Federal Register
Vol 51, No. 43
Wednesday, March 5, 1986
Continued

3. Comments in Opposition--Too Restrictive

The National Park Service received thirty-nine letters from individuals and groups opposing the proposed regulations. It also received a petition with several thousand signatures, in opposition. However, after carefully reviewing the petition, it appears that many of the signatures were gathered in April and May of 1985, prior to the drafting of these proposed regulations, and in response to a preamble that speaks generally to the closing of Pennsylvania Avenue and "further restrictions on demonstrating around the White House." These pages do contain the sentence "I believe that the ethnic identity of the United States is more aptly expressed by freedom to assemble and protest in Lafayette Park than by pristine pictures of the White House". Even though most of the petition did not address the specific regulations proposed here, the entire petition was given careful consideration. We especially noted several pages that did refer specifically to provisions in the proposed regulations.

Many of the commenters opposing the proposed regulations made the point that Lafayette Park is a unique site for First Amendment activities because of the Park's close proximity to the White House and its occupants. Further groups such as the American Civil Liberties Union ("ACLU"), the Sierra Club and the White House Vigil for the ERA, as well as individuals, indicated that Lafayette Park has long been utilized by demonstrators such as the early suffragettes to bring their message to the public. The commenters stated their belief that, because of the unique opportunities Lafayette Park offers to bring a message directly to the public and the Executive Branch, demonstrations must be allowed to continue in that Park.

The National Park Service agrees that Lafayette Park is an appropriate site for demonstrations and emphasizes the fact that the final regulations do not prohibit demonstrations in the Park. The Park Service ia merely placing reasonable limitations on the demonstrations that do occur in the Park. Further, while Lafayette Park has historically been the site of many demonstrations for many different causes, the Perk has become a site for permanent billboard-type signs and structures only in the last few years. The Park Service is not attempting to change the traditional use of Lafayette Park for demonstrations. Rather, it is merely attempting to solve a problem that has recently arisen in the Park.

It was pointed out repeatedly by those opposing and those favoring the proposed regulations that it has only been a handful of individuals who have had the large signs and structures in the Park. Many of those opposing the regulations seemed to believe that the proposed regulations would somehow prevent, or were intended to prevent, those individuals from demonstrating in Lafayette Park. The National Park Service does not intend to prohibit any individual from demonstrating in Lafayette Park. The individuals now demonstrating in the Park may remain there under the final regulations. They simply cannot continue to have large, unattended signs and structures. Each demonstrator may have two four-foot by four-foot signs as long as they are attended. Further, demonstrating groups may have a speaker's platform and hand-carried structures.

The ACLU specifically questioned the motives of the National Park Service in promulgating these regulations, suggesting that the sole purpose for the amendments is to harass certain individuals now demonstrating in Lafayette Park. To support this proposition, the ACLU attached to its comments several affidavits by Concepcion Picciotto, a long-time demonstrator, that allegedly prove that the Park Service is allowing private citizens to destroy demonstrators' signs.

The final regulations are intended to address real and substantial problems now existing in Lafayette Park. If the regula:ions, when effective, have a greater impact on one group of demonstrators, it is only because those demonstrators are the ones causing the substantial problems in the Park with large signs and structures.

Further, we have examined Ms. Picciotto's complaints that the Park Police failed to stop private individuals from damaging her signs. Police reports indicate that Park Police arrived only after the alleged damage was done in each of these incidents. Having no authority to make arrests for misdemeanors not committed in their presence, the police appropriately referred Ms. Picciotto to the Citizens Complaint Bureau. See 16 U.S.C. law.

In another incident not mentioned by the ACLU, the Park Police went to Lafayette Park in response to a complaint by Ms. Picciotto that she had been assaulted and one of her signs had been damaged. The alleged assailant, a member of the military, admitted to destruction Of the sign. He was then taken into custody and, pursuant to Park Police General Orders, turned over to military authorities. The Park Police officer handling the complaint advised Ms. Picciotto to go to the Citizens Complaint Bureau to file e complaint and gave her a brochure on the Bureau. The officer later went to the United States Attorney's Office to seek a warrant against the assailant. That office declined to approve the application for a warrant.

Some commenters also suggested that restrictions on demonstrations on the White House sidewalk make Lafayette Park an even more important site for demonstrations directed toward the White House. It is true that restrictions were placed on the size, placement and construction of signs used on the White House sidewalk in July of 1983. These restrictions were intended to meet security as well as aesthetic interests on the sidewalk and were promulgated largely because of a proliferation of large, unattended signs and structures. The imposition of those regulations appears, in large part, to be the reason for the movement of large signs and structures to Lafayette Park. Once in Lafayette Park, the signs and structures grew in size and number until the Park Service was forced to consider additional regulatory limitations there also.

The Park Service believes, however, that the final regulations, coupled with the White House sidewalk regulations, leave open ample avenues for communication. Neither regulation prohibits leafletting, making a speech, having marches, exhibiting signs or engaging in any other traditional method of exercising First Amendment rights. In fact, an individual may have a sign as long as twenty feet and as wide as three feet on the White House sidewalk not three hundred feet from the White House.

One commenter argued that "by precedent" the proposed regulation would limit demonstrations in other parks. The final regulations are specifically applicable to Lafayette Park alone and would not place any limitations upon demonstrations in any other park, such as the Ellipse or the Mall.

Many of the commenters opposing the proposed regulations, such as the ACLU, take the position either that there is no problem in Lafayette Perk or that the problem can be handled under existing regulations. The ACLU, for example, stated that the Park Service has misrepresented the current situation and that visitors to the Park find the ongoing demonstrations to be "a thrilling example of their democracy in action."

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The ACLU further stated that visitors are not precluded from using Lafayette Park as they are free to walk through the demonstration sites. Other commenters questioned whether the view of the White House from Lafayette Park is really blocked by signs.

In response, the National Park Service points out ~t~at almost two hundred persons or groups wrote to the Park Service to support the proposed limitations on demonstrations in Lafayette Park or to request more stringent restrictions. Some of those letters have been quoted in part above. Commenters also pointed out the difficulty in getting a clear view of the White House from Lafayette Park.

It is obvious that some people find the aesthetic quality of Lafayette Park to be damaged by large signs and structures. It is equally obvious that there are divergent views on the question of aesthetic quality in Lafayette Park. For this reason, the Park Service has attempted to take e "middle" position in the final regulations that accommodates the exercise of free speech in the Park while still maintaining the aesthetic quality of the Park and meeting resource protection and safety concerns. We have carefully reviewed the regulations and found them to represent such "middle ground"

The ACLU and others did bring to our attention an additional aesthetic problem in the area of Lafayette Park. In its comments, the group indicated that tour buses and trucks parked along Pennsylvania Avenue obstruct the view of the White House from Lafayette Park more than signs along Pennsylvania Avenue. Although the primary focus of the proposed regulations is the maintenance of the aesthetics in Lafayette Park itself, the Park Service is concerned with maintaining as unobstructed a view as possible of the White House. For this reason, and in response to the ACLU's comments, we have initiated discussions with the District of Columbia, which has primary law enforcement jurisdiction on Pennsylvania Avenue. in an effort to eliminate parking, especially by buses and trucks, on the Avenue.

None of the commenters opposing the regulations seem to dispute the safety problems and resource damage done by large, unattended signs and structures. However, some commenters felt that vigorous enforcement of existing regulations would eliminate those problems as well as aesthetic concerns. The ACLU suggested that the National Park Service simply spend money to repair damaged areas and commented that other events do-equal damage to the parks.

The National Park Service has attempted to alleviate current problems in the Lafayette Park by utilizing existing regulations, as noted above. Starting in September of 1984, and after consultation with the ACLU, the Park Service began a program of weekly park inspections for the purpose of spotting items in violation of the regulations and removing them. However, this effort did not succeed in eliminating large, unattended signs and structures in Lafayette Park. This failure was due primarily to the fact that there are no regulations at present that prohibit structures or place limitations on signs in the Park. As discussed earlier, regulations prohibiting abandoned property are practically impossible to enforce because of present conditions in the Park. Therefore, additional regulations are necessary.

As to the ACLU's suggestion that the Park Service should allow the damage caused by large signs and structures and simply spend the money to repair it, the National Park Service does not believe that the Government, and ultimately the taxpayers, have a constitutionally-imposed duty to pay for unlimited destruction of park resources by a few individuals. The Supreme Court affirmed this when it found in Regan v. Taxation With Representation of Washington, 481 U.S. 540, 549, that a legislature's decision not to subsidize the exercise of a fundamental right does not infringe that right.

The Park Service realizes that signs properly supported will cause damage to the Park. These final regulations limit that damage by requiring signs to be smaller, and by prohibiting most structures. The Park Service believes that the regulations achieve a reasonable balance between the right to demonstrate and the right of other citizens to have the parks maintained in an intact condition.

As to the ACLU's comments that the Park Service has allowed activities on the Washington Monument Grounds on July 4th of each year that result in substantial damage to that area, the Park Service must point out that the Monument Grounds are not maintained at the same level of aesthetic quality as Lafayette Park. For example, softball, other games, and special events are allowed on the Monument Grounds but are not allowed in Lafayette Park. Further, the Park Service is taking well-publicized steps to change the July 4th program to minimize resource damage.

The ACLU also indicated that Lafayette Park suffers some damage every four years as e result of Inaugural activities. As pointed out by the ACLU, the Park Service has no veto power over these activities, the activities being congressionally and constitutionally mandated. Moreover, the groups causing that damage have been required to pay for all necessary repairs. Even when aesthetic and resource damage and threats to public safety were acknowledged, some commenters took the position that the Park Service is legally barred from addressing those concerns. The ACLU in particular argued that the exercise of First Amendment rights must predominate over other government interests. Many of those opposed to the proposed regulations took the position that destruction of aesthetic quality must be tolerated to accommodate First Amendment rights. Among these were numerous activist groups who signed a statement issued by a group called "Friends of First Amendment Rights in Lafayette and other Federal parks."

The National Park Service believes that the exercise of First Amendment rights is of great importance. However, it also believes, in accord with a multitude of court decisions, that reasonable limitations may be placed upon that exercise when necessary to meet legitimate government interests. It is beyond question that resource protection and public safety constitute substantial government interests. We also believe that the Supreme Court has indicated quite clearly that aesthetics also rises to the level of a legitimate government interest. Recently, the Court stated, in City Council v. Taxpayers for Vincent, 104 S. Ct. 2118, 2129 (19&4), that "the state may legitimately exercise its police powers to advance aesthetic values." More specifically, both the Supreme Court and this Circuit have recognized the substantial government interest in "maintaining the parks in the heart of the capital in an attractive and intact condition." White House Vigil for the ERA Committee v. Clark, 746 F.2d 1518, 1529 (1984), quoting Clark v. Community for creative Non-Violence, 104 S.Ct. 3065, 3070 (1984). The Court of Appeals went further in saying "Finally, the government has a substantial interest in the preservation and enhancement of the human environment, aesthetics are a proper focus of governmental regulation." 746 F.2d at 1528.

The National Park Service believes that these decisions sanction reasonable limitations upon activity that diminishes the aesthetic quality of, and that does damage to, Lafayette Park. However, many of the commenters who opposed the proposed regulations stated that they believed that these regulations

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did not represent such reasonable limitations.

Several commenters opposed the size restrictions placed upon signs in the proposed regulations. Those commenters argued that large signs are necessary in order to have their messages read from a long distance, especially from the White House, and are necessary for complex messages.

The National Park Service has documented that a four-foot by four-foot sign can be read from a considerable distance. It may be true that, depending on the size of the printing, a sign that size could not be read from the White House sidewalk. However, signs as large as three feet high and twenty feet long are allowed on the White House sidewalk itself. Further, the Park Service does not believe that it has a constitutional obligation to ensure that a demonstration sign can be read from any arbitrary distance chosen by a demonstrator or that the sign be large enough to accommodate any lengthy and complex message an individual can imagine.

Further, the ACLU and the Sierra Club stated that they saw no reason for a limitation on the thickness of allowable signs. The National Park Service believes that a limitation on the thickness of signs is necessary to prevent individuals from erecting signs that are, in reality, structures, for example, a "sign" four feet long, four feet wide and four feet deep. In fact, demonstrators have argued in court that structures that are four-sided and that have been used as living accommodations are "signs". Further, the quarter-inch requirement assures a relatively light sign that can be moved by demonstrators when they leave or when park maintenance is necessary. However, the Park Service is revising the proposed regulations to exclude from the thickness provision braces reasonably required to support lawful signs so long as the braces are not used to form an enclosure of two or more sides. This allows demonstrators to properly brace their sign without fear of running afoul of these regulations.

The ACLU also suggested that the Park Service allow signs to be up to six feet in height if it is going to allow them to be elevated to a height of six feet. We must reject this suggestion. The Park Service is proposing a regulation that would allow signs to be elevated to six feet to accommodate supports that might raise a sign above the four-foot level. The purpose of this is to accommodate demonstrators and public safety concerns, not to create a loophole through which billboard-type signs again can creep into the Park.

While agreeing that signs should be attended, most commenters opposing the proposed regulations disagreed with the requirement that a person stay within three feet of his or her sign. The ACLU suggested that there be exceptions for demonstrators who, for example, wish to cross the street to chat with passersby, retrieve a hat blown off by the wind or go to the restroom. Another commenter suggested that sign owners merely be required to stay within the Park or on the surrounding sidewalks.

The Park Service has carefully considered these comments but can think of no regulatory alternative that would assure that signs are, in fact, attended. It would be impossible to enforce a regulation that contained the kinds of exceptions suggested by the ACLU or the suggestion that sign owners be somewhere in the Park or on surrounding sidewalks. Further, a regulation requiring persons to be in physical contact with their signs at all times on the White House sidewalk, a regulation upheld by this Circuit, has been in effect for several years and has not discouraged the thousands of demonstrators who use that site each year. The most effective enforcement scheme is to require physical contact with signs. There is no doubt in that situation as to the ownership of signs. However, the National Park Service did not wish to prevent individuals from moving a short distance away from their signs to conduct other demonstration activities.

Several commenters argued that the Park Service has regulations capable of dealing with any attendance problems now occurring in Lafayette Park. While there is a regulation prohibiting the abandonment of property in the parks, the regulation has been ineffective in preventing persons from leaving signs and structures unattended for long periods in Lafayette Park, as discussed above.

Another commenter suggested an exception to the attendance requirement that would allow demonstrators to stack and store signs for later use. However, the Park Service believes that any attendance requirement must be applied across the board to standing or stored signs.

Several commenters opposed the limitation on the number of signs any one demonstrator may have in the Park at any one time. The ACLU complains about the limitation on "the quantum of a person's speech". The National Park Service does not believe that an individual has a constitutional right to an unlimited "quantity" of free speech regardless of the impact of that speech on other interests. Without a limitation on the number of signs, a few demonstrators would be free to occupy the whole of Lafayette Park to the exclusion of everyone else and to the detriment of park resources.

Several commenters also opposed the proposed prohibition on structures in Lafayette Park. The ACLU indicated that such a prohibition is not necessary and that it is overbroad. While admitting that large, heavy structures such as desks, bookcases, and porcelain toilets "may" be inappropriate in Lafayette Park, the ACLU argued that present regulations are sufficient to keep these items out of the Park. The National Park Service disagrees.

There are no regulations that prohibit structures in Lafayette Park. The Park Service has been able to deny permits for such massive construction projects as public libraries and spaceship landing facilities under regulations which allow the Park Service to deny permits for activities that cannot be reasonably accommodated in the Park. However, it is unclear whether this regulation could be applied to a desk or porcelain toilet. At any rate, the Park Service believes that a more specific regulation gives more specific notice to the public concerning items that are prohibited.

Another commenter suggested that the term "structure" be defined. While we believe that the term has a generally understood meaning, we have revised the regulations to give the public notice of the usage of the term by providing examples of prohibited structures, and by listing those items that are not considered to be "structures".

The ACLU and the Sierra Club also argued that the proposed prohibition is overbroad as it would also prohibit well-recognized items such as tables for literature and folding chairs. The Park Service does not believe that use of tables and chairs is protected under the First Amendment, and even if it were, there is ample government interest in aesthetics, park protection and public safety to support a neutral, across-the- board ban on such use. However, in an effort to respond to the concern about a prohibition of traditional symbolic materials, we have revised the regulations so as to allow any structure in Lafayette Park that is being hand-carried. This exception, then, would allow symbolic structures, such as coffins and cages, to be carried in the Park.

In its comments, the ACLU also argued that the Park Service, not the demonstrators, is responsible for the dump-like: appearance of the Park. We

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do not believe this argument to have merit. For example, the ACLU faults the Parks Service for not seizing chairs, the exact items that the ACLU later characterizes as "well-recognized" demonstration materials. The group also criticized the Park Service for not removing other items, many of which the record shows have been seized by the Park Service and then repeatedly returned to the Park by their owners. Finally, the ACLU criticized the Park Service for not allowing demonstrators to construct and repair their signs in Lafayette Park. We do not believe that the National Park Service must allow Lafayette Park to become a construction area.

Ten persons wrote to the National Park Service opposing the proposed regulations because the Department of the Interior allegedly did not enforce building height laws to prohibit the construction of Metropolitan Square on 15th and F Streets. None of the comments contained substantive criticisms of the specific provisions contained in the proposed regulations. Since the building of Metropolitan Square is unrelated to anything in the proposed rulemaking, we simply note these commenters' opposition in this rulemaking.

Several commenters, including the ACLU, suggested a public meeting or private negotiations concerning this rulemaking effort. It would be inappropriate in this instance to have private negotiations with any one individual or group. This rulemaking has been thoroughly and intelligently discussed in the media, through editorials, articles and letters to the editor, and thoughtful comments have been received from all sides of the question. The National Park Service does not believe that a public meeting would contribute any comments or insights not already expressed and addressed here.

Federal Register Vol. 51, No. 43 - Continued

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