In other contexts, the Supreme Court has recognized that the
first amendment requires attentive concern with protecting the
conditions that are necessary for effective communication. Thus,
the amendment offers protection against undue financial burdens
on expression, see Minneapolis Star and Tribune Co. v. Minnesota
Commissioner of Revenue, 460 U.S. 575, 103 S.Ct. 1365, 75 L.Ed.2d
295 (1983) (newspaper taxation); Citizens Against Rent Control
v. Berkeley, 454 U.S. 290, 102 S.Ct. 434, 70 L.Ed.2d 492 (1981)
(contributions to political committees concerned with referendum
votes); Buckley v. Valeo, 424 U.S. 1, 96 S.Ct. 612, 46 L.Ed.2d
659 (1976) (campaign expenditures), as well as restrictions on
access to certain highly newsworthy events, see Globe Newspaper
Co. v. Superior Court for Norfolk, 457 U.S. 596, 102 S.Ct. 2613,
73 L.Ed.2d 248 (1982) (criminal trials); Richmond Newspapers,
Inc. v. Virginia, 448 U.S. 555, 100 S.Ct. 2814, 65 L.Ed.2d 973
(1980) (same), and impermissible discrimination among ideas
disseminated through public education, see Board of
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Education v. Pico, 457 U.S. 853, 102 S.Ct. 2799, 73 L.Ed.2d 435
(1982) (plurality opinion) (removal of books from school
library). See generally Richmond Newspapers, 448 U.S. at 584,
100 S.Ct. at 2831 (Brennan, J., concurring in the judgment).
These cases, while obviously not controlling here, nevertheless
suggest that the burdens of the parcel regulation should not be
too casually dismissed in this case on the ground that they do
not concern "speech." "[I]n an area so closely touching our most
precious freedoms," NAACP v. Button, 371 U.S. at 438, 83 S.Ct. at
340, the definition of what impedes freedom of expression must be
a pragmatic one. The imposition of a substantial, direct, and
immediate burden on expression should be sufficient to invoke
first amendment analysis. [18]
[18 The majority is uncertain "how substantial a burden on
expression is necessary before the first amendment is
implicated." Maj.Op., text at n. 144 (emphasis in original)
(footnote omitted). In my view, the parcels regulation imposes a
burden well beyond any reasonable threshold, and I therefore need
not decide precisely where the threshold is. Certainly a
regulation of facilitative conduct need not absolutely bar
expression in order to trigger first amendment concerns. In
evaluating time, place, and manner restrictions, courts are
traditionally called upon to weigh the substantiality of the
burden a regulation imposes on speech. I would adapt the
analysis developed in those cases in determining when the burden
a facilitative regulation imposes on speech is substantial.]
So viewed, I do not believe the parcels regulation can be
sustained. This regulation is clearly not a broad rule that, in
only a small portion of its applications, has incidental effects
on expression. Its application is limited to a public forum of
unique national significance. Although its terms literally
affect all visitors to the White House sidewalk, it will plainly
have its major impact on political demonstrators who stay on the
sidewalk for extended periods in order to demonstrate. Moreover,
it was promulgated as part of a regulating plan targeted at
expressive activities, and the burden it imposes on demonstrators
must be considered not only individually but cumulatively in
light of the other burdens that will be imposed by dint of these
regulations on expression in the same forum.
As discussed above, the impact of this regulation will be
substantial. The majority rationalizes that demonstrators can
now keep their parcels across the street in Lafayette Park, see
Maj.Op., text at n. 147, but even if this is feasible in group
demonstrations, a bar against putting down personal or
demonstration-related possessions for more than an instant at a
time still represents a substantial burden, in some cases an
impossible one, for individual demonstrators.
The government's security experts testified that explosives can
be concealed in abandoned parcels. See, e.g., Parr Tr., R. 162
at 117-19; Jones Dep., R. 193 at 62-64. The district court
acknowledged the possibility but held this danger could be
adequately dealt with by a less restrictive mandate that
individuals remain within five feet of any parcels placed on the
sidewalk. The government countered that in a large crowd law
enforcement officers might not be able to identify the owners of
parcels or even tell whether the owners were present within the
five-foot zone.
Viewing the evidence offered by government security experts
deferentially, it is still not apparent why a parcel on the
ground is more dangerous than one held in the hand, provided that
its owner is in immediate physical contact with it. Continuous
physical contact is, after all, considered sufficiently safe for
the care of signs under these regulations; it is unclear why it
would not also suffice with parcels. The majority opinion may
consider this "rewriting" the regulation, but I view it as in
accord with a "narrowly tailored" O'Brien analysis that will not
allow a regulation if it prohibits an identifiable, readily
segregated class of conduct with no demonstrated relationship to
the governmental purpose asserted. In my judgment, the parcels
requirement, as written, violates that fundamental principle. It
substantially implicates
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a type of first amendment
conduct that does not, on the evidence submitted, pose any
genuine threat to the security of the White House.
CONCLUSION
I am concerned that the majority rationale defers too much to
agency determinations and does not credit enough the district
court's time-honored function of reviewing the government's
evidence and making the primary balancing between its interests
and first amendment protections. I agree, however, that many of
these regulations meet the O'Brien "narrowly tailored" test and
should be upheld. I respectfully dissent from the decision to
uphold the materials regulation as applied to plywood signs, and
the center zone and parcels regulations, as written.
Case Listing --- Proposition One ---- Peace Park