1601 Pennsylvania Avenue

Vigiler's Reality - Continued

OLD REGULATIONS -- NEW INTERPRETATIONS

In "1984" Big Brother said, "Freedom is Slavery." George Bush said, "Free Kuwait." Despite the facts that Kuwait remains a monarchy, and the price of gas has risen, Mr. Bush's made for T.V. Gulf War was popular, or so it seemed on T.V. where every channel showed patriotic Americans supporting the troops. One of the few sour media notes was the 24 hour-a-day drum vigil which began in the Park on the day bombing of Baghdad started. This novel form of dissent received considerable attention and attracted many participants, despite police pulverization.

The groundwork for silencing the drums was laid in a press conference on January 25th, when President Bush claimed, "Those damned drums are keeping me awake all night." On February 5, 1991, the misrepresentation became evident when Mr. Bush characterized his "damned drums" statement as "hyperbole," admitting that he couldn't hear the drums, because his "living quarters are on the other side of the house."

Mr. Robbins dredged up a regulation that prohibited noises in excess of 60 decibels in wilderness areas. On January 27th, under Mr. Robbins' direct supervision, a pattern and practice of enforcement began which discouraged, disrupted, and finally ended all noticeable public opposition to war in Lafayette Park. According to the Washington Post, the police action resulted in over 120 arrests, only two of which were prosecuted. In the first trial District Judge Thomas Penfield Jackson found defendant Paul Saffer "not guilty," ruling that, although the government had established the defendant had been part of a group that violated the 60 decibel limit, it had not established the defendant had violated the limit.

Two days later, in the second case, Judge Royce Lamberth ruled that although the government had not proven defendant Diana Nomad had violated the decibel limit, it had shown that she was part of a group that exceeded the limit and was, therefore, "guilty." Long after the war ended, the Court of Appeals finally reversed Nomad's conviction, holding that it was illogical to enforce a 60 decibel limit intended for wilderness areas against the urban 75 decibel background noise in Lafayette Park, and that application of the regulation was also unconstitutional because it interfered with protected expression. But, since that ruling came too late to protect anti-war dissent, it wasn't enough to halt the continued effort to limit individual liberty.


REGULATION #4 -- "THREE CUBIC FEET," 1992

"Section 7.96 of the Code of Federal Regulations may not sound much like an instrument of oppression." Legal Times reported in its January 28, 1991 edition. "But to protesters of the Persian Gulf war and their lawyers in Washington, it is the next brick in the wall the government is building to obstruct domestic political dissent."

After Concepcion was convicted of violating the Notice which Mr. Robbins had relied on in the camping trial that sent Ellen, Philip, Sunrise and me to prison, the Court of Appeals reversed, holding that "the rule was null and void." The Court drew a line, concluding, "Before a person is threatened with jail for such a violation, the government must ensure that the rule itself is not in violation of the law. The government cannot meet that burden in this case."

It was back to the drawing board for Mr. Robbins. This time, having less "factual concerns" to work with, Mr. Robbins was forced to rely almost exclusively on "public opinion" concerning "aesthetics." Fortunately, for Mr Robbins, his previous "camping," "White House sidewalk," and "Lafayette Park sign size" victories, enjoyed a firm legal foundation for further constitutional erosion.

"The conviction against a defendant charged with a violation of the rule restricting the storage of certain property in Lafayette Park. The conviction was reversed because the storage of property rule had not been published for notice and comments pursuant to the Administrative Procedure Act," Mr. Robbins eventually explained, referring to Concepcion as a justification for writing the 3 cubic foot rule.

Once again, we attempted to protect the status quo through civil litigation. In this match the vigil scored a preliminary knock down in the first round: after two hearings Judge Stanley Sporkin granted us a Temporary Restraining Order against the government. But fate, or some unknown internal judicial machinations, then dealt us a heavy blow when further proceedings in the case were referred yet again to Judge Richey.

After public sentiment was tallied, the Park Service had received fifty-two written comments. Two comments supported the proposed rule, one opposed the rule as excessively lenient; forty-nine commenters, including one petition with approximately three thousand signatures, opposed the proposed rule. In his disposition of the case, Judge Richey simply ignored the issues which were the basis of Judge Sporkin's TRO, in favor of "aesthetics."

"Although many people signed petitions and wrote letters in opposition to the storage regulation," Judge Richey finally figured, "the agency is not obligated to base its rulemaking purely on a tally of the number of letters."


HOW A NEW STATUS QUO JUST SNUCK IN

No, Lafayette Park hasn't always been like this, children. Once upon a time it was the symbol of a free, open, democratic nation. In those days people weren't as frightened as they are today. Few ever imagined a day when the Park would look like a paramilitary base. In those days it was unimaginable that the most famous street in the world might be closed, and even harder to imagine that it would be closed "unilaterally, without any consultation with the District of Columbia." But it didn't happen in a vacuum, the stage was set incrementally.

The first time in human history that Pennsylvania Avenue and sections of the Park were closed under the guise of fear was on September 22, 1987. On September 21st the Park Service delivered a notice to us, explaining the closure was necessary "for safety reasons during a brief fireworks display." Due to the short notice, there was little we could do to challenge the closure, but suspected the unprecedented action was the precursor of future incursions.

Thus, we were appalled, but not surprised, when, on the occasion of Mikhail Gorbachev's first visit to the United States, the Park Service sent notices, advising us to remove ourselves from certain sections of the Park when instructed to do so by the police. This time we went to court, arguing, "They can't do this; Lafayette Park isn't Red Square."

"Security," the government argued, claiming it was a one shot deal, extraordinary circumstances, wouldn't happen again, and was just going to be for "short periods."

Judge Oberdorfer let them get away with it, noting that although the government could remove our persons from sections of the Park, our signs would be allowed to remain. The purported "security concerns" escaped judicial inquiry when Judge Oberdorfer cancelled the Preliminary Injunction hearing, reasoning that the case was moot because Gorbachev's visit was over.

Next time, on the occasion of Mikhail Gorbachev's second visit to the United States, the Park Service sent notices advising us to remove ourselves from certain sections of the Park when instructed to do so by the police. Again we went to court with the same arguments. Again the government repeated its arguments. This time Judge Joyce Hens Green let them get away with it. Again the purported "security concerns" escaped judicial inquiry when Judge Green cancelled the Preliminary Injunction hearing, reasoning that the case was moot because Gorbachev's visit was over.

After that these "security concerns" arose more and more frequently. We nearly resigned ourselves to the belief that legal challenges to these one--shot short time closures were futile. Except, in September, 1994, the S.S. expanded the concept. This time they claimed that because President Clinton was going to stay in the Blair House while workers removed asbestos from the White House, they were forced to close much larger sections of the Park, for a much longer time, and in addition to removing ourselves, this time our signs must also be removed.

Reluctantly, we took the same arguments back to court. After all, if the government succeeded in removing our signs from their closed area we had nothing further to lose. Although the government could not explain why it needed a 1500 foot "security perimeter" on the Park side of the Blair House, while a 200 foot perimeter was deemed sufficient on the more vulnerable 17th street side, Judge Richey let them get away with it this time. As usual the "security concerns" escaped examination when Judge Richey cancelled the Preliminary Injunction hearing, reasoning that the case was moot because the President had moved back into the White House.

On May 20, 1995, when we realized the symbol of freedom and openness had been surrounded by an army of security agents during the dead of night, we were concerned. Today it’s these temporary concrete Jersey traffic barriers; tomorrow it’ll be something a little more aesthetically pleasing, and far more permanent, we predicted.

On May 26, 1995, I carried my "Wanted: Wisdom and Honesty" sign into the middle of the closed Avenue. I was arrested, charged with failure to obey a police officer. The charges were dropped. Those circumstances prompted us to make what may, or may not, be the final attempt to force a judicial review of the alleged security concerns. On May 30, 1996 Ellen, Concepcion and I filed another civil complaint, claiming that the Secret Service had placed itself above the law by closing the street in the stealth of night, and that governement "security claims" where imaginary.

That attempt met a dead end when, against heavy odds, the case wound up in front of Judge Richey, who dismissed our claims, citing "official immunity," and holding that we lacked standing to bring the claim.


IT DOESN'T INVOLVE A LOT OF MONEY,
AND SOME MAY NOT THINK IT PRETTY, BUT IT
USED TO BE IMPORTANT

Ann Bowman Smith, Team Manager for the Comprehensive Design Plan for the White House and President's Park, once told me, When I see people with signs in Lafayette Park, I say to myself, ‘They are holding my place, if there ever comes a day when something becomes so troubling that I have to speak out about it, they will have saved a place for me to say it.

Our expressive activities have never enjoyed broad public appreciation. Still, Diogenes wasn't greatly appreciated by his contemporaries either. I don't think Diogenes had to deal with the likes of Messrs Robbins and Spitzer, but Socrates did. True, we have not suffered the degree of intense social displeasure Socrates inspired. But Ellen and I have been sentenced to federal prison for novel "crimes" which, except for the nihilism of Mr. Robbins' pen, would still be constitutionally protected activity.

I think Ann Bowman Smith has cause to be concerned. From a microscopic point of view, the degree society has changed as a result of Robbins' and Spitzer's machinations was illustrated by a recent experience. On April 6. 1996, for reciting the First Amendment in an unamplified voice loud enough to be heard across Pennsylvania Avenue, I had my nose bloodied, was arrested, charged with assaulting a police officer, had thirty dollars stolen -- or at least misplaced -- by the Secret Service, and spent two days in jail before charges were dismissed.

In 1981 none of that would have happened under the then-existing First Amendment status quo in Lafayette Park. For one thing, the S.S. stayed behind the White House fence, protecting the president; interference with public dissent was the sole purview of the U.S. Park Police.

We might be nothing more than "the park crazies," but we're crazies who put an initiative on the ballot and a bill in Congress that's eliciting increasing support. Historically, institutions have greeted "crazy" ideas with hostility. Had the establishment ot the Dark Ages gotten it's way the crazy idea that the earth revolved around the sun would have died at the stake with Giordano Bruno. What's really crazy is thinking that the regulations in Lafayette Park -- although, perhaps, aimed directly at "park crazies" -- haven't diminished the rights of every person in the United States.

In May, 1996, I watched in dismay as Park Police hauled away people who knelt on the White House sidewalk, praying that the government would release documents relating to CIA involvement in the torture and rape of Sister Dianna Ortiz. The Police were acting under "our" White House sign regulation. From my perspective, it looked bizarre, because the people were just kneeling there, without signs, and the regulation only prohibits kneeling WITH a sign. The next day people were arrested for merely standing still, without signs.

Remember Ronald Reagan's first inaugural address? Remember how he used "freedom" more than any other word, and emphasized cutting restrictive regulations? Remember how the United States was morally bound to initiate nuclear winter, if necessary, to insure that the precious right of U.S. citizens to exercise freedom of thought, expression and assembly in public places would never be abridged?

In addition to causing a degree of government consternation, and a considerable body of judicial opinion, my presence at the White House gates has been documented through the eyes of dozens of reporters and participants. I have been labeled "philosopher," "crackpot leftist," "idealist," "pitiable lunatic," "prophet," "bum," "public nuisance," "wave of the future," "eyesore," "criminal."

"Officially," how the vigil relates to any, all, or none of those labels has never been determined. My personal marathon attempt to wrest some factual determinations from the fact finding system ended when, apparently swayed by the bare bones factual determinations of Judge Bryant and Magistrate Burnett, Justice White said he "would grant the petition (for a writ of certiorari), vacate the judgment and remand the case to the United States Court of Appeals for the District of Columbia Circuit for further consideration" (Thomas, et. al. v. Ronald Regan (sic) et. al., 113 S.Ct. 2397 (1993)). But Justice White was only dissenting, and the majority of the Supreme Court wasn't interested in the facts, so the question remains, did "long-term, round-the-clock peace vigils" conspire to successfully manipulate well-intentioned public officials into subverting the Constitution, or did they just do it on their own?

Mr. Robbins is free to chuckle about all the First Amendment suits he has beaten, in courts which weren't troubled by the facts. Yet his pyrrhic triumphs do not prove a fact finding system which doesn't find facts, or a justice system that facilitates injustice, are anything more than confused, complicating oxymorons.

If, as "TROUBLE MAKERS" concluded, "free expression in the nation's capital isn't simple," the record shows Robbins and Spitzer played major roles in engineering the present complexity. If democracy is dead, perhaps Robbins and Spitzer composed the footnotes and crafted the framing for the execution order. If they did, the question is, "Why?"

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