LEGAL TIMES * WEEK OF JARUARY 28, 1991
Protest Bar' Shrinks
Anti-War Activists Face Changed Legal Terrain
BY TOM WATSON
Section 7.96 of the Code of Federal Regulations may not sound much like an instrument of oppression. But to protesters of the Persian Gulf war and their lawyer in Washington, it is the next brick in the wall the government is building to obstruct domestic political dissent.
The National Park Service wants to amend Section 7.96 to stop demonstrators and others from leaving bundles of bedding, clothing, and household items in Washington's historic Lafayette Park. The Service argues that protesters have helped turn a scenic tourist attraction - just across Pennsylvania Avenue from the White House - into an unsightly mess.
To combat the problem, the park Service has proposed limiting each person's property to a patch of the park no greater than three cubic feet.
But that plan strikes some lawyers as a barely veiled assault on demonstrators' rights to petition the government from the nation's premier stage for displays of dissent.
"This is just another way of trying to clear people out of this important area," says Schastian Graber, a solo practitioner based in Madison County. Va., who has long warred against government restrictions on political speech.
Welcome to the changed legal landscape of protest, circa 1991.
Gone are the inflamed clashes over the core components of free speech that marked anti-war protest in the Vietnam era and that served as the grounds for decision in court case after court case. The major questions of content seem to be settled. What debate remains in these troubled days of Operation Desert Storm is over formónot over what protesters can say, but how, when, and where they can say it.
To Graber and his colleagues in the so-called protest bar, it's an insidious debate. The government lost most of its challenges to political demonstrators in the 1960s and early 1970s, they point out. Only in the last decade, they argue, has the government assembled a solid winning streak in placing restrictions on dissentóby strategically focusing on the time, place, and manner of protest, rather than the substance of protesters' speech.
"The government is going through the back door to do what it couldn't do through the front door," says one veteran member of the protest bar.
But government officials, past and present, defend such restrictions-limiting the size of signs, for example, or labeling domestic of off-limits a certain stretch of the White House sidewalk.
Our job is to allow as wide latitude as possible for the expression of views,"
Says Jay Stephens, the U.S. attorney for the District of Columbia. "But at the same time, we have of protect citizens, law-enforcement officers, and public property."
Joseph diGenova, Stephens' predecessor as U S. attorney here, adds that the Supreme Court has sanctioned the various regulations that have triggered the protest bar's complaints.
"The court is the appropriate arbiter of these questions, and the court, not the government, has decided that reasonable limits on certain public areas are acceptable," says diGenova, now a partner in the D.C. office of Chicago's Hopkins & Sutter.