Second, the contextual inquiry does not regulate behavior by drawing bright lines and
then defining the quantum of each of the various indicia sufficient to comprise the
prohibited activity. The regulation does not, and as we have seen need not, define the
prohibited conduct precisely.
While interests furthered by the Due Process
Clause and the First Amendment favor such regulation by bright lines, we are quite
unprepared to hold that the Due Process Clause prohibits a contextual regulation.
Reading such a requirement into the Clause would likely invalidate most criminal statutes
and administrative regulations. Even in the First Amendment realm, statutes cleaving to
the exact language of Supreme Court requirements would fail such a test. Cf. Miller v.
California, 413 U.S. 15, 93 S.Ct. 2607, 37 L.Ed.2d 419 (1973); Brandenburg v. Ohio, 395
U.S. 444, 89 S.Ct. 1827, 23 L.Ed.2d 430 (1969). Such an approach would require
precision far beyond that required in the due process cases that guide our inquiry. See
supra pp. 194- 95. And it would condemn a standard that provides far more notice in this
case than that which appears to have been provided by standards scrutinized by the
Supreme Court for vagueness under the Due Process Clause. Cf., e.g., Kolender, 461
U.S. at 352, 103 S.Ct. at 1855 (striking a requirement that "credible and reliable"
identification be presented); Smith v. Goguen, 415 U.S. at 566, 94 S.Ct. at 1242 (striking
prohibition punishing one who "treats contemptuously the flag of the United States");
Letter Carriers, 413 U.S. at 548, 93 S.Ct. at 2880 (upholding regulations containing
phrases such as "actively participating in a fund-raising activity" and "[t]aking an active
part in managing [a] political campaign"); Grayned, 408 U.S. at 104, 92 S.Ct. at 2294
(upholding a statute prohibiting "the making of any noise or diversion which disturbs or
tends to disturb [interpreted as "imminent interference" with] the peace or good order of
such school session ...").
Indeed, as long as we find (as we readily do) that the Thomases had fair notice that the
regulation legitimately applied to their contemplated conduct, we are barred from
concluding that the regulation is unconstitutionally vague as applied because it provides
no bright lines to guide conduct different from the conduct before us. A line of reasoning
that would require bright lines, or that concludes that the regulation is vague as applied
here because cases less clear than the Thomases' may exist, is in its nature review of
the facial validity of the regulation. The court may in other circumstances, but not in this
case, imagine how a statute or regulation might apply in cases other than that under
review when an enactment threatens to chill expressive activities, and that review
considers the overbreadth or facial validity of the challenged enactment. See Broadrick,
413 U.S. at 613-16, 93 S.Ct. at 2916-18 (describing limits on overbreadth analysis and
on the ability to assert others' claims even in the First Amendment context, and
cautioning, 413 U.S. at 615- 16, 93 S.Ct. at 2917-18, that once the court rejects a facial
challenge, "whatever overbreadth may exist should be cured through case-by-case
analysis of the fact situations to which [the enactment's] sanctions, assertedly, may not
be applied"). CCNV has settled that issue of overbreadth and facial validity for the
camping regulation, see supra pp. 195-196, and even if we wished to reopen the issue,
we are of course powerless to do so.
Beyond the notice provided by the regulation's language, the Thomases also received
actual notification that their "continuing presence" violated the regulation. The record
reveals that, without issuing citations, officers at least three times verbally warned the
Thomases that the camping regulation prohibited their ongoing behavior (on the nights
of February 28, March 21, and March 25). Additionally, officers issued four citations to
the Thomases, each of which should have alerted the Thomases that the coincidence of
circumstances that comprised their behavior brought them within the regulation. Also, a
letter from the Park Service to another protester and that William Thomas introduced into
evidence provides some evidence of actual notice (as opposed to, as the Thomases
would have it, supporting their case). The letter, which was read into the record, states:
"However, once casual sleeping become[s] overnight sleeping or sleeping for large
portions of the night or day or is coupled with other indicia of
that conduct violates the camping regulation." (Tr. 163). This statement further defines
the nature of the contextual reasoning and clearly encompasses both William Thomas's
admitted "napping" during the ongoing vigil and the facts found by the trial court.
a permit system allows the Thomases to obtain clear notice of what falls within the
regulation, so long as they do not in practice add indicia of camping to those activities
listed in their permit application. See, e.g., Letter Carriers, 413 U.S. at 580, 93 S.Ct. at
2897 (existence of procedure for determination of lawfulness of contemplated act reduces
vagueness concerns). The existence of the actual notification--in warnings and citations,
for example--confirms our conclusion that the Thomases had fair notice that the regulation
applied to their contemplated conduct.
Apart from notice, the void for vagueness doctrine also seeks to ensure that officials do
not possess undue discretion in their enforcement of the challenged enactment. In our
view, the Thomases' case fails to raise that danger sufficiently to warrant a conclusion
that the regulation is vague as applied. They present no evidence of discriminatory
enforcement. Cf. CCNV, 468 U.S. at 295 & n. 6, 104 S.Ct. at 3069 & n. 6. And nothing
in the enforcement as against the Thomases suggests that the officials have usurped or
arbitrarily employed (otherwise) lawful authority, evils against which the Clause is
designed to guard. Rather, the officials have repeatedly made the contextual judgment
that the regulation warrants.
More importantly, nothing in the terms of the regulation implicitly confers undue discretion
upon Park Service officials. While officers on the enforcement front-lines are left with
some ordinary discretion over what falls within the enactment, see Grayned, 408 U.S. at
114, 92 S.Ct. at 2302, they nonetheless must justify their action by the terms of the
regulation. As we have discussed, see supra pp. 196-98, the concept of camping, once
defined as "use of park land for living accommodation purposes," in turn elucidated by
specific indicia of that use, describes reasonably precise boundaries of the prohibited
behavior. Those concepts, definitions, and indicia similarly contain and channel officials'
enforcement discretion for purposes of the values secured by the Due Process Clause.
CCNV implicitly confirmed this conclusion in upholding the regulation against a vagueness
challenge. See supra pp. 195-196.
Once we conclude, as we have, that the regulation provided fair notice to the Thomases
and sufficiently delimited the discretion conferred upon enforcement officers, we are left,
then, only with the puzzle of why the Thomases sought to discern the scope of the
regulation yet repeatedly ran afoul of it. Without that puzzle, this case would have
presented an easier question, and a shorter opinion. The record suggests that the
Thomases have always believed that they have not over the years engaged in camping,
in some Platonic or Eagle Scouts sense, and that they have in accord with their deeply
held religious beliefs given up all accommodations. Therefore, as counsel put it at oral
argument, the Thomases view themselves as having, in effect, no living accommodations.
Nonetheless, the regulation and its enforcement, as applied to the Thomases, fairly and
clearly told them the contrary; it therefore readily passes constitutional muster in its
application to them. The Thomases persisted in effectuating their belief, which at day's
end amounts to disagreement with the clear import of the regulation as indicated by its
language, its enforcement, its interpretation by the district court, and now our reading.
It may be unfortunate that the Thomases' deeply felt convictions have led them to
persistent behavior running afoul of the clear import of the regulation. That disagreement,
in the face of various warnings, perhaps reflects courage, conscience, or tragedy. It
does not reflect, in the regulation as it has been applied,
vagueness of constitutional dimension.
For the foregoing reasons, we reject the Thomases' challenge to the sufficiency of the
substantial evidence arrayed against them and are constrained to conclude that their
vagueness assault on the camping regulation, as applied to them, falls considerably short.
Case Listing --- Proposition One ---- Peace Park