1440 N St. N.W. #410
Washington, D.C. 20005
December 3, 1990
Director, National Park Service, Capitol Region
1100 Ohio Drive, S.W., Washington, D.C.
Dear Mr. Stanton:
Regrettably I find it necessary to address RIN 1024-AO90, Federal Resister, Vol. 55 No. 183, October 4, 1990, pgs. 40879-81 -- an Interior Department suggestion to amend National Park Service regulations purportedly to govern storage of property in Lafayette Park.
Although it is specifically asserted that "(t)his proposed rule is also not intended to interfere with demonstrators' ability to distribute literature, march, speak, hold vigils, or otherwise exercise first amendment rights," those are precisely the effects that such a rule would have upon me.
Unfortunately, personal experience and documentary evidence lead me to believe that the motives and aims of this regulatory suggestion are less than honorable or just. Your predecessor, Jack Fish, and I were together in court - on opposite sides - far more often than I -- of the opinion that there are immensely better things to do with one's time -- liked. Hopefully this letter may convince you that this proposed rule is totally unjustifiable, and we can avoid the possibility that you and I will be placed in a position of wasting our energy and that of the judicial system.
Thus far, it would appear that courts in this district have been reluctant to scrutinize the motives and intents behind rulemakings related to Lafayette Park. See Enclosure 1, Thomas, et. al. v. United States, et. al., unfired draft Petition for Writ of Certiorari, and Appendix thereto, case reported at 699 F. Supp. 702 (1988) and 681 F. Supp. 55 (1988), see also Enclosure 2, Huddle, et. al. v. Reagan, et. al., USDC CA No. 88-3130, J. Joyce Hens Green (pending).
Is this NPS rulemaking intended to interfere with the exercise of first amendment rights? What impetus guided the artistic pen of Richard G. Robbins, your regulatory craftsman? What will be the effect on individual freedom of thought and expression if the alleged regulatory weapons crafted under Mssrs. Fish and Robbins (see Enclosure 3) are extended as proposed, and applied against peaceful demonstrators by Park Police force? See Enclosure 2, Vol. 5, Exhibits 133(a)-(c). These questions must not be overlooked.
The first amendment to the Constitution provides:
"Congress shall make no law respecting the establishment of religion, the free exercise thereof, freedom of speech, freedom of the press, or the right of the people peaceably to assemble and petition the government for redress of grievances."
Since June 3, 1981 I have been attempting to maintain a continuous presence ("vigil") in Lafayette Park. Symbolically, I exist without "living accommodations" to illustrate my religious conviction that "sin is to value one's own pleasure and comfort above the life of another." E.g. Thomas v. United States, 696 F. Supp. at 713. Because Jesus the Christ said, "(b)lessed are the peacemakers for they shall be called the children of God" (Matthew 5: 3-9), I see my vigil as embodying my own feeble attempts to serve a Creator of peace, love and justice.
To my mind there is a distinct line between the (objective) Truth and my and others' (subjective) beliefs. My personal goal is to achieve a more perfect understanding of "actual reality" (i.e. "Truth"). See, United States v. Thomas and Thomas, 864 F.2d 188, 192. Significantly, I believe, there is wide but shallow public support for the subjective notion of "Peace through Strength" which is, in practice, "peace" through force and violence (i.e. "War").
Following the biblical premise that by reasoning together our scarlet sins may be washed as white as snow (see Isaiah 1: 19) -the most effective method I have discovered for measuring my subjective "reality" against "actual reality" is the process of publicly expressing my beliefs and listening with an open mind to the responses and beliefs of others. I call this "Peace through Reason," which is, in practice, peace through understanding, and in direct opposition to the philosophy of "Peace through Strength." This philosophical opposition, I submit, is precisely the type of situation most readily and civilly subject to resolution in the public marketplace of ideas. Although Peace through Reason may presently be playing second fiddle to Peace through Strength in the public mind, unless freedom of expression is allowed to be strangled by needless regulations the idea could conceivably win the hearts and minds of the American public.
For example, very early one morning during the summer of 1981 I was in front of the White House when several students from a local university began to taunt me for laying on the sidewalk. We entered into a lengthy conversation. Finally, I expressed my belief that the students' stated career goals might not be as altruistic as they were being portrayed. The students became angry and left, cursing me. A number of months later one of those students, Joe Tanzi, returned to the sidewalk and reminded me of our first encounter. I remembered the incident. "I've thought about some of the things you said," Joe told me. "I can't say that I agree with everything, but a lot of it made sense. I wanted to try to get a better understanding, so I came back to talk some more." That was the beginning of a productive, reasonable relationship -- which, I believe, contributed in some small degree to peace on earth and the establishment of God's kingdom -- and continued for several years until Mr. Tanzi graduated and left town.
I believe my experience with Joe Tanzi illustrates that openness and a continuous presence in a public place can provide a practical vehicle for transforming hostility to understanding. It seems self-evident that the transformation of hostility to understanding is "peacemaking."
To think, as the proposed rule suggests, that limiting a demonstrator to three cubic feet of property would "not interfere with a demonstrator's ability to ... hold vigils" is absurd. Merely the bare essential items necessary to protect a person from the elements and provide liquid and nutritional sustenance, routinely permitted by the NPS, would exceed three cubic feet. See, e.g., Thomas v. United States, 696 F. Supp. at 713, attached hereto at Enclosure 1, Vol. 2, pg. 18.
But this is only the beginning of the inquiry into a proposal which also claims not to interfere with the ability to distribute literature, march, or speak.
I think it is plain that if one cannot have sufficient articles both to protect oneself from the elements and to stave off starvation, then one will either have one's ability to march and speak interfered with, or one will die. If one dies, of course, one will no longer be able to march or speak.
But even if one could survive a continuous presence on a sidewalk and keep marching and speaking with only three cubic feet of articles, under this proposed rule that would leave zero cubic feet for literature. To my way of thinking this would be a severe interference with the ability to distribute literature which could only harm the interests of any democratic society.
Owing to the extremely broad sweep of actual reality, there are many subjects which need to be covered by any aspiring peacemaker. Therefore the distribution of literature has been integral to my first amendment exercise in Lafayette Park. Additionally, given the possibility that Peace through Reason might easily become more popular, my reliance on literature could increase.
In a world of my choosing, I might feel I could limit literature distribution to personal writings. See, e.g., Enclosure 4, Life, Liberty, and the Hot Pursuit; Enclosure 5, Thomas' Essays; Enclosure 6, Peace Park: the Play. Sufficient quantities of these materials might be contained within three cubic feet, unless these views became moderately popular -- not an unlikely scenario in a world as fickle as I perceive this one to be.
But we are not living in a world of my choosing. Consequently I must address my perceptions that we are living under a progressively more authoritarian regime, and the question of whether the extant social structures are capable of reversing dictatorial progression or are acting to promote it. See. e.g., Enclosure 7, United States v. Sunrise, S. Ct. CR. No. 90-6247, Petition for Writ of Certiorari, filed October 29, 1990 (pending).
I am presently involved with a project known as Proposition One, intended to encourage social structures capable of promoting the common good to act accordingly. Proposition One is a voter initiative -- approved on October 19, 1990 by the District of Columbia Board of Elections and Ethics as proper subject matter for the 1992 D.C. ballot (D.C. Initiative No. 32) -- which proponents intend to place on the ballots in each of the 22 United States with statewide initiative provisions, as well as hundreds of additional localities in those states without statewide initiative provisions. Clearly this is an ambitious undertaking which immediately requires at least nine cubic feet of literature in Lafayette Park to assure sufficient quantities for distribution. See, Enclosure 8.
Because I believe in a God of love it seems reasonable to assume that if everybody can come to their senses and repent, then nobody would have to be condemned to eternal torment. Therefore I even try to lobby those whom I might think to be the least likely to repent. See, Enclosure 9.
The enclosures accompanying this letter represent only a sample of printed matter regularly discussed and distributed during the course of my vigil. Unless I am mistaken the NPS estimates that more than three million people visit Lafayette Park each year. It shouldn't take a genius to realize that sufficient quantities of this literature for distribution could exceed three cubic feet even if the ideas expressed weren't particularly popular.
Over the years, as NPS regulations have become increasingly more oppressive, burdensome, and in my opinion unnecessary, I have altered my activities in an effort to conform my behavior to these changes. For instance, although there is a public restroom in Lafayette Park, in order to avoid the appearance of "using park lands for living accommodation purposes," I never use the public facilities. Because I always leave the park to urinate or defecate, and because there is presently a regulation that requires a demonstrator to be within three feet of his signs, I use a bicycle, among other reasons, to "go to the bathroom." Now, I have to wonder, would possession of my bicycle become a crime under this proposed rule?
Incidentally, the "camping" regulation, which specifically addresses "storage of property," would certainly seem to be adequate to alleviate many of the problems which the proposed rule imagines.
Moreover, unless I'm mistaken, the code of federal regulations also already prohibits abandoned property. In any event I do have in my possession numerous photographs of incidents where Park Police have routinely removed property from the Park under, one assumes, the authority of the regulatory scheme currently governing the situation in Lafayette Park.
Which brings us to "The Current Situation in Lafayette Park." Fed. Reg. Vol. 55 at 40680. The proposed rule asserts that out of some nine or so million visitors to the Park over the last three years, the NPS is terribly concerned with "at least five written requests for some action against the visual blight in Lafayette Park." Id., ET deaf. I wonder, would the NPS consider razing the statue of Andrew Jackson if five individuals who believed that their "pursuit of happiness includes (their) rights to peaceful enjoyment of (their) privileges and rights, in that respect, (and are) not happy when (they are) forced to pass by and (are) forced to see what (they consider) to be an unsightly" monument to human carnage and the subjugation of indigenous people? Id., parentheses substituting.
It seems that the NPS's only "material" argument is, "the use of paint in the Lafayette Park has caused damage to park resources including sidewalks and walkways. The use and storage of bedding, blankets, and sleeping bags on turf areas have caused damage to these areas."
Let us assume that the NPS can convince an impartial factfinder that paint damage to sidewalks and sleeping bag damage to turf areas is a fact in Lafayette Park rather than, as I suspect, a fiction. Then, applying a "least restrictive" standard (see, e.g., ERA v. Clark, 746 F2d 1518), would not a legitimate NPS rule-making necessarily be limited to a regulation that simply prohibited sleeping bags on the-grass and paint dripping on sidewalks?
Which could reasonably bring us back to the question of regulatory intent. Comparing "The Current Situation in Lafayette Park" (Fed Reg at 40680) with previous "Current Situation(s) in Lafayette Park," we discover that "two persons who have been in the Park since 1981" are pointedly referred to. E.g. Fed Reg Vol. 50, No. 161, pg. 33572, August 20, 1985. This in turn could reasonably lead to the conclusion that the "two persons" are considered to be the "visual blight" often mentioned as the aim of the regulations.
I do not think that the subjective opinion of certain park users with regard to the aesthetic acceptability of other park users can reasonably justify a regulation that would have the effect of criminalizing the "continuous presence" of any users whom the NPS might choose to characterize as "visual blight."
Even if the Park Service thinks it is only targeting "two persons," I am reminded of a quote attributed to Pastor Martin Niemeier which seems to illustrate the principle that everyone will eventually be adversely affected should this proposed rule be promulgated.
"In Germany they first came for the Gypsies, and I didn't speak up because I wasn't a Gypsie. Then they came for the Communists, and I didn't speak up because I wasn't a Communist. Then they came for the Jews, and I didn't speak up because I wasn't a Jews. Then they came for the trade unionists, and I didn't speak up because I wasn't a trade unionist. Then they came for the Catholics, and I didn't speak up because I was a Protestant. Then they came for me -- and by that time no one was left to speak up."
Also, I believe that the very construction of the rulemaking proposal as published in the Federal Register, and actions of those identified as contacts "for further information," combine to present at least a threshhold question as to the rulemakers' good faith:
Given only the brief "History of Lafayette Park" and "Unique Features of the Park" to balance against my own understanding of Thomas Jefferson's values and priorities, it seems incredible to even suggest that President Jefferson might ever have valued a "meticulously manicured garden park" above the unfettered expression of views and opinions. I also wondered, among other things, who were "those people for whom the park had originally been intended by President Jefferson"? To clarify these questions, on November 26, 1990 I called the offices of Sandra Alley and Richard Robbins -- the two individuals identified in the rulemaking as contacts "for further information" -- to inquire as to the historical source from which the "History of the Park" was drawn. When I was unable to speak with either Ms. Alley or Mr. Robbins personally, I left messages requesting that they return my call to cite the sources from which their "History" was drawn. Neither Ms. Alley nor Mr. Robbins ever returned my call.
Since ancient times it has been recognized that "to make a man an offender for a word" is unacceptable in the eyes of God. Isaiah 29. Writing separately, Judge Wald addressed the impermissibility of stifling "dissent" by redefining it as "camping." ERA v. Clark, 746 F2d 15 _. Please ask yourself, would this proposal have the effect of eliminating "possession of literature" by redefining it as "storage of property"?
Finally, because the Park Service appears to rely heavily on the idea of a public consensus on "aesthetics" and "visual blight," I believe that in fairness the NPS should not have declined to extend the public comment period, as provided for in 5 USC 553, beyond December 3, 1990 (see Enclosure 10), thus providing a more accurate yardstick by which to measure actual public sentiment.
If NPS really thinks it has some legitimate interest in taking "action against" "visual blight," then I think the practical and civilized alternative to this proposed rule would be for the Park Service to specifically identify the "visual blight" which it feels compelled to move against.
If it turns out that I am identified as "visual blight," society can better determine how to deal with that specific problem. Unless I am determined to be "visual blight," then it seems I should be exempt from this proposal.
I hope you will consider this letter carefully and, if my reasoning is sound, act honorably and justly by rescinding this proposed rule.
In the Service of a Loving Creator,
1) Thomas v. United States - Certiorari Petition
2) Huddle v. Reagan - Complaint, Amended Complaint, Appendix
3) Federal Register
June 4, 1982, pgs. 24299-24306
April 22, 1983, pgs.17352-17354
June 17, 1983, pgs. 28058-28063
August 20, 1985, pgs. 33571-33575
March 5, 1986, pgs. 7556-7566
4) Life, Liberty & the Hot Pursuit
6) Peace Park - the Play
7) United States v. Sunrise
8) Proposition One
9) Bush letter
10) Letter to NPS requesting extension of comment period