U.S. v. Nomad
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UNITED STATES COURT OF APPEALS
FOR THE DISTRICT OF COLUMBlA CIRCUIT
Argued May 7, 1992
Decided June 30, 1992
UNITED STATES OF AMERICA,APPELLEE
JANE DOE, aka DIANE NOMAD,
Appeal from the United States District Court
for the Distict of Columbia
(Criminal No. 91-00076-01)
Michael C. Wallace, Sr., Assistant Federal Public Defender,
with whom A.J. Kramer, Federal Public Defender, was on the brief,
Arthur B. Spitzer, with whom Elizabeth Symonds was on the
brief, for amicus curiae urging that the Court reverse
[Bills of costs must be filed within 14 days after entry of
judgment. The court looks with disfavor upon motions to file
bills of costs out of time.]
Mary-Patrice Brouln, Assistant United States Attorney, for
appellee. Jay B. Stephens, United States Attorney, John R.
Fisher, Brian M, Murtagh, and Elizabeth H. Danello, Assistant
United States Attorneys, were on the brief, for appellee.
Before WALD, EDWARDS and WILLIAMS, Circuit Judges. Opinion
for the Court filed by Circuit Judge WALD.
WALD, Circuit Judge: While beating a drum as part of a
political protest in Lafayette Park across the street from the
White IIouse, Diane Nomad violated a federal regulation which
prohibits playing a musical instrument at a higher than
prescribed decibel level in a national park. In this appeal Nomad
challenges the constitutionality of that regulation on the ground
that it impermissibly restricts her First Amendment rights to
engage in expressive conduct in a public foruI11. The district
court ruled that the regulation survive s First Amendment
scrutiny as a "reasonable time, place, and manner" restriction on
speech. We do not agree. The government has failed to carry its
burden of showing that the regulation is "narrowly tailored" to
further the government's interest in preventing excessive noise
in a national park that is also an acknowledged public forum. The
record before us is barren as to support for the government's
position that the decibel limit imposed on musical instruments is
a reasonable one; what evidence there is suggests the contrary,
that given the amount of ambient noise generally present in
Lafayette Park, the decibel level may be unreasonably low.
As a protest against the United States' bombing of Iraq during
the Gulf War, Diane Nomad, along with other protestors, chanted
and beat drums in Lafayette Park for several days and evenings in
January 1991. After a week of such protests, the United States
Park Police warned the protestors that they were violating a
tion relating to national parks, which prohibits "operating ...
an audio device, such as a... musical instrument, in a manner
that exceeds a noise level of 60 decibels measured on the
A-weighted scale at 50 feet." 36 C.F.R. Sec. 2.12(a)(1)(i)(1991).
A police officer utilizing a sound meter with an A-weighted scale
found the noise level in the park to exceed 70 decibeIs measured
from two different locations, one 54 feet away and one 74 feet
away from the chanting and drumming protestors. After three
unheeded warnings, the police officers arrested Nomad and the
other demonstrators for violation of the 60-decibel regulation.
Nomad moved in district court to dismiss the charge on the
ground that the regulation itself violated the First Amendment.
She argued that the regulation is overbroad because it prohibits
a substantial amount of expressive condud beyond the government's
legitimate interest in preventing excessive or disturbing noise.
The district court denied her motion, finding that the challenged
regulation was a reasonable time, place and manner restriction,
justified by the governmental interest of maintaining "a peaceful
setting" in Lafayette Park. As 'part of the group" of
demonstrators beating the drums in violation of the § 2.12(aX1Xi)
decibel level, Nomad was subsequently convicted in a bench trial
for "aid[ing] and abett[ing] this concerted action."
There can be no question that beating a drum in the context of a
clearly identified anti-war demonstration is expressive conduct
protected by the First Amendment. See, e.g., Ward v. Rock
Against Racism, 491 U.S. 781, 790 (1989); Texas v. Johnson, 491
U.S. 397 (1989). We are additionally spared the need for any
extended "forum analysis" in this case, as no one disputes that
Lafayette Park is a "quintessential public forum," see White
House Vigil for ERA Committee v. Clark, 746 F.2d 1518, 1526-27
(D.C. Cir. 1984), and accordingly, "the government's abil-
ity to permissibly restrict expressive conduct [there] is very
limited." United States v. Grace, 461 U.S. 171, 177 (1983); see
Hague v. CIO, 307 U.S. 496, 515-16 (1939).
Furthermore, the Supreme Court has provided us with a
three-pronged test which a government restriction must meet to
restrict First Amendment protected speech in a public forum; the
first of which is not in dispute in this case and the third of
which we need not reach. "Even in a public forum the government
may impose reasonable restrictions on the time, place or manner
of protected speech, provided the restrictions 'are justified
without reference to the content of the regulated speech, that
they are narrowly tailored to serve a significant governmental
interest, and that they leave open alternative channels for
communication of the information."' Ward, 491 U.S. at 791
(quoting Clark v. Community for Creative NonViolence, 468 U.S.
288, 293 (1984) (emphasis supplied)). Section 2.12 of the
national park regulation on its face is content neutral. It
prohibits the playing of all musical instruments above the
prescribed level for whatever purpose or cause, and no one claims
here that the regulation has been applied inconsistently or that
Nomad has been singled out for prosecution because of her
message. See Clark, 468 U.S. at 288.
The dispute here pivots on the second prong of the "time,
place, and manner restrictions" test. Nomad and amicus, the
American Civil Liberties Union of the National Capital Area,
assert that the decibel-limit for musical sounds specified in the
regulation is not narrowly tailored to serve an important
governmental interest in preserving Lafayette Park for
appropriate uses. Rather, they argue, it is a blunderbuss weapon
which results in severely impairing speech rights in a situs
where the government not only tolerates but explicitly permits
demonstrations and protests because of its unique location across
the street from the White House. Nomad asserts the absence of any
"tailoring," let alone "narrow tailoring" of the sound volume
limit to the unique nature of Lafayette Park.
The government counters on two fronts. First, it asserts that
it has a substantial interest in maintstining "the peaceful
setting" in the nation's public parks. Appellee's Brief at 11.
According to the government, "people turn [to public parks] for
refreshment from the commotion and turmoil of everyday life.
Maintaining Lafayette Park as a place of quiet enjoyment,
therefore is a legitimate goal [of government]." Id. Second, it
contends that it is not within this court's provincem "to
finetune" the regulation or substitute its judgment for that of
the Park Service as to whether Sec. 2.12 should be applied to
Lafayette Park. Id. at 13 (quoting White House Vigil v. Clark,
746 F.2d at 1529). As long as the Park Service's judgment on its
application is reasonable, it is irrelevant that the Park
Service--or the court--might have drawn the line differently, to
allow more expressive conduct.
Whether the regulation meets the "narrowly tailored" requirement
is of course a question of law, to be reviewed by an appeIlate
court de novo. See, e.g., White House VigiL v. CLark, 746 F.2d
at 1529. This court has charaderized "the test of'narrow
tailoring' ... as a balancing test, inquiring whether the
restriction 'burdens more speech than is necessary to further
the government's legitimate interests.' " Henderson v. Lujan, No.
91-5258, slip opinion ("slip op.") at 9 (D.C. Cir. May 22, 1992)
(quoting Ward, 491 U.S. at 799).
To apply the "narrow tailoring" test in this case, we first
determine the extent of the government's asserted interest. We
recently recognized that the government has a substantial
interest in promoting "the tranquil, contemplative mood at the
[Vietnam Veteran's] Memorial wall." Id. at 11. In a similar vein,
the Supreme Court has held that an ordinance prohibiting
picketing in front of a person's home does not violate the First
Amendment because the government has a significant interest in
protecting the integrity of the home and a person's feelings of
"wellbeing, tranquility, and privacy." Frisby v. Schultz, 487
'LT.S. 474, 477 (1988). Courts in these cases have found
significant governmental interests in maintaining a tranquil
atmosphere stemming from the essential nature of the locations involved--the sidewalks in front of a person's home and memorial honoring the nation's war dead. Nothing in these cases, however, remotely suggests the existence of any generalized government interest in maintaining the same level of quiet in all public spaces. Indeed, the very concept of a situs being designated as a "public forum" for First Amendment purposes presupposes that the situs has "been used for purposes of assembly, communicating thoughts between citizens and discussing public questions." Hague, 307 U.S. at 515-16. Much like Hyde Park in London, Lafayette Park in Washington, D.C. has become a primary assembly point for First Amendment activity aimed at influencing national policies. Facing Pennsylvania Avenue an located directly across the street from the White House, it is exposed to every form of urban commotion--passing traffic, bustling tourists, blaring radios, performing street musicians, visiting schoolchildren. By no reasonable measure does Lafayette Park display the characteristics of a setting in which the government may lay claim to a legitimate interest in maintaining tranquility. This is evidenced by the government's own policy of issuing rally and demonstration permits for use in the park.
That said, the government certainly may justifiably impose some sound volume restriction upon persons in all parks including Lafayette. The Supreme Court has upheld the government's interest in preventing "excessive" noise in public parks, even in an urban area, see Ward, 491 U.S. at 781 (upholding noise ordinance for Manhattan's Central Park. Otherwise, citizens may be confronted with all
[1 In support of its position, the government cites Kovacs v. Cooper, 336 U.S. 77 (1949), which involved a municipality's power to prohibit "loud and caucous" noise on public streets. The Court there found the government's interest to be in preventing loud noise that constituted a "public nuisance." Moreover, the Court in Kovacs distinguished the public streets, where it allowed the restriction, from "parks an other open spaces," where, the Court hinted, the city might not be able to validly impose the same noise ordinance. Id. at 86.]
manner of "unwelcome noise," see City Council of Los Angeles v.
Taxpayers for Vincent, 466 U.S. 789, 806 (1984) --from
evangelical zealots screaming into microphones to over-amplified
rock music--and entirely prevented from doing their own thing in
the park. But "excessive" noise by definition means something
above and beyond the ordinary noises associated with the
appropriate and customary uses of the park. The crux of our case,
then, is whether Sec. 2.12 as presently written is "narrowly
tailored" to serve the interest of preventing "excessive" noise
in Lafayette Park.
Section 2.12 is part of a group of regulations promulgated to
"provide guidance and controls for public use and recreation
activities (e.g., camping, fishing, hunting, winter activities,
boating) in areas administered by the National Park Service." 48
Fed. Reg. 30252 (1983). The entire set of regulations deals with
uses typical of wilderness areas, such as Yellowstone Park, i.e.,
campfires (Sec. 2.13), wildlife protection (Sec. 2.2), food
storage (Sec. 2.10), and the collection of plant and animal
specimens (Sec. 2.5), not for urban enclaves such as Lafayette
Park.  The particular regulation Nomad violated provides in
Sec. 2.12 Audio Disturbances
(a) The following are prohibited:
(1) Operating motorized equipment or machinery
such as an electric generating plant, motor vehicle,
motorized toy, or an audio device, such as a radio,
television set, tape deck or musical instrument, in a
manner: (i) That exceeds a noise level of 60 decibels
measured on the A-weighted scale at 50 feet; or, if below
that level, nevertheless; (ii) makes noise which is
unreasonable, considering the nature and purpose of the
actor's conduct, location, time of day or night, purpose for
which the area was established, impact on park users, and
[2 There is a separate ll-page section of Federal Regulations
dealing specifically with First Amendment activities in the
National Parks of the Capital. See 36 C.F.R. Sec. 7.96(g) (1990).
Nomad was not charged with violation of any of these regulations.
factors that would govern the conduct of a reasonably prudent person
under the circumstances.
The government contends, nonetheless, that Sec. 2.12's placement
in a group of regulations designed for more typical national park
usages is not cause for inference that the decibel level, i.e.,
60 decibels, was necessarily chosen with non-public forum areas
in mind--those settings where even a modest noise from a radio or
musical instrument might disturb the wildlife or detract from
other visitors' ability to enjoy the soothing sounds of silence.
Unfortunately, however, there is zero in the record to support
the government's choice of the 60 decibel limit; no evidence
indicating how disturbing or "excessive" a noise (by any
standard) 60 decibels at 50 feet is. The government feebly
suggests that because the Park Service is better suited than we
to decide noise limits, its choice of this particular limit must
be a reasonabIe one. But this is not a Chevron situation where
administrative discretion is at its zenith. See Chevron U.S.A.
Izc. v.Natural Resources Defense Council, Inc., 467 U.S. 837,
843-44 (1984) (if congressional intent is silent or ambiguous in
statute which agency administers, court must defer to permissible
agency interpretation). Where constitutionally protected activity
is implicated, we cannot simply defer to the Park Service's
unexplained judgment. See Henderson v. Lujan, No. 91-5258, slip
op. at 10 (noting that court "cannot defer to [Park Service's]
judgment on the constitutional question" of "narrow tailoring").
In a First Amendment challenge, the government bears the burden
of showing that its restriction of speech is justified under the
traditional "narrowly tailored" test. That test, moreover, must
be applied in a realistic manner which takes into account the
nature and traditional uses of the particular park involved.
Lafayette Park is not Okefenokee National Wildlife Refuge, even
if both are under the Park Service's supervision. On the record
before us, it is impossible not to conclude that "the means
chosen [are] substantial~y broader than necessarv to achieve the
government's interest." Ward, 491 U.S. at 800. While the
government offered no evidence of its own to show that anything
above a 60-decibel sound volume would irritate or injure
passersby or nonprotesting users of the Park, 3/ evidence put in
the record by defense counsel suggested that loud
conversation~-the speaking voice of a single person during
questioning in the courtroom--exceeds 60 decibels. Trial
Transcript ("Tr.") at 22. There was also evidence that electric
generators in the Park operating at the time of the protest, when
tested two days after Nomad's arrest, made noise that registered
higher than 60 decibels at 50 feet. Tr. at 81-82. Further, Nomad
presented evidence that the raanufacturer's own instruction
manual for the measuring meters used by the Park Police describes
a 80-decibel sound as equivalent to "background music." Tr. at
25. While by no means conclusive, these particles of evidence
certainly raise doubts as to whether the 60-decibel regulation
prohibits only speech activity that is excessive or disturbing.
In any event, it is the government's case to prove and it has
failed to do so. There is nothing upon which we can base a
holding that this regulation is "narrowly tailored" to promote
the government's interest in maintaining an appropriate level of
sound volume in a traditional public forum park during a
[3 Government counsel conceded for the sake of argument that
passing tramc on the sbeets surrounding Lafayette Park often made
noise that exceeded the regulation's limit. Counsel argued that
an occasional burst of noise from traffic is less bothersome than
a persistent noise, and therefore, the government may
appropriately ban conduct in Lafayette Park that would actually
make less noise than surrounding tramc. The logic of her argument
is irrefutable, but it reveals nothing about the impact sound
measuring 60 decibels at 50 feet has on Park visitors or
passersby. For all we know, the regulation might ban any noise
that rould be heard above passing tramc, which of course would
frustrate the main purpose of a demonstration, to attract the
attention of passersby. We certainly are in no position to assume
that there is no feasible mid-ground where travellers on the
street would be made aware of a demonstration but not subjected
to unreasonable noise assault.
Any regulation imposing noise limits on expressive conduct in a
public forum must be "narrowly tailored" to the government's
interest in preventing excessive noise. What is excessive must
take into account the nature and purposes of the setting, along
with its ambient characteristics. We decide here only that no
case has been proffered that Sec. 2.12 represents a reasonable
restriction on expressive conduct in a park like Lafayette Park
that is a recognized "public forum" for speech and assembly; its
legitimacy in Yellowstone Park or other wilderness parks, for
which the regulation was apparently primarily intended, is not
affected by our ruling.
In light of our disposition of Nomad's First Amendment
challenge to the regulation, we do not reach her argument that
there was insufficient evidence to convict her, or that the
district court erred in denying her motion for acquittal.
For the foregoing reasons, the judgment of the district court
and Nomad's conviction is reversed. In light of government
counsel's steadfast insistence at oral argument that the
constitutionality of the regulation was a question of law which
could not be supplemented by additional factfinding at the trial
court level, we order that the charges against Nomad be
It is so ordered.
CA 91-3111 Intro