government could not
frame a narrower statute that adequately protected against the
evil to be prevented. [5]
It is crucial, I believe, to consider the exact context in which
Justice White wrote his rejection of least speech-restrictive
analysis in time, place, and manner restrictions. In Regan,
because no alternative was available that could have prohibited
only the speech that the government had a legitimate interest in
suppressing, the Court ruled the statute could be enforced
[4 The majority thinks that Justice White's footnote is
unrelated to his rejection of less-restrictive-alternative
analysis. See Maj.Op. at n. 93. I disagree. In the footnote,
Justice White was responding to Justice Brennan's suggestion that
"the particular negatives and plates used by Time would be of
little assistance to counterfeiters," Regan, 104 S.Ct. at 3272 n.
12 (opinion of White, J.)--an argument that was basically a
variation of the less-restrictive-alternative analysis urged by
Time. Justice White argued that exempting Time would require the
government to exempt all those who wanted to engage in similar
expression, including expression that might assist
counterfeiters. But if exempting Time and all those similarly
situated would not have impaired the governmental interest at
stake, Justice White's rationale would logically have required
invalidation of the statute, as applied to that class of
expression. For the statute would not then have "substantially
serve[d] the Government's legitimate ends," id. at 3272, no
matter how much unrelated, harmful conduct it prohibited.]
[5 Justice Stevens, who added the decisive fifth vote to uphold
the color and size provisions, argued even more emphatically that
Time's publication of highly distorted images could assist
counterfeiters. See Regan, 104 S.Ct. at 3294-96 (Stevens, J.,
concurring in the judgment in part and dissenting in part).
Since his views limit the holding of the case, Regan clearly
cannot be read to establish that a regulation that burdens
protected expression more broadly than necessary is
constitutional merely because some other part of the regulation
is genuinely addressed to a legitimate objective.]
1546
in all its applications. [6] Clark ruled that 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. Seen in that light, the
basic structure of the O'Brien test is still alive and well, and
must be applied to these regulations.
C
The majority informs us that "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,"
and that the role of courts "is to uphold regulations which are
constitutional and to strike down those which are not." Maj.
Op., text at n. 83. Based on these unexceptionable
generalizations, the majority expresses disapproval that "not
only did [the district court] uphold some restrictions and reject
others, it modified the content of individual provisions."
Maj.Op., text at n. 32; see also id. n. 97. I do not share in
that disapproval, for it seems to me the district court did
exactly what it had to, assuming that its judgment of partial
unconstitutionality was a correct one. The trial judge here
simply indicated at what point he believed a regulation strayed
over the bounds of constitutionality. In so doing he did not
"rewrite" the regulation, but only elucidated what the results of
his constitutional balancing permitted. The agency is always
free to withdraw the regulations altogether rather than amend or
apply them to conform to his views. Indeed, it can prepare new
and different ones. The trial court's judgment is a clearcut
one--that the regulation as written is or is not constitutional
or that it may be applied to some but not other situations. For
example, in United States v. Grace, 461 U.S. 171, 103 S.Ct. 1702,
75 L.Ed.2d 736 (1984), the Supreme Court considered the
constitutionality of a statute barring certain demonstrations in
the Supreme Court building or on its grounds, which included the
surrounding sidewalks. The statute did not distinguish between
the Supreme Court sidewalk and the rest of the building grounds,
but the Court had no difficulty in finding the statute
unconstitutional only as it applied to the sidewalk. See id. 103
S.Ct. at 1706, 1710. [7] Here, the district judge declared the
parcels and sign attendance regulations unconstitutional as they
applied to parcels and signs within five feet of the person
owning or controlling them, but otherwise constitutional. See
White House Vigil for the ERA Committee
[6 Regan suggests an important difference between the narrowly-
tailored requirement of O'Brien, and less-restrictive-alternative
analysis as applied to first amendment cases that do not involve
time, place, and manner restrictions. Cf. Schad v. Mount
Ephraim, 452 U.S. 61, 69 n. 7, 101 S.Ct. 2176, 2183 n. 7, 68
L.Ed.2d 671 (1981) (suggesting that lower demands apply to time,
place, and manner restrictions). Ordinarily, a law that, at the
margins, regulates some harmless protected expression may not
constitutionally be enforced against that expression, even if
this excessive scope is insignificant enough so that the law
escapes facial invalidation as overbroad. See generally New York
v. Ferber, 458 U.S. 747, 767-74, 102 S.Ct. 3348, 3360-63, 73
L.Ed.2d 1113 (1982). In the view of the Regan plurality, a time,
place, and manner restriction that unavoidably and very
marginally regulates harmless expression may be enforced against
that expression.]
[7 The challengers in Grace sought only to demonstrate on the
sidewalk, and the Court therefore had no occasion to rule on the
constitutionality of the statute as it applied to other parts of
the building and grounds. See 103 S.Ct. at 1706. However, the
Court's rationale centered on the public character of the
sidewalk and the harmlessness of the prohibited activities when
conducted there. See id. at 1708-10. Obviously, quite different
considerations would apply to enforcement of the statute against,
for example, demonstrations inside the building. Grace certainly
did not foreclose enforcement of the statute in such a case, as
it would have if courts were really empowered only "to uphold
regulations [or statutes] which are constitutional and to strike
down those which are not." Maj.Op., text at n. 83. My point is
that courts may--and traditionally do--find regulations valid as
applied to some situations and invalid as applied to others,
which is all the district court did in this case.]
1547
v. Clark, No.
83-1243 (D.D.C. Apr. 26, 1984) (order). If one was "rewriting,"
so was the other. I believe both courts were acting in
time-honored fashion to decide whether the unconstitutional
portion of a statute can be pared away without unduly disrupting
the intended regulatory plan.
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