The testimony is that the thinnest sheet explosive is itself 1/4
inch, and that a sign of that thickness regardless of its
composition has no capacity to conceal such explosives. White
House Vigil for the ERA Committee v. Clark, No. 83-1243, slip op.
at 23-24 (D.D.C. Apr. 26, 1984) (emphasis added). The district
court also found no evidence that any sign had ever been used to
scale the White House fence, and that in any event it can be--and
has been--readily scaled without the assistance of a flimsy
plywood sheet. See id. at 22-23. After a careful review of the
evidence, I cannot see any grounds for overriding the district
court's conclusion that based on weight and credibility of the
testimony, as well as undisputed historical facts, the government
made out no case that plywood signs, one-fourth inch thick, posed
a danger to the security of White House occupants. [8] The
potential use of plywood signs as weapons
[8 The Assistant Director of Protective Research for the Secret
Service testified that plywood could be used to scale the fence,
and he stated that one person had used plywood to do so. Parr
Tr., R. 162 at 53. However, later questioning by the court
suggested that the single episode in question apparently involved
a "structure," see id. at 73, and not a simple plywood sheet.
Cf. Defendant's Exhibit MMM, Joint Appendix at 264 (Secret
Service report on event referring to "structure"). The Assistant
Director stated that about sixty people had gotten over the fence
during the previous couple of years, and that no other person had
used a sign or structure. Parr, R. 162 at 87. He agreed that
the White House fence was constructed so that it was almost a
ladder. Id. at 67. The Assistant Director did testify that he
might utilize a plywood sheet in attempting to scale the fence
"[i]f I was more athletic than I am right now, your honor. But I
think I could use [the sheet]. Plywood is incredibly resilient,
and it would probbly bend before it would break, and all you
would have to do is get one handhold on the top of that fence and
be vaulted over, if you got a running jump, especially if you had
a nice ramp to it.... Well, if you went back to Pennsylvania
Avenue and ran toward this ramp effect here, it would probably
bend in the middle, and you could get a handhold and be right
over that fence." Parr Tr., R. 162 at 70-72. It was evidently
this testimony that the judge disbelieved. The plaintiffs
introduced a plywood sheet in evidence, Plaintiffs' Exhibit 133,
which the judge was able to inspect. See R. 162 at 74 (recording
receipt). The Assistant Director also told the district judge
that the Secret Service would know immediately if someone jumped
the fence even if no officer was watching, Parr Tr., R. 162 at
83, that the Secret Service is perfectly able to respond if
someone does get over the fence, id. at 84, and that a concealed
"counter-sniper" is always stationed so that he could shoot a
fence-jumper if necessary, id. A government witness testified
that plexiglass signs had caused problems in demonstrations on
the sidewalk, see Lindsey Tr., R. 162 at 163-64, but no episodes
involving plywood were described.]
1548
and the
minimization of flying debris in an explosion involve security on
the sidewalk itself. While that interest is certainly a
legitimate one, it is far from unique to the White House
sidewalk. The government's evidence on any special sidewalk
dangers of plywood signs, as opposed to those made of plexiglass,
was entirely speculative and not sufficient to overcome the
appellees' considerable testimony that cloth and cardboard signs
would not withstand prolonged use and would collapse or
disintegrate in bad weather. [9] I therefore agree with the
district court that the government's evidence failed to establish
any significant relationship between its interest in maintaining
order on the sidewalk and this part of the materials ban.
Because in this instance the regulation prohibits a discrete,
readily segregated class of expressive activity, i.e., the
display of plywood signs that present no adequately documented
danger to the interests asserted by the government, I would
uphold the trial court's ruling that the materials ban is
unconstitutional as applied to plywood signs.
On the other hand, I agree with the majority that the restriction
on size and placement of signs and on the type of sign supports
deserved to be upheld. The district court invalidated the
restriction on large signs on the ground that the Secret Service
can adequately survey crowds on
[9 The Park Service official responsible for park police
operations in the District of Columbia expressed general concern
about the use of rigid signs as weapons or shields, see Lindsey
Tr., R. 162 at 163-64, Pegula Dep., R. 195 at 15-16. The single
episode he described in which rigid signs were so used involved
plexiglass signs. See Lindsey Tr., R. 162 at 163. Appellee
Picciotto testified that cardboard or cloth signs cannot stand up
under the long hours of use her vigil on the sidewalk requires;
particularly in bad weather, such signs are difficult to control
and likely to be destroyed. See Picciotto Tr., R. 157A at 48-49;Picciotto Tr., R. 170 at 134-35, 161-62. In essence, neither side
disputes the evidence offered by the other; instead, dispute
centers on whether the clear burden on speech is offset by the
marginal increase in security on the sidewalk. In my view, it is
not. This regulation differs from, for example, the sign support
regulation in that (1) law enforcement officers testified to the
actual use of thick wooden dowels as weapons, see Lindsey Tr., R.
162 at 165-66, but did not do so as to plywood signs; (2) a
demonstrator wielding a two-by-four is a good deal more dangerous
than one with a thin plywood sheet; and (3) banners of the
maximum size allowed can be adequately supported with the
permitted wooden supports, see infra note 11, but demonstrators
for whom long-term presence on the sidewalk is a part of their
message must use plywood signs or face the constant destruction
of signs made from less permanent materials.]
1549
the sidewalk through
elevated observation posts and closed circuit television cameras. See White House Vigil for the ERA Committee v. Clark, No.
83-1243, slip op. at 21-22 (D.D.C. Apr. 26, 1984). Law
enforcement officers testified that while a few large signs might
not create a security hazard, many of them would obscure the
ability of officers patrolling on the sidewalk to observe the
activities of persons in front of the White House. See, e.g.,
Lindsey Tr., R. 162 at 164-65, 233-36. Even accepting the
district court's conclusion that demonstrators' signs would not
block perusal of the sidewalk from other vantage points, I
nonetheless believe the district court gave too little weight to
the government's legitimate interest in assuring that the
officers actually on the scene--those making immediate decisions
about crowd management, rather than those on platforms or
watching television monitors--also be aware of what is going on.
Cf. White House Vigil for the ERA Committee v. Watt, 717 F.2d
568, 572 (D.C.Cir.1983) (discussing dangers of very large signs).
This interest also implicates building security to some degree,
since the government seeks to prevent the firing of any dangerous
objects towards the White House, not merely to observe it. Those
in the best position to act immediately will often be the
sidewalk officers. Finally, this regulation does not by itself
impose an overwhelming burden on expression: a banner measuring
three feet by twenty feet is a large and very visible one by most
viewers' standards.
Sign supports are restricted to those no larger than
three-quarters of an inch by three-quarters of an inch and made
of wood. Government security experts testified that the commonly
used aluminum hollow tubular sign supports could be used to fire
projectiles or conceal explosives. See Parr Tr., R. 163 at 35-
37. This testimony was somewhat undercut by other testimony that
the smallest rocket launcher now developed is substantially
larger than the largest support authorized by the regulation.
Nonetheless, the regulation was not designed to protect against
projectile danger alone. Considering the stakes at issue, the
district court failed to adequately credit the government's
interest in preventing serious harm. The danger that hollow
supports might conceal potential weapons like blast marbles and
flares, possibly even explosives, was, according to the
testimony, a more realistic concern. [10]
In addition, concerns that large supports could be used as
weapons have prompted the District of Columbia to regulate the
size of sign supports on the public streets, and that danger must
be taken into account here as well. See Hensdill Dep., R. 145D
at 63-64. The testimony did show that the regulation would
inconvenience some demonstrators. Large banners can more easily
be displayed with stronger supports. [11] But even crediting
all of the appellees' evidence, as the district court apparently
did, I do not think that the burden this regulation imposes on
expression outweighs the dangers the regulation addresses.
The regulations also ban stationary signs within three feet of
the White House fence and attaching signs to, or leaning signs
against, the fence or other structures on
[10 See Lindsey Tr., R. 162 at 166 (recounting episode in which
demonstrators "started dropping flares out of the hollow tubing,
plus other materials that were used against [the] officers. They
lit the flares and threw them at us, along with crimped nails,
marbles, and a few other items."). Appellees argue that these
items could easily be concealed on the person of demonstrators,
but common sense suggests that hollow tubing could enable
demonstrators to carry a greater number of dangerous objects more
easily.]
[11 Plaintiffs' expert witness on flags testified that a cloth
banner of the maximum permissible size supported only by two
persons might sag in the middle, and that demonstrators might
break the supports in an effort to hold the banner aloft. See
Christianson Tr., R. 179 at 12-14, 20-22. However, the same
expert also agreed that a banner of that size, if supported in
the middle as well as at the ends, could be effectively
displayed. See id. at 8, 24.]
1550
the White
House sidewalk. The justification for these regulations is that
signs close to the fence create a triangular space bounded by the
sidewalk, the solid ledge at the base of the White House fence,
and the sign, in which explosives or contraband could be
concealed. See, e.g., Parr Tr., R. 162 at 52-53. The
government's principal expert witness on security matters
admitted that the three-foot regulation bans some conduct that
presents no threat to security, such as simply holding a sign
aloft in the zone without obscuring the area under the ledge.
[12] But the government claimed that a regulation requiring
signs to be held aloft in this area would require continuous
surveillance of each demonstrator, [13] and would likely
require frequent admonitions from police officers to enforce,
possibly precipitating confrontations between demonstrators and
police.
However, security officials testified to their preference for
regulations that do not require frequent interference with
demonstrations, see Lindsey Tr., R. 162 at 167, and a
demonstrator within three feet of the ledge who did not at one
moment obscure any area under the ledge might quickly and
entirely innocently change position or location so as to create a
visual obstacle. Cf. Parr Tr., R. 162 at 61.
The challengers alleged substantial burdens stemming from the
placement restrictions. They prevented demonstrators with signs
but not others from sitting on the ledge, whether or not the
signs are located in a way that enables anyone to conceal objects
behind them.
A regulation is valid even if it unavoidably prohibits harmless
conduct in order to cover similar but dangerous conduct. Despite
qualms, I believe that on essentially undisputed facts, the
government showed that the three-foot regulation was directed to
a substantial danger, and that a narrower regulation might well
be less effective because of difficulties with its enforcement.
For me, however, the question is a very close one.
I have less trouble with the leaning ban. Appellees urge that
police officers could look around signs, moving leaning signs to
inspect beneath them, or use mechanical devices and dogs to
"sniff" for explosives. But that answer does not seem adequate
under the O'Brien-Clark test where a substantial harm is shown.
Finally, the government supports its regulation requiring that
signs be attended at all times by arguing that unattended signs
create an opportunity for others to place explosives in or under
them. The district court's factual findings on this issue are
unclear, [14] but it recognized the substantiality of the
government's concern by upholding the regulation to the extent of
requiring that demonstrators remain within five feet of their
signs. The government objects to this compromise, pointing out
that in a crowd, police officers cannot quickly determine what
sign belongs to what individual. The district court's resolution
might work well most of the time, but serious harm could be
threatened where a large crowd on the sidewalk made it impossible
to identify a sign owner within five feet. The government is
entitled to promulgate regulations broad enough to reach all
instances in which a grave danger is threatened, even though they
incidentally affect speech. On that principle this regulation
may be sustained.
B
The center zone restriction provides:
[12 See Parr Tr., R. 162 at 61. The government's witness
characterized the three-foot limit as "arbitrary," id. at 60, but
he followed that comment by observing that "[w]e could have four
feet, we could have one foot." Any linedrawing in this area
necessarily has an arbitrary element.]
[13 The district court invalidated the three-foot restriction
at least in part based on the possibility of this less
restrictive alternative. See White House Vigil for the ERA Comm.
v. Clark, No. 83-1243, slip op. at 21, 24 (D.D.C. Apr. 26, 1984).]
[14 See White House Vigil for the ERA Comm. v. Clark, No.
83-1243, slip op. at 24 (D.D.C. April 26, 1984) (categorically
stating that "[t]he requirement that a demonstrator maintain
contact with a sign is oppressive, and has little or nothing to
do with security of any other government interest").]
1551
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 of 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. 36
C.F.R. s 50.19(e)(9) (1983).
I have no quarrel with the majority's view that aesthetic
concerns may justify some time, place, and manner restrictions on
expression. However, it is equally clear that courts must be
especially careful in scrutinizing restrictions on first
amendment expression that the government seeks to justify on
eye-pleasing grounds . Aesthetic concerns will in close cases
involving first amendments rights weigh in at a lower poundage
than, say, public safety or national security considerations.
Because of their subjective nature, aesthetic concerns are easily
manipulated, and not generally susceptible of objective proof.
The danger is not just, as the majority suggests, that government
might adopt an aesthetic rationale as a pretext for an
impermissible motive, but rather that so many forms of robust
expression are by their very nature boisterous, untidy,
unsightly, and downright unpleasant for unsympathetic viewers.
Distaste for the vigor with which a message is asserted can too
easily be cast as an aesthetic interest in compelling others to
be more moderate and decorous--and, in consequence, less
effective--in conveying their message .
If, as I agree, aesthetics are nonetheless to be recognized as
legitimate governmental objectives, we must face squarely the
implications of applying them to first amendment cases. The
government has justified its 20-yard picture window regulation by
citing the aesthetic interests of the visiting public in being
able to see and photograph the White House against a tranquil
foreground. The majority upholds this regulation in part because
the government has regulated in accordance with the public's
aesthetic views, not just its own. I am not entirely sure of the
utility of this distinction in first amendment analysis, in light
of that amendment's traditional function of protecting unpopular
minorities against majoritarian excesses. But in this case, the
government has an obvious interest of its own: its natural
ambivalence toward the existence of vociferous demonstrators at
the very gates of the White House, attracting news coverage and
often raising unwelcome complaints about administration policies.
We must therefore examine the government's asserted purpose and
the efficacy of this regulation in satisfying that purpose with
particular care.
The evidence showed that the main complaints from members of the
public involved the proliferation of large, billboard-like signs
left for extensive periods propped up against the White House
fence. Under separate portions of the regulations upheld today,
that complaint is assuaged; the maximum vertical dimension of
signs is now three feet, and signs cannot be left unattended or
leaned against the fence. [15] Photographs submitted by the
government show that the view of the White House from the street
is not seriously obscured by demonstrators with signs of these
modest dimensions. See Defendants' Exhibits AAAA(1)-(14), Joint
Appendix at 332-45. There was also evidence that demonstrators
are generally cooperative in moving out of the way if tourists
want to take unobstructed photographs. But most perplexing, the
twenty-yard zone is closed only
[15 The majority says that even signs three feet high can be
held "at different levels." Maj.Op. at n. 118. This is true, of
course, but it scarcely establishes that such signs so held will
create a visual obstruction anywhere near as formidable as that
which previously might have been possible. Actually, there is no
evidence in the record to back up the majority's concern that
large numbers of demonstrators frequently block the view in this
way. The government does not, I believe, have as much leeway in
regulating for the "worst case" scenario based on aesthetic
concerns as it is granted when security is at stake.]
1552
to stationary
demonstrators with signs, not moving demonstrators carrying the
same signs, although the latter could surely block as much of the
view as much of the time. [16] I agree with the district judge
that in the aggregate, the evidence does not come near to
demonstrating that a prohibition on stationary signs of the kind
allowed under the new regulations will add discernibly to
aesthetic enjoyment of the White House. To the extent that
ordinary visitors carrying possessions who stop within this zone
obstruct the view as much as demonstrators, the regulation moves
perilously close to selectively penalizing those who visit the
White House for the purpose of political demonstrations.
The question is whether the regulation as presently written
significantly advances the purpose claimed for it.
On the other hand, the record revealed that the regulation does
impose a real burden on demonstrators. The majority brushes away
their concerns with the declaration that there is no first
amendment right to media attention, but I do not think that is
the pertinent inquiry. When government bans stationary
demonstrators from one section of a uniquely important public
forum, it has obviously burdened their speech rights. If, as the
district court found on ample evidence, the media are most likely
to cover a demonstration in the center zone, then that fact is
relevant in determining the extent of the burden and the need for
its justification. It is not that protesters have an absolute
right to the prime spot, but that the government must have an
acceptable reason for excluding them from it or regulating the
way they protest in it, and the means it chooses to implement its
goal must be geared to achieve that end. The restriction on
stationary as opposed to moving demonstrators, on the basis of
aesthetics alone, does not, in my view, meet these requirements
of the "narrowly tailored" test.
[16 The majority observes that a total ban on sign-carrying
demonstrators in the center zone would make it difficult for
protesters to get from one side of the zone to the other. See
Maj.Op. at n. 118. This may be so, but it is largely irrelevant.]
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