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
6
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.[1] 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.]
7
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. [2] The particular regulation Nomad violated provides in
full:
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
other
[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.
8
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
9
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
permitted demonstration.
[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.
10
III. CONCLUSION
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
dismissed.
It is so ordered.
CA 91-3111 Intro
Case Listing