White House Vigil for ERA v. Clark

746 F.2d 1518

C

The parcels regulation provides that: 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. 36 C.F.R. s 50.19(e)(10) (1983). While not deciding the issue, the majority expresses doubt that "the first amendment protects the conduct proscribed by the parcels regulation." Maj. Op., text at n. 127. I believe it does.

As a general matter, carrying parcels is not, of course, "speech" within the meaning of the first amendment. However, the conduct this regulation prohibits not only arises in the immediate course of a demonstration, but according to the district court is necessary if some demonstrators are to convey their messages at all. See White House Vigil for the ERA Committee v. Clark, No. 83-1243, slip op. at 26 (D.D.C. Apr. 26, 1984). A regulation on facilitative conduct that cuts off or sharply restricts expression itself certainly burdens that expression.

I do not think we are required to ignore the fundamental proposition that it is people, with the basic needs of people, who exercise first amendment rights. Practically, old people, handicapped persons, mothers with children and children's paraphernalia, and even young and unencumbered demonstrators can demonstrate or distribute literature only for limited periods if they are not permitted to put down their possessions more than "momentarily." A demonstration is not some kind of ritualistic marathon dance, the prize dependent on how long a participant can stay on her feet and moving. In the trial below, an organizer for the White House Vigil for the ERA Committee testified that as a result of the parcel regulation, the Vigil had been forced


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to curtail the distribution of leaflets and petitions. According to the organizer, carrying literature, petitions, and clipboards on which people could sign the petitions, as well as banners, poles, and personal belongings on one's person at all times, simply proved too burdensome. See Beall Tr., R. 170 at 121-22. Since organizers were not certain how many people would attend each demonstration, see id., it became difficult to gauge how much material to bring. We evidenced similar concerns about the effect of the regulation on distribution of leaflets in our opinion directing modification of the preliminary injunction. See White House Vigil for the ERA Committee v. Watt, 717 F.2d 568, 570 (D.C.Cir.1983).

The first amendment looks to realities, not mere formalities. Justice Marshall, dissenting in Clark, said: [F]acilitative conduct that is closely related to expressive activity is itself protected by First Amendment considerations.... [T]hat linkage, itself "suffices to require a genuine effort to balance the demonstrators' interests against other concerns for which the government bears responsibility." Clark v. Community for Creative Non-Violence, --- U.S. ----, 104 S.Ct. 3065, 3077 n. 7, 82 L.Ed.2d 221 (1984) (Marshall, J., dissenting) (quoting Community for Creative Non-Violence v. Watt, 703 F.2d 586, 607 (1983) (Ginsburg, J., concurring in the judgment)). [17] The government "cannot foreclose the exercise of constitutional rights by mere labels," NAACP v. Button, 371 U.S. 415, 429, 83 S.Ct. 328, 336, 9 L.Ed.2d 405 (1963), and neither should it be able to lower the level of scrutiny of a law that directly and substantially abridges protected expression by calling it "facilitative." If the first amendment does not permit the government to impose unreasonable restrictions on leafletting, surely it cannot suppress the same expression by over-regulating conduct that "facilitates" leafletting. Otherwise, government could more easily discourage the presence of people at a demonstration than regulate the signs they carry. A demonstrator forbidden to set down a receptacle in which leaflets are carried for more than a moment may lack the endurance to leaflet at all, or to do so for any appreciable time.


[17 Bafflingly, the majority concludes that Justice Marshall would "apparently apply the first amendment to some restrictions of facilitative activity that have no effect on expression itself." Maj.Op. at n. 144. I can find nothing in his opinion to support such an inference. The Clark Court commented that the main value of sleeping in the park "would be facilitative." 104 S.Ct. at 3070. It did so, however, in the course of explaining that the kind of demonstration sleep would facilitate--prolonged demonstrations that might damage the park--was exactly the kind of demonstration the Park Service had a legitimate interest in regulating. Despite the discussion in the dissent and in the opinions in the court of appeals, the Supreme Court conspicuously declined to make any broad statement about the application of the first amendment to regulations of facilitative conduct.]

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