WE GET MORE PROTESTERS THAN ANY OTHER CITY IN THE WORLD. THERE HAVE BEEN GREAT AND AWFUL MOMENTS. BEHIND THE SCENES,TWO MEN DECIDE WHAT YOU CAN AND CAN'T DO.
THE WASHINGTONIAN MAGAZINE, FEBRUARY, 1996, by Larry Van Dyne
EVERY SUMMER, AN INTERIOR DEPARTMENT mail carrier delivers to Room 6556 of the agency's Washington headquarters an ordinary picture postcard. On the front, there's usually some glorious western landscape from one of America's national parks--a geyser in Yellowstone, perhaps, or a sunset over the Grand Canyon. On the back, the handwriting is so familiar that Rick Robbins, the occupant of Room 6556, can recognize at a glance that it's the latest in a string of cards he's been getting every summer for more than a decade. Robbins is a 51-year-old lawyer--his official title is assistant solicitor--who handles the legal work for the National Park Service in the Washington area. The Park Service administers the White House and its grounds. the Mall, the Ellipse, and Lafayette Park--all at the symbolic center of American Government and used by thousands of citizens each year for political protests. That makes Robbins a central figure in crafting the rules governing what these protesters can and can't do.
He's been fine-tuning these rules for 25 years; they now cover ten pages of small type in the Code of Federal Regulations (Title 36, Chapter 1, Section 7.96). They're designed to balance the guarantees of the Constitution's First Amendment (free speech, right of peaceable assembly, right to petition the government) with the desire that Washington's "monumental core" remain orderly and attractive. And that raises more is sues than you can imagine-from the legality of building an igloo in Lafayette Park and the size of protest signs on the White House sidewalk to how many portable toilets are needed for a demonstration and who pays for damages to the grass on the Mall.
The postcard is from Art Spitzer, a New York-born attorney who has lived in Washington since the mid-1970s and a man who likes to spend his summer vacation hiking and camping in the national parks. But the more important thing to know about Spitzer--who was trained in the law at Yale--is that for the past 15 years he has been the legal director of the Washington office of the American Civil Liberties Union. The ACLU has been an unyielding watchdog of First Amendment freedoms since the 1920s, which means that every time Rick Robbins draws up one of his rules for protests, Art Spitzer is right there with a lawsuit suggesting it is too restrictive. "Since I arrived in this office in 1970," says Robbins, "there has not been a single day when we did not have at least one First Amendment suit against us." Spitzer's postcard, which usually reports that he is on guard against threats to the First Amendment in the wilderness, is a running joke between two men who have developed a mutual respect. They see themselves in fundamental agreement about the constitutional right of Americans to bring their grievances to Washington's powers that be.
Their tug of war is just one of the hidden forces that determine how protests--and other events on the Mall--are acted out. Why can you tie a yellow ribbon around an old oak tree but not around the Washington Monument? Why do feminists wear white when they march for women's rights? Why do some protesters come outfitted with cloth diapers? Why did Tom Hanks get to plunge into the Reflecting Pool in Forrest Gump while Arnold Schwarzenegger didn't in True Lies? Why do volunteers always pick up and turn the AIDS memorial quilt every couple of hours? What do Beavis and Butthead have to do with the First Amendment?
SAVING WHALES AND SAVING SOULS
CAPITAL CITIES ALWAYS ATTRACT people with causes--whether they come to speak in London's Hyde Park or to brave the authorities in Beijing's Tiananmen Square--but Washington may well have more demonstrations, marches, rallies, and vigils than any place in the world. The Park Service got permit applications for about 2,000 such events last year.
The number is far greater than a generation ago, and political protests are now so common that many Washingtonians give them the same notice as elevator music. Tourists pay the most attention, frequently stopping for a snapshot, while
teachers have been known to bring their students to
demonstrations on field trips.
Protesters have been coming to Washington for much of its history. During the economic depression of the 1890s, Ohio businessman Jacob Coxey led an "army" of unemployed men into the city, where he was arrested for trespassing on the grounds of the Capitol. In the early 1900s, women's groups conducted several marches to demand voting rights; in 1916, a number of socially prominent Washington suffragists were among those arrested and sent to jail for picketing the White House.
In 1925, some 50,000 members of the Ku Klux Klan, in robes but without masks, paraded through the city carrying American flags. And during the Great Depression of the 1930s, a "bonus army" of 20,000 World War 1 veterans marched into Washington demanding advance payment of a promised federal bonus; after several weeks their encampment along the Anacostia River was burned by Army troops, and they were run out of town.
ASIDE FROM THE MASSIVE DEMONSTRATIONS against the Vietnam War in the 1960s and '70s, many of the biggest demonstrations since World War II were aimed at calling attention to the grievances of minorities. Black Americans have marched on Washington several times, from the gathering in 1963 at the Lincoln Memorial where Martin Luther King delivered his famous I-Have-a-Dream speech to last year's Million Man March.
Women's groups have paraded through the streets several times since the mid-1970s to support abortion rights and the Equal Rights Amendment. Gays and lesbians have sponsored two big marches, the most recent in 1993, and several times have laid out the huge AIDS quilt.
Religious conservatives have taken to the streets of Washington as well. An antiabortion "March for Life" has drawn thousands each January since the Supreme Court's decision legalizing abortion in 1973. One evangelist is planning his second "Washington for Jesus" rally this summer, and another has approached the Park Service seeking a date to assemble a million Christian men on the Mall.
Washington also has become a stage where foreign conflicts are played out. In 1987, some 200,000 Americans rallied on the Mall to protest the refusal of the Communists to grant exit visas to Soviet Jews. In the 1970s, warring factions of Iranian students--some supporting the shah and others opposing him--marched through the streets clashing with each other and with police. Those confrontations grew so ugly--students poured gasoline on a Park Police horse and were stopped just short of lighting it--that a "cooling off' period was imposed before the students were allowed to march again.
BEYOND THE 40 OR 5O MAJOR demonstrations each year are hundreds of smaller ones that attract only a handful of people. Saving the whales, feeding the homeless, remembering John Lennon, protecting pets, demanding money for AIDS research, promoting vegetarianism, celebrating wetlands, demanding an end to Star Wars, begging for the return of major league baseball--the protesters come in "every season" and for "every reason," a Park Service official once marveled.
Remember too that political protests are just a part of the crush of events competing for space on the Mall and around the White House. Presidential inaugurals get a turn every four years, and every year there's time set aside for official events like wreath layings at the memorials, the Cherry Blossom Festival, the Easter Egg Roll, the Pageant of Peace, the Smithsonian's Festival of American Folklife, and the Fourth of July fireworks spectacle.
Once in a while, too, the parks are taken over for a celebration of some national triumph or moment of thanksgiving, like the return of America hostages from Iran in 1981 or the celebration of the military victory over Iraq in 1991. The Park Service also issues dozens of permits each year for non-political "special events," including sports activities, fundraisers, band concerts, private parties, and weddings.
If you have your calendar handy, you may want to mark down these events coming soon to the Mall near you. The Race for the Cure, a major breast-cancer fundraiser, will be back in June; the AIDS quilt will be displayed in October; George Washington University, embarrassed last year when rain cut short its outdoor commencement and it had no alternate site, will try again on the Ellipse in May; and the Smithsonian is planning a big outdoor celebration of its 150th anniversary beginning in late July.
Or try these: the annual rare-breed dog show (April), the national finals of a student auto skills contest sponsored by the Ford Motor Company and the American Automobile Association (June); and an appearance by the Wildcatdets dance team of Humble, Texas (March).
There's also a permit request in for a tent party on the Mall in April to celebrate the bar mitzvah of a son of the ubiquitous political analyst Norman J. Ornstein.
SEE YOU IN COURT
RICK ROBBINS WAS 24 YEARS OLD and just out of law school when he moved to Washington to take a job at the Interior Department in the summer of 1970. The son of a Houston petroleum engineer, he'd gone to Colorado State and the University of Texas as an undergraduate, then stayed in Austin for law school.
Though he had never made it to Washington for any of the big anti-Vietnam War demonstrations of the late '60s, he'd had plenty of experience in the antiwar movement. He had marched against the war on campus both in Colorado and Texas, was active in the
radical Students for a Democratic Society, had once applied to his draft board for conscientious-objector status, and wore his hair long in the fashion of the day.
Robbins intended to stay at Interior just long enough to learn something about water law, then head back to Colorado and enter private practice. Figuring that a government lawyer ought to project a buttoned-down image, he got a haircut as soon as he pulled in to Washington--short enough that there was a ring of white, untanned skin visible around his neck when he reported for work.
He was surprised to team that his first assignment would be as the Park Service"s liaison with the antiwar protesters who were descending on Washington more and more frequently. He had lucked into an ideal job: "I had no idea I could make a living negotiating demonstrations." And it would require a change in personal style--so as not to appear too Establishment, the government wanted him to grow his hair long.
The level of anger and violence in portions of the antiwar movement in those days makes the protests of the 1990s seem tame. J.J. McLaughlin, who now heads the special forces branch of the US Park Police, remembers working his first demonstration as a young officer and having a protester taunt him about being "a pig behind Foster Grants." Demonstrators some times hurled rocks and bottles into police lines, and the flags and benches ringing the Washington Monument were burned-with repairs to the benches courtesy of pacifist Amish carpenters. The first few feet of the
monument got hit so often by antiwar graffiti that the Park Service kept a sandblasting team at the ready.
It was such a wild time that the longhaired Robbins ("our boy with the page boy" as a supervisor called him) would sit around in the Park Service"s mobile command trailer assessing the prospects for violence by counting how many helmets and gas masks were in the crowd.
The Park Service, which includes the Park Police, did not always handle demonstrations with finesse. Some in the agency believed antiwar protests were not a legitimate use of park lands, and some officers displayed deep animosity toward the longhaired demonstrators. "We had one policeman who emptied a canister of Mace and split a pair of pants kicking ass in nearly every demonstration," says Robbins, and another who stood poised with his night stick to crack the skull of any hippie caught picking tulips in the park. Another problem: The Park Service had no consistent code of regulations about what it would and wouldn't allow.
AS THE MIDDLEMAN BETWEEN THE Park Service and the anti-war movement, Robbins often found himself negotiating with protest leaders. If they planned to engage in civil disobedience, the Park Police liked to make arrangements in advance about the arrests--less chance that anybody on either side would get hurt.
These negotiating sessions did not always go well, as with a meeting in 1971 with Rennie Davis, then renowned as a member of the Chicago Seven, who had been indicted for their roles in the antiwar protests at the 1968 Democratic Convention. Davis was
planning to march his people from the grounds of the Washing(on Monument to the front of the White House, where he wanted to stage 3,000 arrests on Pennsylvania Avenue. Robbins and the Park Service wanted to move the arrest site farther east, in front of the Treasury Department, prompting Davis to storm out of the
meeting with a promise to "see you in the streets."
After the meeting, Robbins and the group's young lawyer went out to dinner and ended up later with a bunch of people at an apartment near Dupont Circle, where somebody suggested a potential solution to the impasse over the arrests. They'd dump all their marijuana on the table and have a joint-rolling contest between the antiwar lawyer and Robbins--best two out of three. If Robbins won, Rennie Davis would come back to the negotiating table and work something out about the arrests--a condition Davis agreed to by phone.
"He rolled for the peace movement, and I rolled for the government." Robbins says. "And the government won." A few days late, Park Police peacefully made about 800 prearranged arrests in front of Treasury.
The Park Service, convinced that demonstrations on park land in Washington were here to stay, began trying to approach them more professionally. The Park Police stepped up its crowd-control training and promoted a cooler, more dispassionate attitude.
The solicitor's office where Rick Robbins worked began forging the first of its detailed regulations. Robbins was in on the ground floor of that effort, which was immediately targeted for special attention by the American Civil Liberties Union. At first the legal work was handled by an ACLU lawyer named Ralph Temple, who was then succeeded by Art Spitzer.
THE OPENING SKIRMISH IN THE legal battle arose when the Park Service issued its first set of comprehensive regulations in 1969. One of the more controversial provisions put strict limits on the number of protesters allowed on the sidewalk in front of the White House (100) and across the street in Lafayette Park (500). The ACLU, which believed that freedom to protest was all the more sacred in such showcase spots, challenged the regulations on behalf of a group of antiwar Quakers.
The courts issued a split decision. The Park Service won the right to require demonstrators to get a permit, to require 48-hours notice of any demonstration, and to limit protests during rush hour. But the courts agreed with the ACLU's argument that the numerical limits were too restrictive, eventually
raising the number to the current limit of 750 on the White House sidewalk and 3,000 in Lafayette Park. These limits may be waived, however, if demonstrators provide their own marshals to keep order.
The scene then shifted to the Ellipse, where the Park Service every year allowed a local civic group to set up the traditional Pageant of Peace display, complete with a stage, a burning yule log, Christmas trees, a pen of reindeer, and a petting zoo. A group of pacifists, operating under the banner of the "Women's Strike for Peace" applied for a permit to erect a mock graveyard on the Ellipse, with Styrofoam tombstones symbolizing the death toll in Vietnam. When the Park Service turned them down--on grounds that no structures were allowed on the Ellipse--the ACLU went to court again.
Noting that the Park Service had allowed the Pageant of Peace display, the court ruled that the pacifists had equal rights.
Religious symbolism in the Pageant of Peace has had an on-again, off-again history as the Supreme Court has refined its ideas about separation of church and state. When the pageant began, in 1954, it included a creche with the infant Jesus. In the 1970s, Jesus was deemed legally inappropriate and was put into storage, but further rulings in the 1980s allowed his return. In fact, religious practice now has fairly free rein on the Mall -- protected under the First Amendment's free-speech clause. In one case, in 1979, courts rejected a suit by atheist Madalyn Murray O'Hair to prevent Pope John Paul II from celebrating mass there.
Now the big issue each winter is the reindeer, which have been kept in a pen on the Ellipse near the national Christmas tree for several years. The Humane Society, acting on a complaint from an unidentified animal-rights group, inspected the reindeer enclosure last year and deemed it satisfactory, with the proviso that something be placed over the pen so people couldn't injure the creatures by throwing objects at them. This year, the Park Service decided to avoid all controversy by excluding the reindeer, in part because the rental fee on reindeer had become too expensive.
THE WHITE HOUSE SIDEWALK HAS been a popular place to mount demonstrations for years, out of the hope they will capture the attention of tourists and perhaps even the president or visiting heads of state. Many of the rules governing White House demonstrations date to the early 1980s, when people began holding longterm, round-the-clock peace vigils there-more or less living in large plywood structures filled with beds, chairs, and other belongings. A man named William Thomas, who even today continues a vigil in Lafayette Park, lived there for a there in a sort of
"sidewalk mobile home" built of wood and featuring wheels and bunk beds.
In 1983, the Park Service banned such structures--as well as large-scale signs-- from the sidewalk, and the ACLU took the agency to court on behalf of a group of women who had marched in favor of the Equal Rights Amendment with signs that were bigger than allowed. The courts sided with the Park Service, as they also did in a case involving the late Mitch Snyder, the advocate for the homeless, who was arrested for sitting on the sidewalk in a chair, which the Park Service classified as a prohibited structure.
The limitations on use of the White House sidewalk are quite detailed. No structures are allowed, and you can't leave any parcels, containers, packages, or bundles unattended--they might contain explosives. All signs or placards must be made of cardboard, poster board, or cloth (no wood allowed); they can't be bigger than three feet wide, 20 feet long, and one quarter-inch thick; and they must be in physical contact with a person at all times. You also can't tie placards on the White House fence or set up signs closer than three feet from it, which might set off the Secret Service's detectors.
There's even a rule protecting the Kodak moment: For ten yards on either side of the center point of the sidewalk, protesters with signs must keep walking so as not to impede the right of tourists to slip in and snap a picture of the presidential mansion.
THE PARK SERVICE AND PROTESTERS have always played a kind of cat-and-mouse game, in which the Park Service slaps its paw at the protesters one place only to have them pop up somewhere else that the Park Service hadn't thought to cover. So it was no surprise that the peace vigil protesters had only just been cleared from the White House sidewalk when they reappeared across the street in Lafayette Park. One woman--a Spaniard named Conception Picciotto, who continues her anti-nuclear vigil there today--erected 187 signs, many of them on eight-foot-by-four-foot plywood scrounged from Metro construction sites.
Before long, the park was crowded with other billboards, huts, beds, chairs, desks, tables, bookcases, cabinets, cans of paint, even a kitchen sink--and the Park Service began getting letters from senators and congressmen passing along complaints from constituents who thought the park had become a "sickening dump."
Rick Robbins came up with another set of anti-squatter rules custom-designed for Lafayette Park--rules the courts upheld. A person is allowed to display signs in the park--any size if they are handicapped. But if signs are stationary, they can't be larger than four feet by four feet, no individual can have more than two, and he has to stay within three feet of them at all times. No structures are allowed, except small soapboxes or stages that must be taken away when a demonstration ends.
And one other thing: Signs can't be arranged to make an enclosure of two or more sides, which rules out unsightly huts and reduces the Secret Service's anxiety about someone hiding behind a couple of signs with a missile aimed at the White House.
Virtually every line of these regulations has been litigated, and some protesters still complain that the Park Service is nitpicky and overregulates their activities. But there are others who think of the agency's rules as a model for balancing the rights of citizens to speak freely and petition the government with the rights of those who just want to use the parks for sightseeing or recreation.
In 1993, when the American Bar Association was asked by the former Soviet Republic of Belarus to help it draft legal codes for its transition to democracy, the organization put together a task force of lawyers. Among the most experienced members of the subcommittee on demonstrations were Art Spitzer and Rick Robbins.