Federal Register
Vol 51, No. 43
Wednesday, March 5, 1986
Rules and Regulations

DEPARTMENT OF THE INTERIOR
National Park Service
36 CFR Part 50

National Capital Parks Regulations;
Lafayette Park Structure Prohibition and Sign Limitation,

Agency: National Park Service, Interior.

ACTION: Final Rule.

SUMMARY: This final rule amends the National Capital Parks regulations in 50.19 of 36 Code of Federal Regulations to prohibit stationary structures, with certain exceptions, and to place reasonable limitations on the size and number of stationery signs in Lafayette Park. The National Park Service has received numerous complaints from the general public concerning the presence in Lafayette Park of semi-permanent, billboard-type signs and various structures that substantially distract from the aesthetic quality of, and occupy a disproportionate amount of space within, the Park. Furthermore, concerns have been raised about damage to the Park and public safety. The rule addresses the use of Lafayette Park through a balancing of First Amendment freedoms of speech and expression against the rights of the park visitor to utilize this historic Park for traditional recreational and aesthetic purposes. A proposed rule was published on August 20, 1985. 50 FR 33571. Comments were accepted until October 21, 1985.

EFFECTIVE DATE: April 4, 1986.

FOR FURTHER INFORMATION CONTACT: Sandra Alley, Associate Regional Director, Public Affairs, National Capital Region, National Park Service, 1100 Ohio Drive, SW., Washington, DC 20242, telephone (202) 428-6700; Richard G. Robbins, Assistant Solicitor, National Capital Parks, Office of the Solicitor, Department of the Interior, Washington, DC 20240, telephone (202) 343-4338.

SUPPLEMENTARY INFORMATION:

I. Background

As pointed out by the American Society of Landscape Architects Lafayette Park is a publicly-owned historic landscape end is part of the Lafayette Square Historic District. Once part of the White House grounds, Lafayette Park was separated from the White House in the early 1800's by President Thomas Jefferson for the use of residents and visitors to Washington, The visual quality of Lafayette Park is of extreme importance as the Park functions as a formal garden park of meticulous landscaping, with flowers, trees, fountains, walks and statues. In addition, Lafayette Park is a critical part of the aesthetic setting of the White House, literally functioning as the "front door" of that setting.

The National Capitol Planning Commission ("NCPC"), the central planning agency for the Federal Government in the National Capital Region, pointed out that Lafayette Park has been designated as a "Monumental and Decorative Park". As such, the NCPC indicated that it applies the following policies to Lafayette Park:

Monumental and Decorative Parks, as shown on Diagram 1, 2, and 3. Lafayette Park appears on Diagrams 1, 2, and 3, should serve as settings to enhance public buildings, monuments and memorials; of each, their fundamental integrity should be protected. Additionally, they should serve as outdoor areas for displays and cultural activities, as well as areas for passive and controlled active recreational activities, including lunch time picnics and gatherings.

Lafayette Park has functioned historically as a site for residents and visitors to engage in recreational activities such as strolling through the grounds, eating lunch, reading or viewing the White House, Because of the character of the Park, more intensive recreational activities, such as softball and special events. are not allowed there. In addition, Lafayette Park has functioned historically as a site for traditional First Amendment activities, such as leafletting, making speeches, and carrying signs.

For most of the history of Lafayette Park, these many different interests-- historic aesthetic, recreational, and First Amendment--have all been accommodated within this seven-acre park. However, over the past few years, Lafayette Park has been increasingly dominated by large semi-permanent signs and structures of every sort which are often unattended by their owners.

It has not been uncommon to have signs as large as twenty-five feet by twelve feet in the Park for months at a time. In addition, it has not been uncommon to have structures ten feet high, eight feet long and four feet wide in the Park for long periods of time. Further, while the number of signs and structures increases and decreases as demonstrators come and go in the Park, there has generally been a large number of such materials in the Park at the same time. In August of 1984, for example, there were one hundred and forty signs in Lafayette Park on a continuing basis. Rather than a testament to differing opinions, the majority of these signs expressed the views of a handful of demonstrators. Eighty of the signs

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present in the Park in August of 1984 belonged to one demonstrator. Over the past two years, two to six demonstrators have accounted for a vast majority of the signs that continuously occupy a large portion of Lafayette Park.

In July of 1985, there were seventy-seven signs in Lafayette Park, ranging in size from two feet by three feet to a sign eight feet by twenty-four feet. There were three signs that measured twelve feet by fifteen feet and thirteen signs that were at least eight feet wide. One of these signs indicated that thirty-three of the total number of signs belonged to two persons who had been in the Park since June of 1981. In addition to signs, there were various structures in the Park, including pyramids, chairs, a grocery cart, and desks.

These signs and structures have substantially tipped the delicate balance between casual use and the exercise of First Amendment rights that has existed in Lafayette Park for decades. Commenters on the proposed regulations indicate repeatedly that they have been preempted from utilizing the Park by a few demonstrators who physically occupy a great deal of space in the Park with signs and structures. Further, commenters indicate that it is difficult to get a dear view of the White House from behind the signs and structures in Lafayette Park. One demonstrator has had up to eight billboard-type signs, along with various smaller signs, lined up on the south sidewalk of the Park for long periods of time. This individual, along with one other demonstrator, has occupied almost half of the length of the south sidewalk of the Park, substantially interfering with the view of the White House from Lafayette Park.

In addition to the problem of a few individuals continuously preempting the use of a large portion of the Park, visitors complain frequently that the numerous large signs and structures amount to a visual blight in the Park and generally create an offensive and unsightly appearance in an otherwise formal and historic park area. Prior to the publication of the proposed rule, the National Park Service received at least twenty-five complaints, most requesting some action, concerning Lafayette Park. Each month since then (August, 1985), the Park Service has received additional complaints about the unsightly condition of Lafayette Park. Despite the fact that a few persons commenting on the proposed regulations indicated that they did not recognize an aesthetic problem in the Park, almost two hundred other people complained about the present condition of the Park, some even saying that they will not visit, walk through or even drive past the Park. Many of these commenters acknowledged the importance of exercising First Amendment rights in the Park, but then plead for some balance between the rights of demonstrators and those of visitors to enjoy the beautiful and historic park.

Further, conversations with United States Park Police officers assigned to Lafayette Park during tourist seasons reveal that they receive frequent complaints about the visual blight in Lafayette Park. Complaints noted by the officers include the fact that large signs interfere with the view of the White House, prevent picture taking and, together with the ever-present structures, generally ruin the aesthetic quality of Lafayette Park.

In addition to aesthetic concerns, Park Service workers and members of the public have expressed concern about the safety of large billboard-type signs. Large signs in the Park are generally constructed of plywood and are very often crudely supported. Many times the signs are not attended by their owners. On several occasions, large signs have been blown down by heavy winds and, in one case, a sign struck a pedestrian resulting in a head wound requiring several stitches. In addition, structures, often crudely constructed and sometimes utilizing glass pieces and protruding nails, present other safety hazards.

The Park Service has attempted to work with individuals having large signs and structures in order to ensure that these items are safe and properly secured. However, it has been the experience of the Park Service that it is almost impossible to keep up with the varied signs and structures that sometimes appear overnight in the Park. Further, some demonstrators are uncooperative in making changes in their property. Even when demonstrators will cooperate in attempting to make their signs and structures safer, the methods for accomplishing that end sometimes result in damage to the Park. For example, it has been found that large signs are often most safely secured by placing numerous stakes in the ground, causing damage to the turf and the Parks in ground sprinkler system.

In addition to the damage caused by methods necessary to secure large signs and structures, the signs and structures themselves have caused injury to park resources. Whether the result of being permanently anchored to the ground or because of sheer size, many of the signs and structures in the Park can be moved only with considerable difficulty and only if the owner can be located. As long as large signs and structures are in the Park, it is impossible for the Park Service to perform routine maintenance such as watering, trimming and grass cutting. The placement of heavy signs and structures on the ground causes considerable damage to the turf, creating large patches of dried and dead grass. In addition, bricks making up the sidewalks through the Park have been crushed and damaged by large structures.

The presence of structures has been of particular concern in Lafayette Park. Without limitations on the size and use of structures, individuals have accumulated an assortment of buildings and rubbish in the Park, often unattended, Several two and three story structures have been built in Lafayette Park. Desks, chairs, bookcases, carts, doors and e porcelain toilet have all appeared in the Park. One individual filled a broken grocery cart with trash, stating that it was e symbolic structure. All in all, the presence of these items has produced a dump-like atmosphere in this historical and finely landscaped national park.

The National Park Service has attempted to deal with these problems under existing regulations. Starting in September of 1984, the Park Service began doing regular inspections of Lafayette Park in order to remove articles and conditions that violated federal regulations. Primarily utilizing its authority to remove stored and abandoned property, the Park Service removed many truckloads of property and trash from the Park, However, this authority was insufficient to deal with the many large signs and most of the structures that have appeared in Lafayette Park, as evidenced by the description of the condition of the Park in July of 1985. While there were fewer signs in the Park in July of 1985 than in August of 1985, this is due less to Park Service efforts to enforce existing regulations than to the fluctuation in the number of signs as demonstrations begin and end.

The National Park service currently has no effective regulations governing the use of signs and structures in Lafayette Park. Under present regulations, individuals and groups numbering twenty-five participants or less need not apply for a permit for, or even notify the National Park Service of, a demonstration in the Park. While groups numbering over twenty-five participants must apply for a permit to demonstrate, there are no provisions in

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existing regulations that would allow the Park Service to deny a permit for any kind or size sign. Under present regulations, a demonstrator may have as many signs, in whatever size, as Lafayette Park can accommodate.

Likewise, there are limited regulations governing structures. While a permit is necessary to erect a structure in any park area, the Park Service has no regulation prohibiting individual structures unless they cannot be accommodated in the Park. Therefore, existing Regulations would not allow the Park Service to deny a permit for a symbolic display comprised solely of a porcelain toilet, for example.

In addition, it is often difficult to enforce existing regulations concerning trash and abandoned property. For example, the Park Service cannot always tell what property is trash and what is not. One individual had a cone covered with a pair or men's underwear in Lafayette Park. The individual claimed that the object was a symbolic structure.

Further, the Park Service has had a difficult time enforcing abandoned property regulations as it is not always possible to tell what is abandoned and what is not. One individual will often claim most of the signs and structures in the Park only to disappear the next day when some other individual claims all the objects. In addition, demonstrators are frequently in and out of the Park, making it impossible to prove clearly that they have abandoned their property. Finally, there are so many signs, structures and other property in Lafayette Park at any one time that it is difficult for Park employees who work in the Park on a daily basis to tell what property belongs to which demonstrator. Because of the lack of regulations to deal effectively with aesthetic, public safety and resource protection problems in Lafayette Park. the National Park Service proposed amendments to the present demonstration regulations on August 20, 1985.

II. Analysis of Comments

I. Comments in Support

The National Park Service received one hundred and twelve letters and post cards and one petition containing one hundred signatures from individuals and groups supporting the proposed regulations Most of these commenters expressly stated that large signs and structures in Lafayette Park substantially disrupted their enjoyment and view of the Park. Many found the Park to be "embarrassing" and "disgusting" due to the on-going demonstrations. Illustrative of many of these comments is the following:

Congratulations and thank you for the newly announced regulations designed to clean up Lafayette Park while protecting demonstrators' First Amendment rights. The protection of their free-speech rights is highly important to me because I myself have marched and carried signs in support of a number of important causes. The proposed limit on size of signs and the "attendance requirement is very reasonable and logical. Otherwise, the "demonstration" becomes "dumping" in a public place.

"The current state of the park is deplorable. In my walks to and from work what I see is trash strewn throughout the park. The protesters are "few end far between." Numerous tourists are seen being frustrated in their attempts to view and photograph the White House and other fine architecture surrounding the park. The general appearance of the demonstrators and their shantytown is such that dialogue or any type of contact is avoided. Tourists returning to small towns recite with disgust how "the Government" has allowed protesters to litter, loiter, and camp permanently in this place which should belong to all the people.

A travel professional who works a few blocks from the White House wrote:

"I can speak from personal experience of the negative impression the scene in Lafayette Park presents to visitors, especially foreign visitors. Travel, especially to our beautiful monuments, constitutes the largest business in our area larger even than government. We cannot tolerate the blight any longer."

Other commenters also spoke of the physical damage done to the Park and the potential safety hazards posed by the large, unattended signs and structures, as well as aesthetic concerns. An example of this is the following excerpt from one letter:

I write to support the proposed amendments to NPS regulations concerning structures and signs in Lafayette Park, published on August 20th in the Federal Register. The amendments are a balanced approach to a serious problem, and protect the rights of those who wish to enjoy the park for its intended end primary purpose, while permitting exercise of 1st Amendment rights in the public space. Current regulation, or lack thereof, have led to a deterioration in both the physical environmental integrity of the park, and in it's aesthetic qualities. I live and work near the Park and have personally observed the destruction that some of these structures and signs have had on the grassy areas. The number of signs--many with the same or similar message, detracts from both the actual physical space that is available for enjoyment of this area for its intended use-- as a park, and from the beauty of the area. The purposed amendments are a reasonable time, place and manner restriction which protects the park itself, as well as the rights of those who use the park as a park, yet permits those who use it only as a public forum to do so. I urge adoption of the proposal without substantive change. (Emphasis in the original)

The American Society of Landscape Architects summed up many of the comments received when a recommended the adoption of the proposed regulations and succinctly stated the reasons as follows:

Lafayette Park has long been a major component in the historic setting of the White House, and is of critical importance in its context with the City of Washington. The park is a key experience to visitors to Washington from around the world, as well as a daily experience for many local residents. The present situation is both visually unattractive and potentially dangerous to visitors and users of what has historically been a meticulously maintained passive environment.

Many of the commenters expressed their commitment to the exercise of First Amendment rights but then stated their view that that exercise should not preclude others from enjoying the Park. The common thread running-through the letters supporting the proposed regulations was a plea for balance, as evidenced in the following excerpt from one letter:
I strongly support freedom of expression am eternally vigilant to trends that impinge on that freedom However, there must be balance. In recent years there has been no such balance. Signs in Lafayette Park are unsightly, too large, and precariously erected. The safety of visitors to the park as well as the desire of visitors to the city to appreciate its sights must be weighed against the freedom of expression to achieve the required balance.

Most of the commenters expressed ~ their belief that the proposed regulations represent the proper balance between the exercise of First Amendment rights and the rights of Park visitors. A judge on the United States Claims Court wrote as follows: "The proposed amendment represents a good-faith effort to balance the exercise of first amendment rights with the very real spoliation of Lafayette Park." The American Society of Landscape Architects commented as follows:

The ASLA is aware of the sensitivity of this issue in regard to First Amendment freedoms, and feels that the proposed regulations are fair and appropriate in balancing those freedoms against the right of the park visitor. The American Society of Landscape Architects recommends the adoption of these regulations.

2. Comments in Opposition--Too Lenient

The National Park Service received seventy-six letters and postcards from individuals and groups who felt that the

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proposed regulations were too lenient. One letter contained eight signatures. In addition, the Park Service received one petition with nine signatures requesting that the regulations be changed to allow only hand-carried signs in Lafayette Park.

The majority of these commenters suggested that the National Park Service place a total ban on stationary signs in Lafayette Park. For example, J. Carter Brown, writing for the Commission of Fine Arts, indicated that the Commission "can testify only too well the degree to which this most historic of Washington's parks has been increasingly spoiled over the last few years by a proliferation of signs and other structures erected in the name of some cause." Finding that the major cause of the problems in Lafayette Park is the permanent nature of signs and structures, the Commission recommended a requirement that signs and demonstrators keep moving throughout a demonstration.

Senator Mark O. Hatfield pointed out that "Oregonians who visit Washington frequently mention their unhappiness over the lack of respect shown for the public interest in maintaining a scenic public park in front of the White House." The Senator also pointed out the substantive damage done to the Park by large signs over the years. The Senator stated that he would not object to even more restrictive size requirements and the elimination of all stationary signs. Representative John F. Seiberling questioned why any sign should be set up as a permanent fixture in the Park and suggested that the Park Service allow only one sign per person. The Architect of the Capitol and the Washington Legal Foundation, as well as many individuals, also suggested that the Park Service allow only hand-carried signs in Lafayette Park.

The National Park Service agrees that a requirement that all signs be hand-carried, rather than stationary, would better serve aesthetic, public safety and resource concerns in Lafayette Park. However, the Park Service believes that it has an obligation to attempt a less restrictive alternative, such as the regulations adopted here, to determine whether this alternative would be sufficient to meet the substantial government interests detailed. If the final regulations, once made effective, do not meet these interests, the Park Service may then consider further regulatory changes.

A number of other commenters suggested that signs and/or demonstrations be banned from Lafayette Park altogether. The National Park Service recognizes that a part of Lafayette Park's history is the Park's role as situs for free expression. The Park Service believes that it would not be appropriate to ban demonstrations from this area.

Other commenters suggested additional time and place restrictions on demonstrations in Lafayette Park, For example, the Washington Legal Foundation ("WLF") found the proposed regulations to be a "half-hearted" and "timid" attempt to deal with the problems in the Park and suggested several alternatives. Primarily, the WLF suggested a requirement that: (1) All signs be hand-carried and those signs be no larger than four feet by four feet, (2) all signs be confined to either the Northeast or Northwest quadrant of Lafayette Park; and (3) no demonstrations be allowed between 11:30 a.m. and 2:30 p.m. each day. Again, we believe that the Park Service should try the less restrictive alternative and, only if it fails, should move to more restrictive measures.

Many other commenters agreed with the WLF's proposal to close the Park to demonstrations periodically. Some suggested closing the Park at night; some suggested closing the Park on weekends. One commenter suggested that no group should be allowed to demonstrate longer than 24 hours in any one seven-day period. Finally, one individual suggested an alternative regulatory scheme that would allow larger signs, but with restrictions on length of stay.

The National Park Service did consider closing the Park to demonstrators at night. However, this limitation, as any limitation on duration of demonstrations, would preclude continuous vigils in Lafayette Park. Although the Park Service does not believe that it has a constitutional obligation to allow continuous vigils, it does not wish to preclude them unless other measures are insufficient to meet aesthetic, public safety and resource concerns.

Other commenters suggested that sign size limitations be more restrictive. The National Capital Planning Commission supported the proposed regulations but suggested that further limitations be placed on stationary signs. One individual recommended a regulation that would limit the maximum allowable sign size to three feet by three feet. This contrasts sharply with the views of commenters who felt that the sign sizes proposed in the regulations were too restrictive, as discussed below. While any decision as to allowable sign size is a difficult line-drawing exercise, the National Park Service believes that it has chosen a sign size limitation which represents a reasonable accommodation between aesthetics, resource protection and public safety, and the ability of demonstrators to convey a message.

Several commenters further suggested that the limitations on demonstrations in the proposed regulations be extended to all parks in downtown Washington. The National Park Service maintains the different parks at different aesthetic levels. For example, the Mall and the Ellipse are not maintained as formal garden parks like Lafayette Park. Further, parks like the Mall and the Ellipse can sustain greater impact. They are maintained in great part for recreational purposes. Therefore, the Park Service believes that each park must be considered separately.

Several commenters also mentioned areas in which the proposed regulations were vague, and thus needed further clarification. One commenter questioned whether limitations on signs "placed or set down" would include signs set on wheels. To clarify the intent of the regulations that all signs not hand-carried are subject to the size limitations specified, we have deleted the "placed or set down" language in the final regulations and inserted language specifically subjecting all "signs not being hand-carried" to the size limitations.

The WLF also pointed out that the provision in the proposed regulation allowing speaker's platforms is unclear as ta when these structures may be used and whether they must be attended. We have revised the proposed regulations to allow the use of a speaker's platform as reasonably required to serve demonstration participants only when a demonstration actually attracts one hundred or more participants and only when the platform ia being erected, dismantled or used. Likewise, for a demonstration attracting fewer than one hundred persons, the final regulations would allow a "soapbox" speaker's platform only when it is being erected, dismantled or used.

Finally, commenters pointed out that problems other than aesthetics are caused by the use of large signs and structures in Lafayette Park. The WLF expressed their concern for the safety of the White House and the President in light of the numerous means of concealment offered by large, permanent signs and structures. Another commenter indicated that large signs and structures often block passageways, benches and trash cans throughout the Park. Almost every commenter objected to the usurpation of substantial parts of the Park by a few demonstrators. The National Park Service believes that the

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final regulations, coupled with existing regulatory authority, will eliminate most of these problems.

Federal Register Vol. 51, No. 43 - Continued


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