White House Vigil for ERA v. Clark

746 F.2d 1518



The first group of contested regulations concern the material, size, and placement of signs on the White House sidewalk. The regulations provide that: No signs or placards shall be permitted on the White House sidewalk except those made of cardboard, posterboard or cloth having dimensions no greater than three feet in width, twenty feet in length, and one-quarter inch in thickness. No supports shall be permitted for signs or placards except those made of wood having cross-sectional dimensions no greater than three-quarter of an inch by three-quarter of an inch. Stationary signs or placards shall be no closer than three feet from the White House sidewalk fence. All signs and placards shall be attended at all times that they remain on the White House sidewalk. Signs or placards shall be considered to be attended only when they are in physical contact with a person. No signs or placards shall be tied, fastened, or otherwise attached to or leaned against the White House fence, lamp posts or other structures on the White House sidewalk. 36 C.F.R. s 50.19(e)(9) (1983).

According to the demonstators, the main problem with the "materials" provision, requiring all signs to be made of cardboard, posterboard, or cloth, is that it bans plywood signs which are more sturdy and durable and pose no security hazards. The government said that plywood signs could be used to scale the White House fence or as shields or weapons in fights, and that splinters from such signs would be dangerous in the event of an explosion.

After considering the evidence, the district court found that, given its decision to uphold the regulation limiting the thickness of all signs to one- fourth inch, The total ban on signs made of wood is unjustified. It appears clear to the court that any sign with a thickness not exceeding 1/4 inch, including one made of wood, would be of no assistance to anyone bent upon scaling the fence. As a matter of fact, it would be an impediment and utterly foolhardy for one to attempt to make use of such a sign for that purpose. Contrary testimony is incredible. The possibility that sheet explosives might be concealed in wooden signs is adequately dealt with by the thickness requirement of not more than 1/4 inch on all signs.

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.]


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.]


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.]


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.


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").]


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.]


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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