Vigiler's Reality - Continued


"TROUBLE MAKERS" missed a very important aspect of Mr. Robbins' career. Because "camping" enforcement proved to be one of those complicated things, don't forget, Robbins reminds, I continue my vigil "even today." Not only is Mr. Robbins able to boast that he's been a anti-civil rights defendant for bar every day of his professional life, owing to his responsibility for advising the Park Police on the proper enforcement of the regulations, he has also spent a lot of time helping misrepresent reality to prosecute people who've been dragged into criminal courts to answer charges under the crimes he created.

Before their landmark CCNV Supreme Court justification, while Mr. Robbins and his cohorts were yet trying to explain why their regulatory scheme wasn't unconstitutional, Robbins specifically wrote that the "camping" regulation "was not intended to stifle First Amendment activity, but to protect areas from activities for which they are unsuited or impacts they cannot sustain." To explain why Robbins' rule would not stifle vigils, government representatives purported that people "just sleeping on the ground" would not be considered in violation of the regulation, and "one's participation in a demonstration as a sleeper becomes impermissible 'camping' when it is done within any temporary shelter erected as part of the demonstration."

On June 2, 1982, two days before Mr. Robbins' "camping" regulation was published in the Federal Register, then-President Ronald Reagan, said goodbye to White House officials,reminding them of what makes this country great.

Reaffirming the importance of freedom, on June 8, 1982 Mr. Reagan spoke to a joint session of British Parliament in macrocosmic terms: "Although nuclear weapons represent, if not the end of Mankind, at least the end of civilization as we know it.... they are necessary to protect against overreaching government, mindless bureaucracy, and secret police tactics which all combine to stifle individual freedom ... and personal excellence."

Of course, on the other hand, at times President Reagan also publicly discouraged "protests against nuclear weapons."

During fifteen years there has not been a single incident of unsuitable activities or unsustainable impacts even remotely attributable to our vigil. It's noteworthy that, although the "camping" regulation applies to all downtown federal parks, despite the huge homeless population in the federal city, but for at least four years the regulation was used exclusively, and frequently, against Lafayette Park demonstrators.

Notwithstanding Robbins' representations or Reagan's reference to "personal excellence," on June 17, 1982, while the constitutionality of the camping regulation was still hotly contested, Mr. Robbins was on the scene, personally supervising police enforcement agaist the first people arrested under the camping rule -- Concepcion and myself -- who had no shelter, and were not even sleeping.

The vexing nature of the situation laid the groundwork for boundless judicial confusion.

"I listened to the tape, and they locked the man up for going to sleep." District Court Judge William Bryant found in an earlier case. " And (Thomas) says that is part of his -- he is out there forever, 24 hours. In the face of it, it's a piddling case; but, really it is a bedeviling case."


Judge Bryant once managed to narrow the government's intentions.

"If I follow the government and find him guilty," Judge Bryant asked, "what am I supposed to do with him? He doesn't have any money. If I put him on probation, he's going to be right out there doing the same thing. The criminal penalty isn't enough to deter him, Point 1.

"Point 2, I have a hard time sleeping putting him in jail, actually, for what he did. He is such a -- I kind of tend to agree with him. He is such a minimal harm to anybody in the world. The worst criminal, put him in jail.

"Your honor, he is not a minimal harm." Assistant U.S. Attorney Eric Marcy, argued. "In the period of his being up there -- he has been there since I believe June of the previous year. During that period of time, there are charges pending that he destroyed one of these huge signs, he burned it, causing four or five thousand dollars worth of damage to one of the pillars outside of the White House. There was some concern, at least, that when he set the structure on fire, that he was inside of it and might be trying to kill himself or something. But I mean it's not like -- there has not been a danger to himself or to other people during that period of time. I mean it is not -- during that period of time -- I forget his name, the individual who was killed at the Washington Monument. There was that incident. You know, it is certainly a factual situation that gives the Park Service pause and concern."

"Well," Judge Bryant sighed, "This case you can take somewhere else. I don't know what to do with these people.

"You don't want to put them in jail, huh?"

"We are going to ask for that, your honor," Mr. Marcy said, " just because there appears to be no other -- nothing else.

"For how long? What is the maximum period of time?"

"Six months." Marcy added, "If your honor would like to send them to Sacramento to demonstrate in front of the state capitol out there, we wouldn't have any strong objection."

To the system's credit, some minimal effort was made to figure out what was going on.

"Let me ask you this," Judge Bryant reasoned, "hasn't it been one of these things where he gets arrested today for doing 'x' conduct, and then he goes back out and he does 'x' minus 'y' conduct, right? And he gets arrested. And then he goes back out and he does 'x' minus 'y' minus 'z' -- in other words, wherever you folks draw the line, he wants to stay on that line, wherever you want to draw the line....

"He plays games," the government replied.

"Well, I don't know who is playing a game, really," Judge Bryant admitted, without resolving that question.

What, does it matter who's playing games? What does it matter it the games are high or low? "Who," as Norman Mayer asked, "will be hurt by the lies of politicians?"


When he first came to the White House, President Reagan routinely entered and exited through the Pennsylvania Avenue gates. During July, 1981, a young man, who identified himself as a White House intern, struck up an acquaintance with me. He told me he was very interested in what I was doing, and that he wanted to write a book about it. Whatever his job, he worked in the White House, I saw him enter through the northwest gate more than once. At least twice he sat with me on the sidewalk, asking questions and listening to my stories for hours. On another occasion he actually walked out of the White House, across the lawn, sat on the grass, and talked to me through the fence. In many ways, I tried to explain why I believe that placing a greater value on filthy lucre than on human life produces a satanic society. Far as I know, he never wrote a book.

Shortly after the last time I saw the young intern, President Reagan delivered a speech on the north lawn of the White House after the assassination of Anwar Sadat. That was the last time I saw Mr. Reagan on Pennsylvania Avenue until he made another speech, his State of the Union Address, on January 25, 1984.

"Today a working family earning $25,000 has $1,100 more in purchasing power than if tax and inflation rates were still at the 1980 levels. Real after-tax income increased 5 percent last year. Tonight, we can report and be proud of one of the best recoveries in decades," President Reagan declared to the nation and a joint session of Congress, concluding, "Send away the handwringers and the doubting Thomases."

Usually the presidential motorcade moves quickly, but in an orderly single file. Returning to the White House after his State of the Union address, the president's entourage careened across all eight lanes of Pennsylvania Avenue. I recall trying to decide whether it was more surprising for the Presidential entourage to roar by our signs like a Roman chariot race, or because the President was using the Pennsylvania Avenue entrance .

Coincidentally, within days Concepcion and I were arrested, under the pretext of "camping," by Park Police Officer David Haynes. Just a coincidence, surely. Perhaps we'll never know, because charges in that particular case were dropped soon after we subpoenaed all White House documents concerning enforcement of the "camping" regulation.


In another case involving Officer Haynes, after listening to him testify for six days, Judge Joyce Hens Green found, "Our setting is ... a vigil that was described in the testimony of the government witnesses as, quote, the Thomas vigil, end quote.....

"Officer Haynes, the government's lead witness ... while he spoke with precision and exactitude and painstaking care, had selective memory, as earlier recited, and unable to remember even testimony that he had clearly specifically given in the court hours earlier, failed to remember making, on some occasions, earlier arrests of the defendants, [and] contradicted representations of the manner in which he inventoried the property....

"Now, the court's ruling today does not mean that the government does not have a compelling interest in enforcing its regulations concerning the use of the core memorial parks. It has, however, become unnecessary, in light of this ruling, to reach the several most significant constitutional questions that some day, some way, with perhaps other defendants, perhaps the same, will be addressed....

"To continue with this trial would transform the trial from a prosecution into a persecution, and, accordingly, the respective motions for judgment of acquittal are, as to each of the defendants, granted."

Even Mr. Robbins can't win 'em all. But, as luck, a system of minimal judicial scrutiny, a small army of professional wordsmiths, and the ravages of time would have it, Judge Green's "significant questions" have successfully evaded judicial review.


As a still-unsanctioned "camping" regulation yet wended its way toward Supreme Court legitimization, then-Secretary of Interior James Watt announced his "intent to prohibit demonstrations on the White House sidewalk, and in Lafayette Park." Mr. Robbins was assigned to put the plan into action. He probably explained to Mr. Watt how change of such magnitude must be accomplished incrementally, and described the problems in concocting a "significant government interest" to justify a rule that would abridge the constitutionally-protected status of signs and vigils on the White House sidewalk.

Back at the drawing board, Mr. Robbins first decided to portray the signs as "a threat to presidential security." Making the illusion seem reasonable to a fact finder would depend upon the careful orchestration of imaginative testimony from several security experts. Lawyers get paid for presenting the right "facts." Mr. Robbins was a lawyer working in concert with a lot of lawyers; they decided to go for it. With the Washington Times acting as the Government's cheering section, Mr. Robbins began scratching out several false starts before producing what would eventually become the White House Sidewalk Sign Regulation.

At first the First Amendment balancers were dealt a judge who paid attention while the security experts told Mr. Robbins' sidewalk security tale. After listening to the government's carefully orchestrated testimony, District Judge William Bryant noted that the stories "fell apart at the trial," and specified his reasons for finding the government's security testimony "incredible," and "unworthy of belief." He also pointed out a significant question, and explained why it escaped minimal scrutiny at the trial:

"(P)laintiffs claim that a memo from Secretary Watt, and subsequent contacts between Assistant Solicitor Robbins, a principal drafter of the regulations, and Secretary and the White House take on added significance. On January 13, 1983, a memo from Secretary of Interior James G. Watt requested a 'briefing on the regulations that allow demonstrations and protesters in Lafayette Park and in front of the White House on Pennsylvania Avenue. My intention is to prohibit such activities and require that they take place on the Ellipse.' When Assistant Solicitor Robbins spoke to Secretary Watt about the development of the regulations in March 1983, the Secretary told Mr. Robbins to 'keep up the good work.' There was also contact with the White House to inform White House counsel of the status of the regulations. Additionally, plaintiffs urge that the key fact that both versions of the regulations just happened to proscribe all of the plaintiffs' then current activities on the sidewalk cannot be regarded as mere coincidence.

"In the circumstances it would appear that plaintiffs' claim in this regard in no wise can be characterized as frivolous; however, in light of this court's disposition of this case, it need not resolve this particular issue."

History shows, mere facts are no deterrent to advocates trained in fabricating alternative realities from nothing more than clever interpretations of legal precedent. By the time Mr. Robbins' security claims, rejected by Judge Bryant, reached the court of appeals, the case name changed from ERA White House Vigil v. Watt, to ERA v. Clark. The Supreme Court's revolutionary Clark v. Community for Creative Non-Violence decision in 1984 greatly strengthened the Government's hand. They also lucked out by drawing an appeals court panel of three judges, two of whom disposed of the government's unbelievable facts on the theory that "the issue for decision on this appeal is not factual, it is legal." The two judge majority reasoned that a trial court has no "power to substitute its factual judgment for that of an agency." Essentially, the court of appeals decided, it was unnecessary for the Government to support claims of "security concerns" with credible evidence.

In the ERA, ignoring the government's "facts" that Judge Bryant found "incredible," the appeals court rendered a decision based on the legal issues according to CCNV, where the Supreme Court relied on "aesthetic values" as a "significant government interest." In a split decision two appeals court judges held that whether the government actually had any legitimate security concerns, or whether security claims were "beyond belief," was immaterial, since the signs weren't aesthetically pleasing.

"Because of their subjective nature," Judge Wald dissented, in part, "aesthetic concerns are easily manipulated, and not generally susceptible of objective proof. The danger is not just, as the majority suggests, that government might adopt an aesthetic rationale as a pretext for an impermissible motive, but rather that so many forms of robust expression are by their very nature boisterous, untidy, unsightly, and downright unpleasant for unsympathetic viewers."

Perhaps it was at this "aesthetic" point that Mr. Spitzer began defending the First Amendment in Yosemite Park; in any case it was at this point that he stopped defending it in Lafayette Park.

Aesthetic national security, or a scam?


Some relevant facts, which transpired immediately prior to the White House sidewalk regulation, escaped the courts' attention, and might have evaded all judicial documentation, except for another minor government setback on the criminal front.

On March 11, 1983, just two days after their second meeting, when Mr. Watt told him to "keep up the good work" -- a full four months BEFORE the promulgation of the regulations which transformed "signs" into "structures," and eighteen months before the Court of Appeals gave its stamp of approval to those regulations -- Mr. Robbins supervised a concerted action involving U.S. Park Police, Secret Service and D.C. Metropolitan Police officers. This formidable group succeeded in removing our signs from the sidewalk, and putting me in jail. Because this concerted action violated the First Amendment, as it stood at the time, the signs were back on the sidewalk in two days. But I was forced to deal with a trumped-up felony destruction of property charge.

Eventually the D.C. Appeals Court vindicated me. The court concluded, quite correctly, "that the ultimate issue in the present case is Thomas' subjective state of mind." However, the findings of undisputed fact in that case again fell short of answering other significant questions, as the court merely held:

"Much of the evidence at trial was undisputed. Since June 1981, Thomas had been maintaining a vigil in front of the White House, expressing his opposition to nuclear weapons and mendacious politicians.

"During the period of his vigil, the regulations governing the display of signs and structures in front of the White House had frequently changed. Thomas testified that he had attempted to accommodate the various revisions in the regulations in order to ensure that his protest remained lawful. He claimed that he had been repeatedly arrested, beaten, harassed and otherwise mistreated by the police in retaliation for his activities."

"In early 1983, Thomas and fellow-participants in the vigil were using three large wooden protest signs or structures to bring their message to the public. Each of these contraptions consisted of several painted plywood panels attached to wooden frames mounted on wheels. The sign which Thomas ultimately set on fire depicted an alarming mushroom-like cloud on the front, with the words:


appearing in the boldest letters on the (presumably) nuclear mushroom....

"On March 11, 1983, Thomas and his fellow demonstrators were advised by representatives of the federal and District of Columbia governments that they would have to remove their demonstration paraphernalia. United States Park Police officials, who were accompanied by two attorneys from the Department of the Interior, advised the group that the applicable regulations forbade the placement of 'structures' such as those used by the demonstrators on the White House sidewalk. Representatives of the Metropolitan Police Department (MPD) told Thomas that he could not leave the contraptions in front of the Old Executive Office Building, or anywhere else on public property in the District, because they constituted 'living abodes.' Thomas was warned that he would be subject to arrest if he failed to remove the allegedly offending entities.

"Thomas initially remonstrated with the officials, challenging the legal basis for their actions. He contended that the activities now being prohibited had been permitted for several months and that the 'signs' were neither 'structures' nor 'abodes....'

"Thomas testified, for example, that Captain Canfield of the MPD told him that if he did not remove the signs or structures he would be arrested for vagrancy. Thomas pointed out, correctly, that the District has no valid vagrancy law.

"An hour or more after these discussions, Thomas set fire to Revelation from inside by pouring some kerosene on the floor and lighting it with a cigarette lighter. He then came out and began to address the law enforcement officials gathered outside. As he recalled on the stand, he told the group:

"'I'm tired of this ****. You people are a bunch of hypocrites. You claim to he concerned with protecting freedom and individual rights and yet you are constantly harassing me, trying to prevent me from speaking my mind.'

"He would have said more, but one of the officers noticed what had happened and stated 'Look, it's on fire.' A second officer yelled 'Arson! Arson! Arrest him!' Thomas related that he fell to the ground and went limp, in conformity with the teachings of Gandhi, Martin Luther King and Jesus. The officers squatted on his back and handcuffed him while he yelled 'Democracy is dead! Long live the police state!'"

In clearing me of criminal charges, the court did not reach significant questions concerning subjective states of mind relating to the nature of Mr. Robbins' "good work," Mr. Watt's "intention to prohibit demonstrations," the various police agents working in concert, or any relation to my claims of being "repeatedly arrested, beaten, harassed and otherwise mistreated by the police in retaliation for my activities."

Mr. Spitzer was in on the ERA case too, and was aware of this incident, but didn't inquire about facts like why the combined law enforcement team, under Mr. Robbins' supervision, was threatening to arrest me for signs which were not yet illegal, or whether there was any connection between Mr. Robbins' meeting with Mr. Watt, and the sign removal operation.

While we experienced the crushing effect of police enforcement under color of his regulatory schemes -- at that point I'd been arrested almost twenty times in as many months -- Mr. Robbins, encouraged to new heights of exaggeration, began spinning the next stage of his regulatory web. Watching Mr. Robbins & Company nickel and dime the First Amendment to death, I decided to determine whether U.S. justice was indeed a two edged sword, or if it cut only as the government decreed.

Vigil Continued

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