DEPARTMENT OF THE INTERIOR

National Park Service

36 CFR Part 50

National Capital Parks Regulations; Lafayette Park; Structure Prohibitions; Sign Limitations

AGENCY: National Parks Service.

ACTION: Proposed Rule.

SUMMARY: This proposed rule amends the National Capital Parks regulations in § \50.19 of 36 Code of Federal Regulations to prohibit structures, with certain exceptions, and to place reasonable limitations on the size and number of signs placed or set down 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 large structures that interfere with the view of the White House, occupy an extensive amount of space and generally conflict with the historic and natural of the Park. Furthermore, concerns have been raised about damage to the park and public safety. The proposed rule addresses the uses of Laayette Park through a balancing of First Amendment freedoms of Speech and expression against the rights of the park visitors to utilize this historic park for traditional recreational and aesthetic purposes.

DATE: Written comments, suggestions, or objections regarding the proposed rule will be accepted until October 21, 1985.

ADDRESS: Written comments should be sent to Regional Director, National Capital Region, National Park Service, 1100 Ohio Drive, S.W. Washington, D.C. 20242

FOR FURTHER INFORMATION CONTACT:

Sandra Alley, Associate Regional Director, Public Affairs, National Capital Region, National Park Service, 1100 Ohio Drive, S.W. Washington, D.C. 20242, telephone (202) 426-6700; Richard G. Robbins, Assistant Solicitor, National Capital Parks, Office of the Solicitor, Department of the Interior, Washington, D.C. 20240, telephone (202) 343-4338.

SUPPLEMENTARY INFORMATION:

I. Background

1. History of Lafayette Park

Lafayette Park, originally know as President's Park, is a rectangular area of approximately seven acres of land situated directly north of the White House on Pennsylvania Avenue. It is Bounded on the east by Madison Place, north by H Street, and West by Jackson Place. The property was one of the first parcels of land donated by the original patentees to the District Commissioners for the formation of the Federal City (later, Washington) in 1971. The site of what is now Lafayette Park (Park) was originally included in the area known as the President's House and the President's Park, according to the plans of Major Pierre L'Enfant. The entire area extended from 15^th to 17^th Streets, N.W., and from H Street on the north and to the Potomac River on the South. In the early 1800's, President Thomas Jefferson authorized the Park's separation from the President's House, intending its use for local residents and visitors to Washington. The Boundaries of the Park have not been altered up to the present day.

In 1824, the grounds were improved and walks laid out in the square on the occasion of the visit of the Marquis de Lafayette, the French general and hero of the American Revolution.

The square was known as the "President's Park" until 1834, when the name "Lafayette Square" was adopted. Since 1933, when control of the National Capital Parks was returned to the Interior Department, the term "Lafayette Park" has been the preferred name and has been adhered to by the National Park Service.

2. Unique Features of the Park

Five memorial Statues, specifically authorized by legislation of Congress, honoring General Andrew Jackson and four foreign heroes of the American Revolution, grace Lafayette Park. The equestrian statue of General Andrew Jackson, the second one of its type to be cast in the United States, stands in the center of the park. It was dedicated by Senator Stephen A. Douglas in 1853. The heroic bronze statue of General Lafayette, which stands at the southeast corner of the Park, was dedicated in 1891. The second Frenchman honored in the Park, is the Comte de Rochambeau, who led the French Expeditionary Force to America during the Revolution. President Theodore Roosevelt dedicated the Rochambeau statue, which stands at the southwest corner of the Park, in 1902. The statue of Thaddeus Kosciuszko, the Polish engineer who designed some of America's fortifications during the Revolutionary War, was dedicated in 1910 and stands at the northeast corner of the Park. The fifth statue, dedicated by President William Howard Taft in 1910, is that of Baron von Steuben, the Prussian disciplinarian and Inspector General of the Continental Army. It stands at the northwest corner of the Park.

In addition to honoring these five notable figures of America's past. Lafayette Park functions as a formal garden park of the meticulous landscaping with flowers, trees, fountains, walks and benches. This aesthetic aspect of the Park has a rich history, going back over 130 years. In 1851, President Millard Fillmore endorsed the appointment of A.J. Downing, one of the most celebrated landscape architects of the day, to prepare plans for the landscaping of Lafayette Square and other park areas of the Nation's Capital. Downing is credited with the landscape plan of Lafayette Park, which has generally been adhered to over the years with only slight revisions. The central theme then consisted of wide gravel paths leading to the statue of General Andrew Jackson as smaller meandering walks went past beds of roses and other flowers.

A second major change to take place in the landscaping of Lafayette Park was undertaken by the National Capital Parks in 1936 and 1937. The overall changes made during this period were the removal of the bronze urns to their present-day locations, the redesigning and widening of the walks, the relocation of trees and shrubbery, the closing of small gravel paths and the relocation of flower beds. The overall effect enhanced the beauty of the original Downing plan and made the Park more accessible to those people for whom the Park had originally been intended by President Jefferson -- visitors and Washington residents.

Money was appropriated by Congress during the Presidency of John F. Kennedy for thee purpose of installing decorative fountains in the Park. By 1969, a water sprinkler system for maintenance of the Park, as well as attractive interior brick walkways, were added to Lafayette Park. Improvements to the Park continue up to the present day. A new Park Lighting system, historically accurate to the lamps used in the mid 1800's, was installed in 1985.

Lafayette Park is appreciated by Washington, D.C. residents and visitors alike as a unique natural and historic site. Residents and workers come to Lafayette Park each day to play chess, eat a picnic lunch, stroll through the landscaped setting, or sit quietly on a bench and read a book. Visitors come to the Park for many of the same reasons in addition to touring the gardens and the monuments. Lafayette Park provides an unequaled setting for viewing the north side of the White House. During the summer months, thousands of persons visit the Park each day.

The National Park Service has long recognized the unique environment and sensitive nature of Lafayette Park as a major component in the historic setting of the White House and the national significance of the five major memorials which it contains. The Park Service has neither sponsored nor permitted special events in Lafayette Park for almost ten years. Unlike Farragut Square, where the Park Service permits noontime concerts, or the Ellipse, where the Park Service co-sponsors the National Christmas Pageant of Peace, Lafayette Park has been kept free of all such Park Service-sponsored activities.

3. Current Situation in Lafayette Park

Being located across from the White House, Lafayette Park is a popular location for demonstrations of every sort. 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. Groups numbering over twenty-five participants must apply for a permit to demonstrate.

At present, the National Park Service has no specific regulations governing the number and size of signs that can be used by those demonstrators. Further, the Park Service has only limited regulations governing the use of structures.

Due to this lack of specific regulatory prohibitions, Lafayette Park, during the past two years, has become increasingly dominated by large, semi-permanent billboard-type signs and massive structures 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, there has generally been a large number of such signs and structures in the Park at the same time. In August of 1984, for example, there were one hundred 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. Amazingly, eighty of the signs 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 hundred or so signs that continuously occupy a large portion of Lafayette Park.

In July of 1985, there were seventy-eight 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 1981. In addition to signs, there were various structures in the Park, including pyramids, chairs, and a grocery cart, and desks.

Having a large number of immense signs and structures in the Park has had a substantial impact on the enjoyment of the Park by the visiting public. 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 Park, substantially interfering with the view of the Whit 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 countless large signs and structures amount to a visual blight and generally create an offensive and unsightly appearance in an otherwise pristine and historic park area. Over the past year, the National Park Service received at least sixteen written requests for some action against the visual blight in Lafayette Park. Almost every request acknowledges the importance of exercising First Amendment rights in the Park, but then pleads for some balance between the rights of demonstrators and those of visitors to enjoy the beautiful and historic park. Typical of these requests is the following from a Washington, D.C. woman:

I am appalled that Lafayette Square is being permitted to become the eyesore of our Nation's Capitol (sic). The construction of highway-size billboards and massing of large signs are obliterating the beautiful view and popular photographic site of the White House from the Square and destroying the vista of the Park from Pennsylvania Avenue.

I have no quarrel with people peacefully exercising their First Amendment right of free speech if they believe the current administration is pursuing politics with which they do not agree. I do, however, feel it is exceedingly reasonable to require that any signs or posters be physically carried / worn by those espousing the views, and that such demonstrators be required to keep moving in an orderly fashion that does not interfere with pedestrian traffic rather than the present "camping-out" method.

Further, conversations with United States Park Police officers assigned to Lafayette Park during tourist seasons reveal that they generally receive at least one and sometimes as many as four or five oral comments each day 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, some commentators have expressed concern about the safety of large billboard-type signs, a concern with merit. 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 are 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 most safely secured only by placing numerous stakes in the ground causing damage to the turf and the Park's inground 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 of the Park 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 wherever they have been.. In addition, bricks making up the sidewalks through the Park have been crushed and damaged by large structures. In short, Lafayette Park has acquired a generally unkempt and unsightly appearance due to the activities of a handful of demonstrators who have added more and more signs, structures and property to their demonstrations.

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

Further, it appears that the "development" of Lafayette Park will only worsen in the future. Recently, an individual requested a permit to establish a library, complete with meeting rooms, in the Park. The same individual requested a permit to erect facilities necessary for an actual abortion and a Christmas day live birth. Another individual requested a permit for a spaceship and spaceship landing facilities. This "building boom" in Lafayette Park threatens aesthetic interests, safety interests, and park resources.

Regulatory Changes

In order to meet substantial government interests in aesthetics, public safety, and preservation of park resources, the National Park Service is proposing a rule that

Would limit the size of signs permitted to be set down in Lafayette Park, limit the number of signs one individual may place down in the Park, and require that those stationary signs be attended. As noted above, there are no specific limitations on the number or size of stationary signs allowed in the Park at present. Further, enforcement of existing abandoned property regulations has been ineffective in curing the problem of absentee owners of signs and structures.

The National Park Service is not proposing to prohibit demonstrations in Lafayette Park. Nor is it proposing to place any limitation on signs that are hand-carried. The park Service is merely proposing to place reasonable, content-neutral limitations on signs placed down in Lafayette Park so that visitors might be able to enjoy the history and beauty of the Park while demonstrators continue to have ample avenues of communication. In addition, the proposed rule would apply only to Lafayette Park and not to the many other park areas in close proximity, for example, the Ellipse on the south side of the White House.

Specifically, the proposed rule would limit the size of signs permitted to be placed or set down in Lafayette Park to the dimensions of four feet in height, four feet in width and one quarter inch in thickness. Such a size would prohibit the immense billboard-type signs that now dominate Lafayette Park, which substantially impact the aesthetic values of the Park, while creating safety concerns and seriously damaging park resources.

In order to arrive at a permitted sign size that fully accommodates the needs of demonstrators, the National Park Service Sign System Specification Manual ("Manual") was consulted. The manual is utilized by National Park Service personnel to determine the sign size and lettering necessary to be adequately seen by pedestrian traffic. Signs utilized by the Park Service contain directions, instructions, prohibitions and warnings.

Utilizing standards set forth in the Manual, it was calculated that a sign four feet by four feet could contain at least ten lines of writing in a letter size that could be seen up to one hundred feet away from the sign. The letter size and distance from the sign indicated here is the maximum recommended for pedestrian traffic in the Manual.

On the basis of this research, it was determined that a four foot by four foot sign offered an effective means of communication for demonstrations. Further, the dimensions stated conform to a standard size of plywood commercially available. While there are no magic dimensions above which damage will certainly occur and below which government interests will certainly be satisfied. The Park Service has attempted to accommodate the needs of both visitors and demonstrators with this selection of permissible sign size.

In July of 1985, forty-four percent of the seventy-eight signs located in Lafayette Park had a message of ten or less words; of these, fifty percent had messages of five words or less. For example, one eight foot by eight foot sign had four words written on it: "Wanted Wisdom and Honesty"; another sign four foot by eight foot, simply had the initials "UFO" written on it, accompanied by what appeared to be symbols; a four foot by six foot sign read simply "Freedom of Religion"; and finally, a three foot by six foot sign read "Sue Your Government Now". The National Park Service does not believe that any serious impediment to free speech would result by requiring these varied messages to be placed on four foot by four foot signs.

To further accommodate individuals and groups who wish to have larger signs, the National Park Service has exempted all hand-carried signs from these size limitations. This allows demonstrators to have large signs, which includes banners, but assures that the signs will not cause damage to park resources because they will not be placed on the ground, will not create safety concerns because they will be held by demonstrators, and finally, will not create aesthetic problems because they can be easily moved and will not be permanent in nature.

To avoid circumvention of the size limitations on stationary signs, the proposed rule would also prohibit a conforming-size sign to be elevated to exceed a height of six feet above the ground. It would do little good to place limitations on the height of stationary signs only to have them again become billboard size by utilizing posts or other means of elevation. In addition, such elevation over six feet could result in additional safety problems.

Also, to avoid circumvention of the size limitations, the proposed rule prohibits the arrangement or combination of stationary signs so as to exceed the permitted size limitations. Again, it would be useless to institute sign size limitations if those limitations could be easily circumvented by combining two or more size so as to create a billboard effect.

To avoid the problem of one individual utilizing a great deal of space with unlimited number of signs, the National Park Service further proposes to limit the number of stationary signs that a single individual can have in Lafayette Park at one time. Present regulations do not prohibit a single individual from monopolizing any amount of this national park that attracts thousands of people each year by just adding sign after sign to his or her collection. The proposed rule would eliminate this unfair usurpation of park land by limiting each person to two stationary four foot by four foot signs at any one time in Lafayette Park. The Park Service believes that this is a reasonable accommodation of both visitors and demonstrators.

In addition to limiting the number of signs that an individual may have in Lafayette Park, the proposed rule requires that stationary signs in the Park be attended. The term "attended" is defined in the proposed rule as being within three feet of a sign. This requirement, along with the limitation on the number of signs an individual may have, would prevent the massive accumulation of signs by one or two individuals that is now occurring in Lafayette Park. Further, an attendance requirement assures that signs can be moved temporarily for routine park maintenance such as grass cutting, trimming and watering. Finally, the requirement that signs be attended enables park personnel to distinguish from active demonstrations and abandoned signs or property.

In addition to restrictions on the use of signs in Lafayette Park, the National Park Service proposes to prohibit the use of structures in the Park, with the exception of certain speakers platforms.

Structures have substantially intruded upon visitor's enjoyment of Lafayette Park. The lack of specific restrictions in existing regulations has led to massive structures being placed in the Park. These structures substantially detract from the view of the Park and monopolize large areas of the seven acre ground. Further, it has been the experience of the Park Service that some demonstrators have accumulated a large number of items in the Park, items including piles of rubbish, doors and desks, claiming that these are permitted structures. Rather than communicating a message, these items have generally evoked angry complaints from citizens. Finally, the presence of structures of any sort in the fragile environment of Lafayette Park causes resource damage.

For these reasons, the Park Service initially considered a total ban on all structures in the Park. Consideration of less restrictive alternatives yielded no regulatory scheme that would allow structures to be placed in the Park while avoiding turf damage and the visual blight created by some demonstrators.

However, to avoid working a hardship on large demonstration groups that require a platform so that speakers can be heard and seen effectively by demonstration participants, the Park Service in the proposed rules makes an exception for temporary speaker's platforms that are reasonably necessary when a demonstrating group numbers one hundred or more persons. For a group numbering less than one hundred persons, a small, temporary "soapbox" platform would be allowed. Although the Park

Service realizes that some damage to park resources may be done by these structures, it believes that it has an obligation to balance the needs of demonstrators with the needs and rights of the general public. Further, any harm that may be caused by the large speaker's platforms will be minimized by their short duration in the Park as large demonstrations generally do not remain in the Park longer than one day.

3. Conclusion

The National Park Service believes that the proposed regulatory restrictions, taken as a whole, accomplish the purpose of restoring Lafayette Park as a historic site and formal garden while still allowing ample avenues of communication for those who wish to demonstrate in the Park or elsewhere in the vicinity of the White House. The Park Service believes that it has a responsibility to maintain a high level of aesthetic quality in the parks under its administration, consistent with its duty to allow citizens

An opportunity to express their First Amendment rights. Further, the Park Service would be negligent in its responsibilities to all citizens if it did nothing to curb increasing resource damage or if it ignored safety concerns. Moreover, the National Park Service believes that there is clear legal authority for promulgation of these regulation as they are content-neutral, leave open ample alternative avenues of communication, and are narrowly tailored to meet substantial government interests. The substantial government interest in safety, resource protection and aesthetics has been affirmed repeatedly by the Courts. In fact, the Supreme Court has recognized aesthetics as a substantial government interest in at least two cases decided within the past two years.

It is not easy to draw the lines established in the proposed rule. For this reason, the National Park Service especially invites comments from all segments of the public, visitors and demonstrators alike, on this proposal.

Public Participation

The policy of the Department of the Interior is, whenever practicable, to afford the public the opportunity to participate in the rulemaking process. Accordingly, interested persons may submit written comments, suggestions, or objections regarding the proposed rule to the address noted at the beginning of the rulemaking.

Drafting Information

The following persons participated in the writing of this rule: Richard G. Robbins, Patricia S. Bangert, and Steven A. Hemmat, Office of the Solicitor, U.S. Department of the Interior.

Paperwork Reduction Act

The information requirements contained in §50.19 of Part 50 have been approved by the Office of Management and Budget under 44 USC 3501, et seq., and assigned clearance number 1024-0021.

Compliance With Other Laws

The National Park Service has determined that this document is not a major rule requiring preparation of a Regulatory Impact Analysis under Executive Order 12291. The National Park Service also has determined that the proposed rule will not have a significant economic impact on a substantial number of small entities and therefore, does not require a small entity flexibility analysis under 5 USC 601. The proposed rule would merely place reasonable limitations on the use of structures and signs in Lafayette Park. The rule will have no significant impact on any aspect of the economy.

The National Park Service has further determined that this proposed rule is not a major Federal action significantly affecting the quality of the human environment under the National Environmental Policy Act, 42 U.S.C. 4332, et seq.

List of Subjects in 36 CFR Part 50

National parks, National Capital parks.

PART 50 -- NATIONAL CAPITAL PARKS REGULATIONS

In consideration of the foregoing, it is proposed to amend 36 CFR Part 50 as follows:

The authority citation for part 50 is revised to read as follows:

Authority: 16 USC 1, 3, 9a, 462 (k); D.C. Code section 8-137 (1981) and D.C. Code section 40- 721 (1981)

Section 50.19 is amended by redesignating paragraphs (e) (11) and (14) as (e) (12) and (15) and adding a new paragraph (e) (11) to read as follows:

§ 50.19 Demonstrations and special events

(e) ***

(11) The following are prohibited in Lafayette Park:

The erection or placement of structures of any kind except for the structures described in paragraphs (e)(11)(I)(A) and (B) of this section.

(A)When a demonstration involves one hundred (100) or more persons, a temporary speaker's platform as is reasonably required to serve the demonstration participants is allowed provided that only one speaker's platform is allowed per demonstrating group and provided further that such speaker's platform is authorized by a permit issued pursuant to paragraph (b) of this section.

(B) When a demonstration involves less than one hundred (100) persons, a temporary :"soapbox" speaker's platform is allowed provided that only one speaker's platform is allowed provided that only one speaker's platform is allowed per demonstrating group and provided further that the speaker's platform is no larger than two (2) feet in length, two (2) feet in width, and two (2) feet in height.

Hand-carried signs are allowed regardless of size.

Signs no larger than four (4) feet in height, four (4) feet in width and one-quarter (1/4) inch in thickness may be placed or set down in Lafayette Park provided that no individual shall have more than two such signs in the park at any one time and provided further that such signs must be attended at all times, the term "attended" being defined as an individual being within three (3) feet of his or her sign(s), and provided further that such signs may not be elevated in a manner so as to exceed a height of six (6) feet above the ground at the highest point.

Signs placed or set down in the Park may not be arranged or combined in a manner so as to exceed the size limitations in paragraph (e)(11)(ii)(B) of this section (for example, two four foot by four foot signs may not be combined so as to create a sign eight feet tall and four feet wide and three such signs may not be arranged to create a sign four feet tall and twelve feet wide, etc.).

William P. Horn,
Assistant Secretary for Fish and Wildlife and Parks.